Arcell v. Ashland Chemical Co., Inc.

• Decision Date: 14 July 1977
• Citation: 378 A.2d 53,152 N.J.Super. 471
• Parties: Charles ARCELL et al., Plaintiffs, v. ASHLAND CHEMICAL CO., INC., et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Third-Party Defendants. George WARBECK et al., Plaintiffs, v. ASHLAND CHEMICAL CO., INC., et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Third-Party Defendants. Albert MURPH et al., Plaintiffs, v. ASHLAND CHEMICAL CO., INC., et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Third-Party Defendants. Charles ARCELL et al., Plaintiffs, v. COLGATE PALMOLIVE CORP. et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Third-Party Defendants. Eleanor M. BERGER, Individually and as Executrix of the Estate of Edward Berger, Deceased, Plaintiff, v. DEWEY & ALMY CHEMICAL DIVISION, W. R. GRACE CO. et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Third-Party Defendants. Edward WILCZEK et al., Plaintiffs, v. UNION CARBIDE CORP. et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Third-Party Defendant. Vera DIANA et al., Plaintiffs, v. UNION CARBIDE CORP. et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Defendants.
• Court: New Jersey Superior Court

Page 471

152 N.J.Super. 471

378 A.2d 53

Charles ARCELL et al., Plaintiffs, v. ASHLAND CHEMICAL CO., INC., et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Third-Party Defendants.

George WARBECK et al., Plaintiffs, v. ASHLAND CHEMICAL CO., INC., et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Third-Party Defendants.

Albert MURPH et al., Plaintiffs, v. ASHLAND CHEMICAL CO., INC., et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Third-Party Defendants.

Charles ARCELL et al., Plaintiffs, v. COLGATE PALMOLIVE CORP. et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Third-Party Defendants.

Eleanor M. BERGER, Individually and as Executrix of the Estate of Edward Berger, Deceased, Plaintiff, v. DEWEY & ALMY CHEMICAL DIVISION, W. R. GRACE CO. et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Third-Party Defendants.

Edward WILCZEK et al., Plaintiffs, v. UNION CARBIDE CORP. et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Third-Party Defendant.

Vera DIANA et al., Plaintiffs, v. UNION CARBIDE CORP. et al., Defendants and Third-Party Plaintiffs, v. AMERICAN CAN COMPANY et al., Defendants.

Superior Court of New Jersey, Law Division.

July 14, 1977.

Mendel White and George M. Kachmar, Jersey City, for plaintiffs Arcell et al. (Guarini & Guarini, Jersey City, attorneys).

Daniel Herman, Newark, for plaintiff Berger (Kohn, Soperstein & Needle, Newark, attorneys).

William B. McGuire, Newark, for defendants and third-party plaintiffs PPG Industries, Inc. and Radiation Polymer Co.; lead counsel for all defendants except Manufacturing Chemists Assoc., and M & T Chemicals, Inc. (Lum, Biunno & Tompkins, Newark, attorneys).

George L. Benninger, Jersey City, for defendant and third-party plaintiff Skelly Oil, Inc.; associate lead counsel for all defendants except Manufacturing Chemists Assoc., and M & T Chemicals, Inc. (Schumann, Hession, Kennelly & Dorment, Jersey City, attorneys).

Frank L. Bate, Newark, for defendant and third-party plaintiff Manufacturing Chemists Assoc. (Shanley & Fisher, Newark, attorneys).

Clyde A. Szuch, Morristown, for third-party defendant and fourth-party plaintiff American Can Co. (Pitney, Hardin & Kipp, Morristown, attorneys).

Joseph F. Kelly, Jr., New York City, for fourth-party defendant E. I. DuPont de Nemours & Co. (Townley & Updike, New York City, and McElroy, Connell, Foley & Geiser, Newark, attorneys).

Bernard T. Hein, Hackensack (Hein, Smith & Berezin, Hackensack, attorneys) and William John Schmelz, Hackensack (Lowenstein, Sandler, Brochin, Kohn & Fisher, Newark, attorneys) for defendant and third-party plaintiff M & T Chemicals, Inc.

Schwartz & Andolino, Newark, for defendant and third-party plaintiff Inmont Corp.

Kenneth vonSchaumburg, Union City, for defendant and third-party plaintiff Sun Chemical Co. and General Printing Ink (Moser, Roveto, McGough Schaumburg, Union City, attorneys).

Martin B. Wallerstein, Livingston, for defendant and third-party plaintiff Ashland Chemical Co. (Morgan, Melhuish, Monaghan & Spielvogel, Livingston, attorneys).

Amy R. Piro, Newark, for defendant and third-party plaintiff Glidden-Durkee Div. of SCM Corp. (Young, Rose & Millspaugh, Newark, attorneys).

Donald Zarin, Elizabeth, for defendant, and third-party plaintiff Texaco, Inc. (Sills, Beck, Cummis, Radin & Tischman, Newark, attorneys).

Donald R. Thorsen, Newark, for defendant and third-party plaintiff Eastman Chemical Products Inc. (Hansen, Pantages, Seller & Zavetsky, Newark, attorneys).

Melvin S. Whitken, East Orange, for defendant and third-party plaintiff Dewey & Almy Chemical Div. of W. R. Grace Co. (Gorrin & Ironson, East Orange, attorneys).

Kenneth J. Doukes, Jr., New Brunswick, for defendant and third-party plaintiff Vita Var Div. of Textron, Inc. (Cohen, Hoagland, Keefe & Oropollo, New Brunswick, attorneys).

