Jarusewicz v. Johns-Manville Products Corp.

• Decision Date: 18 February 1983
• Docket Number: JOHNS-MANVILLE
• Parties: Frank J. JARUSEWICZ and Mary Jarusewicz, his wife, et al., Plaintiffs, v.PRODUCTS CORP., et al., Defendants and Third-Party Plaintiffs, v. JERSEY CENTRAL POWER & LIGHT CO., Third-Party Defendant.
• Court: New Jersey Superior Court

Page 638

188 N.J.Super. 638

458 A.2d 156

Frank J. JARUSEWICZ and Mary Jarusewicz, his wife, et al., Plaintiffs, v. JOHNS-MANVILLE PRODUCTS CORP., et al., Defendants and Third-Party Plaintiffs, v. JERSEY CENTRAL POWER & LIGHT CO., Third-Party Defendant.

Superior Court of New Jersey, Law Division Middlesex County.

Decided Feb. 18, 1983.

Alan M. Darnell, Woodbridge, for plaintiffs (Wilentz, Goldman & Spitzer, Woodbridge, attorneys).

Philip V. Lago, Newark, for defendant GAF (Hannoch, Weisman, Stern, Besser, Berkowitz & Kinney, Newark, attorneys).

Steven A. Weiner, Newark, for defendant Johns-Manville (Budd, Larner, Kent, Gross, Picillo & Rosenbaum, Newark, attorneys).

William R. Connelly, Woodbridge, for defendant Quigley Co. (Ravin, Davis & Sweet, Woodbridge, attorneys).

Stephen J. Foley, Asbury Park, for defendant Porter-Hayden (Campbell, Foley, Lee, Murphy & Cernigliaro, Asbury Park, attorneys).

James F. Hyland, Red Bank, for defendant Pittsburgh Corning (Evans, Koelzer, Marriott, Osborne & Kreizman, Red Bank, attorneys, and Henry R. Simon, Newark, attorney).

Peter W. Sachs, Holmdel, for defendants A.P. Green Refractories and Metropolitan Refractories (Sachs & Sachs, Holmdel, attorneys).

Peter A. Piro, West Orange, for defendant Combustion Engineering (Haskins, Hack, Piro & O'Day, West Orange, attorneys).

H. Frank Carpentier, Neptune, for defendant Flintkote Mines (Carton, Nary, Witt & Arvanitis, Neptune, attorneys).

Brian J. Coyle, Hackensack, for defendant Owens-Corning Fiberglas (Harwood, Lloyd, Ryan, Coyle & McBride, Hackensack, attorneys).

Linda P. Torres, Roseland, for defendant Keene Corp. (Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, Roseland, attorneys).

Gita F. Rothschild, Newark, for defendant Owens-Illinois (McCarter & English, Newark, attorneys).

Thomas F. Tansey, Woodbridge, for defendant Nicolet (Morley, Cramer, Tansey, Haggerty & Fanning, Woodbridge, attorneys).

George P. Moser, Jr., Union City, for defendant Armstrong World Industries (Moser, Roveto, McGough & vonSchaumburg, Union City, attorneys).

Steven E. Brawer, Patterson, for defendant Babcock & Wilcox (Rosenberg & Brawer, Patterson, attorneys and Richard A. DeMichele, attorney).

Brian P. Sullivan, Princeton, for defendant Atlas Turner (Smith, Stratton, Wise & Heher, Princeton, attorneys).

Barbara A. Schwab, Jersey City, for defendant Philip Carey (Lamb, Chappell, Hartung, Gallipoli & Coughlin, Jersey City, attorneys).

Michael P. McGrath, Bloomfield, for defendant State Insulation (Enright, Porter & Lenney, Bloomfield, attorneys).

KEEFE, J.S.C.

The issues to be decided on this motion are: whether plaintiffs' amended complaint joining 16 additional defendants in this case violates the statute of limitations and, if so, whether plaintiffs correctly used the fictitious name practice permitted by R. 4:26-4 thereby avoiding application of the statute. For the reasons stated herein both questions are answered in the affirmative.

The 18 plaintiffs in this matter filed a complaint on September 19, 1980, alleging injuries resulting from exposure to asbestos products. Defendants named in that complaint were: "Johns-Manville Products Corporation; A.P. Green Refractories Co.; Metropolitan Refractories, Division of A.P. Green Refractories Co.; Quigley Co., subsidiary of Pfizer, Inc.; J.H. France Refractories Corp.; Eagle-Picher Industries, Inc.; Porter Hayden Co.; Madsen & Howell, Inc.; State Insulation Corp.; Insulation Materials Corp.; E & B Mill Supply Co.; Elizabeth Industrial, Division of Charles F. Guyon, Inc.; and John Does." (Emphasis supplied). In the first count of the complaint plaintiffs state that they were employed at Jersey Central Power & Light over a period of time from 1930 to the present, during which they "were required to and did work with asbestos, asbestos products and/or materials." Thereafter, and throughout the complaint plaintiffs alleged that defendants were "manufacturers, suppliers and/or distributors of the asbestos, asbestos products and/or materials" that they used in the course of their work. Plaintiffs' theory of recovery was expressed in terms of negligence, warranty, strict liability in tort and intentional misrepresentation of fact.

