Rowe v. Bell & Gossett Co.
| Decision Date | 11 September 2019 |
| Docket Number | 081602,A-16 September Term 2018 |
| Citation | 218 A.3d 784,239 N.J. 531 |
| Parties | Donna ROWE, individually and as Executrix and Executrix ad Prosequendum of the Estate of Ronald Rowe, Plaintiff-Respondent, v. BELL & GOSSETT COMPANY, a subsidiary of ITT Industries; Borg Warner Morse TEC, f/k/a Borg Warner; Bryant Manufacturing, n/k/a Carrier Corp.; Burnham LLC, individually and as successor to Burnham Corporation, individually and as successor-in-interest to Federal Boiler and Radiator Co.; Crane Co., individually and as successor to Jenkins Valves, Inc., a/k/a Jenkins Bros.; Crane Pumps & Systems, Inc.; Dana Companies, LLC, f/k/a Dana Corporation, individually and as successor-in-interest to Victor and Spicer; ECR International, Inc., as successor-in-interest to Dunkirk Radiator Corporation; General Electric Company; General Plumbing Supply, Inc., as successor-in-interest to Ridgewood Corp.; HB Smith Co., Inc.; Honeywell International, Inc., f/k/a Allied Signal, Inc., as successor-in-interest to The Bendix Corporation ; J.H. France Refractories Company; Johnson Controls, Inc., individually and as successor-in-interest to York International Corp.; Lennox Furnace Co., a/k/a Lennox Industries; Nutley Heating & Cooling Supply Company; Peerless Industries, Inc. f/d/b/a Peerless Heater Co.; Ridgewood Corp.; Sid Harvey Industries, Inc.; Trane US, Inc., as successor to American Standard Inc.; Union Carbide Corp.; Weil-McLain Company, Inc.; Compudyne Corporation, individually and as successor to York-Shipley; New Jersey Plumbing Group, LLC, d/b/a Blackman Plumbing Supply Company, Inc., as successor-in-interest to Orange County Plumbing Supply Company and Ridgewood Corporation; Orange County Plumbing Group, LLC, as successor-in-interest to Orange County Plumbing Supply Co. and Ridgewood Corporation; York International, Inc., Defendants, and Hilco, Inc., as successor-in-interest to Universal Engineering Co., Inc., Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Patricia M. Henrich argued the cause for appellant (Reilly, McDevitt & Henrich, attorneys; Patricia M. Henrich, Philadelphia, and Brandy L. Harris, Winston-Salem, on the briefs).
Amber R. Long argued the cause for respondent (Levy Konigsberg, attorneys; Amber R. Long, New York, on the briefs).
Marc S. Gaffrey argued the cause for amicus curiae New Jersey Defense Association (Hoagland, Longo, Moran, Dunst & Doukas, attorneys; Marc S. Gaffrey, New Brunswick, on the brief).
Michael G. Donahue argued the cause for amicus curiae New Jersey Association for Justice (Stark & Stark, attorneys; Michael G. Donahue, Lawrenceville, on the brief).
McCarter & English, and Gibbons, et al., attorneys for amici curiae Honeywell International, Inc., et al. (John C. Garde and Wilfred P. Coronato, Newark, of counsel and on the brief, Kim M. Catullo and Ethan D. Stein, New York, of counsel, and Steven H. Del Mauro, Newark, on the brief).
McGivney, Kluger & Cook, et al., attorneys for amici curiae Ace Plumbing & Electrical, et al. (Thomas B. McNulty, William D. Sanders, and Trish L. Wilson, Florham Park, of counsel and on the brief).
Pursuant to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, and the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 to -5, a defendant may seek the allocation of a percentage of fault to a codefendant with whom the plaintiff has settled.
Krzykalski v. Tindall, 232 N.J. 525, 534-37, 181 A.3d 981 (2018) ; Young v. Latta, 123 N.J. 584, 593-96, 589 A.2d 1020 (1991). If the factfinder assigns a percentage of fault to a settling defendant, the trial court molds the judgment so that the allocation operates as a credit against the plaintiff's recovery of damages. See N.J.S.A. 2A:15-5.2(d) ; Young, 123 N.J. at 595, 589 A.2d 1020 ; Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 569, 410 A.2d 674 (1980).
This appeal arises from the trial court's judgment in an asbestos product liability action. Plaintiffs Ronald Rowe and Donna Rowe alleged that Ronald Rowe contracted mesothelioma
as a result of exposure to asbestos-containing products sold by defendants. Eight defendants settled with plaintiffs prior to trial.