Frederick L. Heissenbuttel, Paterson, for defendant and third-party plaintiff Union Carbide Corp. (DeYoe, Guiney & Raziano, Paterson, attorneys).

TARLETON, J. S. C.

In these seven products liability cases, third-party defendant and fourth-party plaintiff American Can has renewed its motion for dismissal of the third-party complaints and has moved for dismissal of fourth-party defendant DuPont's counterclaim for express indemnification.

Plaintiffs are present or former employees of American Can who worked at various New Jersey locations between 1969 and 1975. They name as defendants various manufacturers or suppliers of chemicals delivered to American Can for use in its manufacturing operation, and the Manufacturing Chemists Association (MCA), a company engaged in standardizing labeling requirements for chemicals intended for industrial use. The complaints are based upon negligence, strict liability and breach of warranty. Plaintiffs allege that they were exposed to poisonous fumes and vapors causing severe personal injuries or death for which they seek damages.

In Arcell ¹ 703 plaintiffs sue 32 defendants; in Kurela/Warbeck 136 plaintiffs sue 32 defendants; in Berger plaintiff sues 32 defendants; in Diana 59 plaintiffs sue 32 defendants, and in Wilczek 52 plaintiffs sue 32 defendants. Diana and Wilczek have been stayed until further order of the court. American Can is a third-party defendant in the seven cases and has fourth-partied DuPont seeking indemnification and contribution.

In a letter opinion of January 14, 1976 American Can's original motion to dismiss the third-party complaints under R. 4:6-2(e) in the Arcell and Kurela/Warbeck actions was denied without prejudice pending completion of discovery. Orders were entered on January 23, 1976; American Can's motions for leave to appeal were denied by the Appellate Division on March 30, 1976 and the Supreme Court on May 18, 1976. American Can renews its motion to dismiss the third-party complaints, relying on recent decisional authority that it contends precludes its continued participation as a third-party defendant for contribution or indemnification. It also seeks to dismiss DuPont's counterclaim for express indemnification.

The third-party complaints seek contribution under the New Jersey Joint Tortfeasors Act, N.J.S.A. 2A:53A-1, and the Comparative Negligence Act, N.J.S.A. 2A:15-1; common law indemnification; a declaration that the Joint Tortfeasors Act, the Comparative Negligence Act and the exclusive remedy provision of the Workers' Compensation Act, N.J.S.A. 34:15-8, are unconstitutional; and orders under R. 4:18-1(c) permitting inspection of American Can's plants, the production of documents, use of interrogatories, requests for admissions and depositions. DuPont seeks express indemnification based upon language appearing in its invoices of products shipped to American Can.

In resisting American Can's motions defendants marshall the following arguments: American Can breached a duty owed them to use the chemicals in accordance with the warnings and instructions supplied to it in light of its detailed knowledge of the particular environment in which the chemicals were to be used; the products furnished were mixed and combined by American Can for particular commercial and industrial processes in a manner not reasonably foreseeable by defendants; American Can did not independently test and analyze the properties and characteristics of the supplied chemical combinations and did not implement appropriate precautions and safeguards; American Can was aware of the hazards associated with the use of the chemicals supplied from its own experience, from its own environmental tests and from tests conducted by state and federal agencies; American Can negotiated with representatives of plaintiffs' union and representatives of various government organizations to allow it to ignore or delay implementation of health and safety measures.

Defendants further rely upon the existence of a "special legal relationship" to claim indemnification and cite prematurity and incomplete discovery as additional reasons mandating denial of American Can's renewed motion.

CONTRIBUTION

Defendants project three arguments in support of their contribution claim against American Can. First, they argue that Farren v. New Jersey Turnpike Auth., 31 N.J.Super. 356, 106 A.2d 752 (App.Div.1954), has been impliedly overruled by the Comparative Negligence Act. If their contribution argument should fail, defendants urge that American Can remain in the case on the authority of Connar v. West Shore Equipment of Milwaukee, 68 Wis.2d 42, 227 N.W.2d 660 (Sup.Ct.1975). Lastly, they seek the benefit of the "Murray Credit" doctrine as reported in Murray v. United States, 132 U.S.App.D.C. 91, 405 F.2d 1361 (D.C.Cir.1968).

Farren held that a tortfeasor may not obtain contribution from an employer subject to the Workers' Compensation Act. Since an employer covered by the Compensation Act is not liable in tort to its employee, the employer is not a "joint tortfeasor" within the meaning of the Contribution Act. Farren, supra, 31 N.J.Super. at 360-361, 106 A.2d 752. Public policy as expressed in the Workers' Compensation Act supports this view, for to allow a third party to obtain contribution from an employer would effectively hold the employer liable to the employee for negligence which is expressly prohibited by the Workers' Compensation Act. Adler's Quality Bakery Inc. v. Gasteria, Inc., 32 N.J. 55, 75, 159 A.2d 97 (1960). While the wisdom of this rule has been questioned, see, e. g., Mitchell, "Products Liability, Workmen's Compensation and the Industrial Accident," 14 Duquesne L.Rev. 349 (1976), it is the law of our State, and this court is obliged to follow Farren. Franco v. Davis, 51 N.J. 237, 238, 239 A.2d 1 (1968).

To support their position that Farren has been impliedly overruled by the adoption of the Comparative Negligence Act, defendants cite N.J.S.A. 2A:15-5.3, which...