GEI Intern. Corp. v. St. Paul Fire and Marine Ins. Co.

Decision Date16 February 1996
Citation287 N.J.Super. 385,671 A.2d 171
PartiesGEI INTERNATIONAL CORPORATION, a New Jersey corporation (formerly known as Andrew Denholm, Inc.), Plaintiff-Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Federal Insurance Company, Atlantic Mutual Insurance Company, Northwestern National Insurance Company, Midland Insurance Company, Chubb Group of Insurance Companies, Fireman's Fund Insurance Company, Inc., Ideal Mutual Insurance Company, Inc., ORB Holding Company, John Black, Robert Dederer, Frank Vanderhoof, Metramatic Corporation, and New Jersey Property/Liability Guaranty Association, Defendants, and Hi-Speed Checkweigher, Inc., successor in interest to Metramatic Corporation, and AG fur Prazionsinstrumente, Defendants-Respondents.
CourtNew Jersey Superior Court — Appellate Division

Robert Mahoney, Roseland, argued the cause, for appellant GEI International Corporation (Friedman Siegelbaum, attorneys; James M. Andrews and Mr. Mahoney, on the brief).

Michael Dore, Roseland, argued the cause, for respondents Hi-Speed Checkweigher, Inc. and AG fur Prazionsinstrumente (Lowenstein, Sandler, Kohl, Fisher & Boylan, attorneys; Mr. Dore, of counsel and on the brief; Lauren M. Hollender, on the brief).

Before Judges BAIME, VILLANUEVA, and KIMMELMAN.

The opinion of the court was delivered by

KIMMELMAN, J.A.D. (temporarily assigned).

In this toxic tort litigation, the issues of which have been bifurcated for trial, plaintiff seeks (1) contribution from certain named defendants for its cleanup costs (the liability trial) and (2) a declaratory judgment against the insurance company defendants to determine and enforce coverage under several policies (the coverage trial). The trial court struck plaintiff's demand for a jury trial on both of the bifurcated issues. Pursuant to R. 2:2-4, we granted plaintiff's application for leave to appeal from that interlocutory ruling.

Although defendants Hi-Speed Checkweigher, Inc. (Hi-Speed) and AG fur Prazionsinstrumente (AG) in their answer did demand a trial by jury, their demand was obviously withdrawn when said defendants Hi-Speed and AG successfully moved to strike plaintiff's demand for a trial by jury in the liability trial.

In addition to plaintiff's jury demand, the defendant insurance companies, in their answers, also demanded a trial by jury. The trial court additionally struck all such demands by said defendants for a trial by jury by ordering a separate bench trial on the insurance coverage issues. It was further ordered that the verdict to be rendered in the liability trial assigning liability amongst the various parties would be binding upon the insurance company defendants. The insurance company defendants have not appealed the trial court's ruling and have neither entered appearances nor responded with respect to this appeal.

Defendants Orb Holding Company, John Black, Robert Dederer, and Frank Vanderhoof (sometimes hereinafter referred to as Orb or the Orb defendants) also demanded a trial by jury in their answer, cross-claims, and third-party complaint seeking to compel coverage under policies of insurance issued to them. Their demand is regarded as having been likewise stricken by virtue of the foregoing orders. They, too, have not appealed the trial court's ruling and have neither entered appearances nor responded with respect to this appeal.

Factually, this action relates to the apportionment of environmental remediation costs incurred and to be incurred by plaintiff in connection with an industrial site located in Landing (Roxbury Township), New Jersey. Defendant Metramatic Corporation (Metramatic) operated a manufacturing facility on the site from 1969 to March 1983. Defendants Black, Dederer, and Vanderhoof owned Metramatic during this period. Defendant Orb, a general partnership composed of Black, Dederer, and Vanderhoof, owned the site itself. In March 1983, Orb transferred title to the real estate to Metramatic, and plaintiff purchased the capital stock of Metramatic.

Plaintiff continued with the operation of Metramatic at the site in question until July 1988 when plaintiff sold the stock of Metramatic to defendant AG. Metramatic was then merged into defendant Hi-Speed, a subsidiary of AG.

