In re Fela Asbestos Litigation

• Decision Date: 22 May 1986
• Docket Number: Civ. A. No. 83-0814-R.
• Court: U.S. District Court — Western District of Virginia
• Parties: In re FELA ASBESTOS LITIGATION. Cecil S. WINGO, Sr., Plaintiff, v. NORFOLK & WESTERN RAILWAY COMPANY, et al., v. H.K. PORTER COMPANY, INC., et al., Defendants.

638 F. Supp. 107

In re FELA ASBESTOS LITIGATION.

Cecil S. WINGO, Sr., Plaintiff, v. NORFOLK & WESTERN RAILWAY COMPANY, et al., v. H.K. PORTER COMPANY, INC., et al., Defendants.

Civ. A. No. 83-0814-R.

United States District Court, W.D. Virginia.

May 22, 1986.

COPYRIGHT MATERIAL OMITTED

Joseph F. Rice, Blatt & Fales, Barnwell, S.C., Ross C. Hart, Hart & Hart, Attys., Ltd., Roanoke, Va., J. Weldon Granger, Jones & Granger, Houston, Tex., for plaintiff.

Archibald Wallace III, Keene & Celotex, Sands, Anderson, Marks & Miller, Richmond, Va., for H.K. Porter and St Corp.

William B. Poff, Roanoke, Va., for Norfolk & Western Ry.

S. Lawrence Dumville, Norfolk, Va., for Nicolet.

William S. Davies, Jr., David G. Traylor, Jr., Nelson, Mullins, Grier & Scarborough, Columbia, S.C., Philip G. Gardner, Martinsville, Va., for Atlas Turner.

James A.L. Daniel, Meade, Tate & Daniel, Danville, Va., for Gen. Elec.

James C. Shannon, Duane & Shannon, Richmond, Va., for Garlock.

William T. Wilson, William T. Wilson & Associates, Covington, Va., for U.S. Gypsum.

David Craig Landin, William H. King, Jr., McGuire, Woods & Battle, Charlottesville, Va., for Westinghouse Elec. Corp.

William H. Lindsey, Claude M. Lauck, Glenn, Flippin, Feldmann, & Darby, Roanoke, Va., for Anchor Packing.

Jerry K. Jebo, Jebo & Rosenthal, Radford, Va., for E.A. Kinsey Co.

Ronald D. Hodges, Glenn M. Hodge, Wharton, Aldhizer & Weaver, Harrisonburg, Va., for Goodyear Tire & Rubber Co.

James M. McCauley, Hoyle, Corbett, Hubbard & Smith, Newport News, Va., for Raymark.

James L. Hutton, Gilmer, Sadler, Ingram, Sutherland & Hutton, Blacksburg, Va., for Koppers.

John W. Zunka, Jane P. Long, Taylor & Zunka, Ltd., Charlottesville, Va., Thomas S. Schaufelberger, Alan Klein, Alfred W. Putnam, Jr., Stuart A. Law, Jr., Drinker, Biddle, & Reath, Washington, D.C. for Uniroyal, Inc.

MEMORANDUM OPINION

KISER, District Judge.

Before the Court is the Norfolk & Western Railway Company's ("N & W") motion for entry of judgment on its cross-claim seeking indemnity from the Celotex Corporation, Keene Corporation, and H.K. Porter Company, Inc. ("Manufacturing Defendants").¹ I believe that indemnity is appropriate under the facts of this case, therefore, I shall grant the N & W's motion.

I. Facts

The original Plaintiff in this action, Cecil S. Wingo, Sr., filed suit against the N & W and the Manufacturing Defendants seeking damages for asbestos-related injuries he incurred while employed since 1942 at the N & W as a laborer, apprentice machinist, and machinist.² The case proceeded to trial, and a jury awarded Wingo $200,000 in his claim against the N & W.³ The jury found that the Plaintiff's claim against the Manufacturing Defendants was barred by the statute of limitations.⁴

The jury also found, however, that the Manufacturing Defendants' failure to warn the N & W of the hazards of the asbestos products they sold to the N & W breached an implied warranty of merchantability that ran with the goods. It is this breach of warranty on which the N & W bases its cross-claim for indemnity against the Manufacturing Defendants.

II. Indemnity

The Manufacturing Defendants oppose the N & W's cross-claim for indemnity on two grounds. First, the manufacturers argue that the jury's answers in regard to the N & W's knowledge of the hazards of asbestos preclude as a matter of law the existence of an implied warranty of merchantability. Second, the manufacturers argue that even if an implied warranty arose, the N & W's cross-claim based on this warranty is barred by the statute of limitations contained in Va.Code § 8.2-725. I shall address the arguments in this order.

