Bigelow v. Acands, Inc.
| Decision Date | 12 August 1993 |
| Parties | Thomas BIGELOW et al., Plaintiffs-Respondents, v. ACANDS, INC., et al., Defendants, and The Celotex Corporation, etc., Defendant-Appellant. Pearl GLASER, etc., et al., Plaintiffs-Respondents, v. AMCHEM PRODUCTS, INC., et al., Defendants, and The Celotex Corporation, etc., Defendant-Appellant. Anna RATTIEN, etc., Plaintiff-Respondent, v. AMCHEM PRODUCTS, INC., et al., Defendants, and The Celotex Corporation, etc., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before ELLERIN, J.P., and KUPFERMAN, ROSS and KASSAL, JJ.
Judgments, Supreme Court, New York County (Helen E. Freedman, J. at trial; Richard Wesley, J. at retrial on apportionment of damages), entered April 4, 1990, which, upon a jury verdict, found in favor of plaintiffs and, upon a directed verdict, found defendant-appellant liable for 100% of the harm suffered by plaintiffs, unanimously modified, the finding on apportionment of damages set aside, and a new trial ordered on apportionment of damages, and otherwise affirmed, without costs.
In this asbestos litigation brought against multiple defendants, the cases of plaintiffs Bigelow, Glaser and the Estate of Sanchez were tried jointly. By the time of trial the only remaining litigating defendant in all three matters was appellant Celotex, all the other named defendants having either settled or been dismissed. By virtue of appellant's assertion of contribution claims pursuant to General Obligations Law § 15-108 against the other defendants no longer in the case, those defendants were listed on the verdict sheet, together with Celotex, and the jury was instructed to set forth the percentage, if any, of responsibility that each of the defendants bore for the injuries suffered by the respective plaintiffs. The jury found in favor of plaintiffs against all of the named defendants, apportioning responsibility equally among them. The trial court granted the motion to set aside the verdict with respect to apportionment, finding such to be against the weight of the evidence, and directed a retrial on that issue only. On the retrial, before another justice, a verdict imposing 100% responsibility for the damages upon appellant Celotex was directed and a final judgment was entered against Celotex only.
On this appeal, defendant-appellant Celotex seeks (1) a reversal of the order of the IAS court, which set aside the verdict insofar as it equally apportioned liability among all named defendants and ordered a new trial solely on apportionment, and (2) a reinstatement of the original verdict, although it raises an issue as to excessiveness of the amounts awarded to plaintiffs. While appellant's primary contention is that no retrial on apportionment should have been held, at all, Celotex also takes issue with the court's rulings and conclusions on that retrial which it contends require, at the very least, a new trial on apportionment. Appellant Celotex does not contest its own liability on this appeal and implicitly concedes that the evidence warranted a finding of liability against it by the first jury.
Upon a review of the record, we find that the original trial judge properly set aside, as against the weight of the evidence, that portion of the first verdict which found that the damages should be equally apportioned among all the named defendants. The record reflects that there were three defendants named on the verdict sheet and included in the apportionment finding against whom there was no...
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