At trial, the sole remaining defendant offered into evidence excerpts from the settling defendants' interrogatory answers and deposition testimony given by those defendants' corporate representatives. In the answers to interrogatories and corporate representative depositions, the settling defendants made statements contrary to their interests in this case and other asbestos product liability matters that were pending against them at the time the statements were made.
In support of its argument that the interrogatory answers and deposition testimony should be admitted at trial, the non-settling defendant relied on three exceptions to the rule against hearsay: N.J.R.E. 804(b)(1) (); N.J.R.E. 803(b)(1) (); and N.J.R.E. 803(c)(25) (statement against interest). Plaintiffs objected to the admission of the evidence and opposed any allocation of fault to the settling defendants.
The trial court excluded portions of the disputed discovery material, but admitted into evidence excerpts from the interrogatory answers of all eight settling defendants and portions of the deposition testimony of six of those defendants' corporate representatives. The court permitted the jury to consider allocating a percentage of fault to the eight settling defendants.
The jury returned a verdict in plaintiffs' favor, but found that the non-settling defendant met its burden to prove that the settling defendants bore some measure of fault. The jury allocated a percentage of fault to each of those defendants, thus reducing plaintiffs' recovery of damages against the non-settling defendant.
Plaintiffs appealed the trial court's judgment. The Appellate Division reversed that judgment, holding that the trial court had improperly admitted the settling defendants' interrogatory answers and deposition testimony. It remanded the case to the trial court for a new trial with respect to the allocation of fault.
We hold that the disputed excerpts from the settling defendants' interrogatory answers and corporate representative depositions were admissible as statements against interest under N.J.R.E. 803(c)(25). At the time that the settling defendants made those statements, each statement was "so far contrary" to those defendants' "pecuniary, proprietary, or social interest[s]," and "so far tended to subject" the defendants "to civil ... liability," that "a reasonable person in [defendants'] position would not have made the statement unless the person believed it to be true." See ibid. Those statements, in combination with other evidence presented at trial, gave rise to a prima facie showing that the settling defendants bore some fault in this matter. The trial court properly submitted to the jury the question of whether a percentage of fault should be apportioned to the settling defendants.
Accordingly, we reverse the Appellate Division's judgment and reinstate the judgment entered by the trial court in accordance with the jury's allocation of fault.
We derive our summary of the facts from plaintiffs' complaint, the deposition testimony of plaintiff Ronald Rowe, and other documents in the trial record.
Plaintiff Ronald Rowe, born in 1931, was diagnosed with mesothelioma
in March 2014. He and his wife, plaintiff Donna Rowe, alleged that his mesothelioma resulted from exposure to asbestos for more than three decades. Plaintiffs contended that Ronald Rowe worked with asbestos-containing brakes, clutches, and gaskets while repairing his personal vehicles from 1949 until the late 1970s and while employed as a mechanic in a car dealership from 1952 to 1954. Rowe testified that in his automotive repair work, he used clutches, brakes, and other equipment manufactured by several of the defendants named in plaintiffs' action.
Plaintiffs further asserted that Ronald Rowe was exposed to asbestos while working as a boiler serviceman for various businesses, and for his own business, from 1954 through his retirement in 1985. Rowe testified that his job duties during those time periods included mixing asbestos-containing dry furnace cement while installing and servicing boilers, as well as removing hardened asbestos-containing cement while repairing and removing heating equipment. He stated that he also disassembled pipes, conducted regular maintenance on boilers, and installed new commercial and residential heating equipment. Rowe stated that in performing those tasks, he was exposed to asbestos-containing boilers, furnaces, burners, pumps, valves, insulation, and gaskets, as well as dust from asbestos-containing cement.
Plaintiffs filed an asbestos product liability action against twenty-seven defendants, pleading claims for strict liability based on the alleged breach of the duty to warn, negligence, and the breach of express and implied warranties. Plaintiff Donna Rowe also asserted a per quod claim. Plaintiffs sought compensatory and punitive damages, attorneys' fees, costs, and other relief.
Plaintiffs alleged that some defendants were manufacturers and/or sellers of asbestos-containing products to which Ronald Rowe was exposed, and that other defendants were successors in interest to entities that had been manufacturers or sellers of such products.
One defendant named in plaintiffs' complaint was Hilco, Inc. Plaintiffs alleged that Hilco is the successor in interest to an entity no longer in existence, Universal Engineering Co., Inc., a seller of asbestos-containing dry cement. Hilco disputed plaintiffs' allegation that it was a successor in interest to Universal Engineering Co., Inc., and denied that it was liable for Ronald Rowe's alleged exposure to that company's products.1
The matter was assigned to the Law Division judge designated to conduct centralized case...
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