A. Existence of a Warranty

Section 8.2-314 of the Virginia Code provides that an implied warranty of merchantability arises upon the sale of certain goods. Applied in Whittle v. Timesavers, 572 F.Supp. 584, 586 (W.D.Va.1983), rev'd and remanded on other grounds, 749 F.2d 1103 (4th Cir.1984). As the Manufacturing Defendants correctly point out, however, and as the N & W acknowledges, the implied warranty of merchantability which arises upon the sale of goods can be defeated if the seller of the goods can prove by a preponderance of the evidence that the buyer's knowledge of the defective quality of the goods was extensive enough for the buyer to truly appreciate the hazards of the goods. Goodbar v. Whitehead Brothers, 591 F.Supp. 552, 567 (W.D.Va.1984), aff'd, Beale v. Hardy, 769 F.2d 213 (4th Cir.1985).⁵

In a special verdict form drafted by the Court and approved by counsel, the jury was asked to make several findings in regard to the N & W's cross-claim. First, the jury was asked whether the N & W knew of the hazards of asbestos and whether it knew of preventive measures to take to combat these hazards (Questions One and Two of Section V).⁶ The jury gave affirmative answers to these questions. Second, the jury was asked whether the Manufacturing Defendants breached an implied warranty of merchantability by failing to warn the N & W of the hazards of asbestos (Question Three of Section V).⁷ The jury's answer to this question was also "yes".

Although the jury's answers may appear at first inconsistent, I do not think that they are. The N & W and the Manufacturing Defendants agree that "when a special verdict form is used and the jury's findings apparently conflict, the court has a duty to harmonize the answers, if it is possible to do so under a fair reading of them." Ladnier v. Murray, 769 F.2d 195, 198 (4th Cir.1985), citing, Atlantic & Gulf Stevedores v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962). See also, Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963).⁸ The N & W and the manufacturers disagree, however, on how I should construe the answers to arrive at some consistency.

The Manufacturing Defendants suggest that I disregard the jury's response to Question Three as "superfluous and irrelevant." Accordingly, the manufacturers explain that:

The jury's affirmative answer to question 3 constitutes nothing more than a statement that if there had been an implied warranty, the manufacturer's failure to warn would have constituted a breach of warranty. Since the jury's prior factual findings regarding the N & W's knowledge preclude the existence of such a warranty as a matter of law, the affirmative answer to question 3 cannot support entry of judgment in favor of the N & W on its Cross-Claim.

Manufacturing Defendants' Brief (filed April 4, 1986) at 6.

I disagree with the manufacturers' construction of the jury's answers. When the jury's answer to Question Three is viewed in light of the Court's jury charge, as I am required to do, Martin v. Swift, 258 F.2d 797, 799 (3rd Cir.1958), it is consistent with the other answers in the special verdict form.

When I instructed the jury on the N & W's cross-claim for breach of warranty against the Manufacturing Defendants, I told the jury that it must determine: "first, was there a warranty; if so, was the product defective; and if so, was the N & W damaged by the defect." Tr. at 2820-21. I also instructed the jury on the affirmative defense raised by the manufacturers. I stated:

The manufacturing defendants have raised the defense, the affirmative defense ... as to the cross-claim of the N & W that no implied warranty of merchantability arose because the N & W had full knowledge of the hazards of asbestos.

Now, to establish this defense the manufacturing defendants must prove by a preponderance of the evidence the extent of the N & W's knowledge so as to appreciate the hazards of asbestos to N & W employees. (emphasis added)

Tr. at 2821.⁹

I believe that when the jury's findings in regard to the N & W's cross-claim are viewed in light of the instructions, the findings are consistent. The jury's affirmative answers to Questions One and Two of Section V of the special verdict form no doubt suggest that the N & W had some knowledge of the hazards of asbestos; however, this had been conceded by the N & W since the outset of the trial.¹⁰ Moreover, the major thrust of the N & W's closing argument was the distinction between some knowledge of the danger of asbestos and sufficient knowledge of the dangers as applied to railroad workers. In my view, the jury's affirmative response to Question Three should properly be interpreted as a finding by the jury that the N & W's knowledge was not sufficient to defeat the implied warranty of merchantability, thereby finding that the Manufacturing Defendants' failed to establish the affirmative defense they had raised.¹¹

B. Statute of Limitations

Having determined that the jury's answers to the special verdict form establish that the N & W's knowledge was insufficient to defeat the implied warranty of merchantability that ran to the N & W, I must now evaluate whether the N & W's cross-claim is barred by the statute of limitations. The manufacturers argue that the four-year statute of limitations contained in Va.Code § 8.2-725 is controlling.

Section 8.2-725 provides that "an action for breach of any contract for sale must be commenced within four years after the cause of action has accrued." The statute further provides that the "cause of action accrues when the breach occurs ... and a breach of warranty occurs when tender of delivery is made." Based on this statute, the manufacturers argue that the N & W's cross-claim for indemnity should have been brought within four years of the date of the manufacturers' delivery of asbestos products to the N & W, many of which deliveries date back to the 1930s, 1940s, and 1950s. The application of § 8.2-725 to the facts of this case, however, is simply inappropriate in my view.

In Whittle v. Timesavers, this Court held that an "implied warranty of merchantability gives rise to an implied contract of indemnity." 572 F.Supp. 584, 587 (W.D.Va. 1983), rev'd and remanded on other grounds, 749 F.2d 1103 (4th...