Plaintiff's sale of the Metramatic stock to AG triggered the Environmental Cleanup Responsibility Act (ECRA), N.J.S.A. 13:1K-6 to -14, which mandates the remediation of contaminated industrial property upon transfer of ownership of or cessation of the operations conducted thereon. By subsequent amendment, ECRA is now known as the Industrial Site Recovery Act (ISRA), N.J.S.A. 13:1K-6 to -14. Compliance with ECRA required plaintiff to conduct a full investigation to determine the possible existence of hazardous contamination and the necessity for environmental remediation of the site. N.J.S.A. 13:1K-9. The investigation revealed contamination. In order for the sale of Metramatic's stock to be consummated before the cleanup of the site could take place, it was necessary for plaintiff to enter into an administrative consent order (ACO) with the New Jersey Department of Environmental Protection. Plaintiff has undertaken the cleanup of the toxic contamination found on the site in compliance with the terms of the ACO and to date has incurred costs, we are informed, in excess of $2,000,000. The cleanup work continues.

Plaintiff has brought this action against Hi-Speed and AG, as successors to Metramatic, and the Orb defendants, the prior owners of the site, for the recovery of plaintiff's remediation costs from said defendants by way of contribution.

I

The liability trial to determine the relative responsibility of Hi-Speed, AG, and the Orb defendants for the cost of remediating the contamination at and around the site is principally based upon the contribution provisions of the Spill Compensation and Control Act (the Spill Act), N.J.S.A. 58:10-23.11 to -23.11z. The complaint also contains counts for common law contribution and indemnification and for strict liability in tort, which latter claims we regard as ancillary and incidental to the contribution claims asserted under the provisions of the Spill Act.

The specific provisions of the Spill Act on which plaintiff relies are contained in N.J.S.A. 58:10-23.11f(a)(2), which provides:

Whenever one or more dischargers or persons cleans up and removes a discharge of a hazardous substance, those dischargers and persons shall have a right of contribution against all other dischargers and persons in any way responsible for a discharged hazardous substance who are liable for the cost of the cleanup and removal of that discharge of a hazardous substance. In an action for contribution, the contribution plaintiffs need prove only that a discharge occurred for which the contribution defendant or defendants are liable pursuant to the provisions of subsection c. of section 8 of P.L.1976, c. 141 (C.58:10-23.11g), and the contribution defendant shall have only the defenses to liability available to parties pursuant to subsection d. of section 8 of P.L.1976, c. 141 (C.58:10-23.11g). In resolving contribution claims, a court may allocate the costs of cleanup and removal among liable parties using such equitable factors as the court determines are appropriate.

[Emphasis added.]

The emphasized portion of the subsection above set forth does not specifically authorize a jury to allocate the costs of cleanup. A "court" is so authorized to make the allocation, but the question for decision is whether the language used by the Legislature was meant to preclude a trial by jury.

We find instructive to the determination of this question the reasoning of the Supreme Court in Shaner v. Horizon Bancorp., 116 N.J. 433, 443, 561 A.2d 1130 (1989), in which the Court considered whether the Legislature intended a trial by jury with respect to an action brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD). The Court in that case said:

The fact that the 1979 amendment did not deal expressly with the right to trial by jury is also highly indicative of legislative intent not to confer such a right. It is reasonable to believe that if the Legislature intended to confer the right to a jury trial when in 1979 it authorized a complainant to bring an action in Superior Court, it would have expressly so provided in its amendment of the LAD. When conferring a right to a jury trial for newly-created statutory causes of action, the Legislature has a history of doing so by express provision. See, e.g., N.J.S.A. 2A:15-56 (labor dispute injunctions); N.J.S.A. 2A:62-4, 2A:62-18 (quiet-title actions); N.J.S.A. 2A:62-21 (actions to determine the existence and validity of covenants, conditions, agreements, or restrictions in deeds to real estate); N.J.S.A. 2A:62-24 (actions to determine title to riparian lands and lands under water); N.J.S.A. 3B:12-24 (civil proceedings to determine mental incompetency); N.J.S.A. 40:189-3 (actions for abatement of nuisances); and N.J.S.A. 45:14B-42 (actions regarding confidentiality of patient information by psychologists); see also State v. Tenriero, 183 N.J.Super. 519, 521 [444 A.2d 623] (Law Div.1981) (plaintiff denied a right to jury trial in action brought under statute that provided Superior Court with jurisdiction over gambling offenses: "[h]ad the Legislature intended otherwise, it would have made provision in the same manner as for the disorderly persons obscenity offense.")

[Id. at 443, 561 A.2d 1130.]

In New Jersey, as in other jurisdictions, the right to trial by jury remains inviolate, N.J. Const. art. I, p 9, but inviolate only with respect to causes of action that were triable by jury at common law. "[T]he Court has been consistent in denying a right to jury trial unless that right existed prior to the adoption of the State Constitution." Shaner, supra, 116 N.J. at 447, 561 A.2d 1130. Whether reference is made to the 1947, 18...

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