A third-party complaint was filed with leave of court by Johns-Manville on July 20, 1981. The third-party defendants named in that complaint were: Babcock & Wilcox; Forty Eight Insulation Co.; Combustion Engineering; Owens Corning Fiberglas Corp.; Owens Illinois Corp.; Celotex Corp., successor to Philip Carey Corp.; Atlas Turner Corp., successor to Atlas Asbestos Co.; Southern Asbestos Corp.; Unarco Industries; Pittsburg Corning Corp.; Armstrong Cork & Seal Corp.; GAF Corp., successor in interest to Ruberoid; Nicolet Industries; Keene Corp., successor to Keene Building Products Corp.; Fiberboard Corp., and Garlock Corp. According to the certification of Johns-Manville's counsel filed in connection with the motion, the prospective third-party defendants were identified by various plaintiffs during the course of depositions which commenced about April 1981 and concluded shortly before the motion was made.

Plaintiffs' work histories at JCP & L spanned many years and in some cases several decades. Consequently, they testified that they could remember only some of the names of the products to which they were exposed. The identity of the third-party defendants was developed by the Johns-Manville attorney who used a "black book" containing photographs and product literature of various asbestos suppliers and manufacturers. Plaintiffs' recollections were "refreshed" as to product use and exposure when they were shown this literature for the first time.

By order dated August 12, 1981 plaintiffs were permitted to amend their complaint to add the 16 third-party defendants as direct defendants. The amended complaint was not filed until October 29, 1981.

Defendant GAF moved for summary judgment, contending that the plaintiffs' suit against it was barred by the statute of limitations. The remaining newly named defendants soon joined in the motion.

Interrogatories propounded by defendant Johns-Manville in the case asked each plaintiff to state the exact date upon which plaintiff became aware that his medical symptoms were caused by the alleged acts of Johns-Manville. In response to this question the earliest date given by any of the plaintiffs was September 21, 1978, and the latest date given was March 21, 1979. (Plaintiff Warren Rappleyea died on April 23, 1979. That date is, of course, critical with reference to the claim made for his wrongful death. N.J.S.A. 2A:31-1 et seq.)

In view of these facts the moving defendants argued that since they were not joined as third-party defendants within two years of March 21, 1979 as to the personal injury claims, or two years of April 23, 1979 as to the death claim, the claims are time-barred. McGlone v. Corbi, 59 N.J. 86, 279 A.2d 812 (1971). They further argued that plaintiffs' cause of action was not saved by the use of "John Does" in the caption of the complaint since the requirements of R. 4:26-4 were not followed.

In reply plaintiffs argued that the cause of action does not accrue as to personal injury claims until the identity of the defendant is made known to plaintiffs, or, in the alternative, that their cause of action was saved by the use of the "John Does" procedure. With respect to the latter issue plaintiffs' argument is succinctly stated in one of their several briefs as follows: "Although a more artful pleading would have specifically labeled the John Doe defendants as fictitious names of manufacturers, suppliers, distributors, etc., of asbestos and/or asbestos products, there can be no doubt that the Complaint, taken as a whole, sets forth the substance of a cause of action against the John Doe defendants."

Plaintiffs' attempt to use the "discovery rule" as a basis for a determination that their cause of action as to any particular defendant does not accrue until that defendant's identity is known has not been decided in this State. The discovery doctrine provides that "in an appropriate case a cause of action will be held not to accrue until the injured party discovers or by an exercise of reasonable diligence and intelligence should have discovered, that he may have a basis for an actionable claim." Lopez v. Sawyer, 62 N.J. 267, 272, 300 A.2d 563 (1973). Knowledge of the existence of injury does not always trigger the accrual of the cause of action. At times the inquiry must focus upon fault as well as injury where the awareness of the fault is not self-evident in the injury. Lynch v. Rubacky, 85 N.J. 65, 72-73, 424 A.2d 1169 (1981). Therefore, in the case under consideration it would not seem appropriate to trigger the accrual of the action until plaintiffs were made aware that their pulmonary symptoms were caused by asbestos exposure. At that point in time there would be a nexus between injury and fault. Plaintiffs seek to extend the rule laid down in Lynch v. Rubacky, supra, by requiring an identification of the tortfeasor to be a part of the fault consideration. If plaintiffs' argument is adopted there would be differing accrual times in the same case where multiple tortfeasors are involved depending upon when a plaintiff learned of a particular tortfeasor's identity. No authority can be found in the case law of this State to support such a proposition. Authority to the contrary, however, is found in the concurring opinion of Justice Pashman in the case of Lawrence v. Bauer, 78 N.J. 371, 396 A.2d 569 (1979), in which he said:

The rule has never been applied in situations such as the present where plaintiffs know that they possess actionable claims but are ignorant of the precise identity of the person responsible for their injuries. One reason for this non-applicability is that such a plaintiff can prevent the limitations period from running by complying with R. 4:26-4... The very...