McKee v. Johns Manville Corp.

• Decision Date: 27 April 1978
• Citation: 94 Misc.2d 327,404 N.Y.S.2d 814
• Court: New York Supreme Court
• Parties: James McKEE, Jr., Plaintiff, v. JOHNS MANVILLE CORPORATION, Eagle-Picher Industries, Inc., Philip Carey Industries, Inc., Owens-Corning Fiberglass Corporation, Armstrong Cork Company, Fibreboard Paper Products Corporation, Combustion Engineering, Inc., Pittsburgh Corning Corporation, Unarco Industries, Inc., Armstrong Contracting and Supply Corporation, Standard Asbestos Manufacturing & Insulating Co., Keene Insulation Company, Rockwell Manufacturing Co. and Ruberoid Company, Division of GAF Corporation, Defendants.

Page 814

404 N.Y.S.2d 814

94 Misc.2d 327

James McKEE, Jr., Plaintiff, v. JOHNS MANVILLE CORPORATION, Eagle-Picher Industries, Inc. Philip Carey Industries, Inc., Owens-Corning Fiberglass Corporation, Armstrong Cork Company, Fibreboard Paper Products Corporation, Combustion Engineering, Inc. Pittsburgh Corning Corporation, Unarco Industries, Inc. Armstrong Contracting and Supply Corporation, Standard Asbestos Manufacturing & Insulating Co., Keene Insulation Company, Rockwell Manufacturing Co. and Ruberoid Company Division of GAF Corporation, Defendants.

Supreme Court, Erie County.

April 27, 1978.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo (James W. Kirkpatrick, Buffalo, of counsel), for plaintiff.

Hagerty & Hagerty, Buffalo (James J. Hagerty, Buffalo, of counsel), for Pittsburgh Corning Corp.

Brown, Maloney, Gallup, Roach & Busteed, P. C., Buffalo (Daniel T. Roach, Buffalo, of counsel), for Johns-Manville Corp.

Saperston, Day & Radler, Buffalo (Thomas F. Segalla, Buffalo, of counsel), for Fibreboard Paper Products.

Robert M. Kiebala, Buffalo, for Eagle-Picher Industries.

Brown, Kelly, Turner, Hassett & Leach, Buffalo (Gordon D. Tresch, Buffalo, of counsel), for Owens-Corning Fiberglass.

Hurwitz & Fine, P. C., Buffalo (John J. Quackenbush, Jr., Buffalo, of counsel), for Armstrong Cork Co.

Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo (John J. Cooney, Buffalo, of counsel), for Armstrong Contracting and Supply Co.

Phelps, Gray, Mansour & Hewitt, Niagara Falls (Benjamin N. Hewitt, Niagara Falls, of counsel), for Combustion Engineering Inc.

Weaver, Maghran & McCarthy, Buffalo (Irving C. Maghran, Buffalo, of counsel), for Unarco Industries.

Lansdowne & Greene, Buffalo (James W. Greene, Buffalo, of counsel), for Standard Asbestos Mfg.

Smith, Murphy & Schoepperle, Buffalo (Frank G. Godson, Buffalo, of counsel), for Keene Insulation.

Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo (Paul F. Jones, Buffalo, of counsel), for Ruberoid Co.

No appearance for Philip Carey Industries.

MEMORANDUM

JOSEPH P. KUSZYNSKI, Justice.

Plaintiff, James McKee, Jr., who maintains he has developed the disease asbestosis as the result of his thirty years as an insulation employee, brings this action against 14 defendants who allegedly manufactured and marketed the asbestos products.

Defendants herein named, pursuant to CPLR 3211(a) (5) move to dismiss the complaint and the cross-complaints of the co-defendants upon the ground the actions were not commenced within the time provided for in the Statute of Limitations, and also pursuant to CPLR 3212 for summary judgment.

Plaintiff's complaint contains three causes of action collectively against the defendants in negligence, strict products liability in tort and for breach of warranty. It sets forth that "by reason of exposure to and inhalation of asbestos particles and dust as well as other contaminants found in defendants' products and materials", the plaintiff contracted asbestosis and pulmonary fibrosis. (Par. 20, Complaint).

To date the defendants have had a deposition before trial of the plaintiff and of his treating physician, Dr. Howard Paul Longstreth, while plaintiff as yet, has not had any discovery proceedings. Therefore, defendant's Fibreboard Paper Products Corporation motion to dismiss because of plaintiff's failure during his oral deposition to specifically identify Fibreboard as a manufacturer of any asbestos containing product he may have handled, and defendant's Armstrong Cork Company similar motion in relation to its product called "Armaspray" and "L. T. Cork Covering" are premature. They are denied without prejudice to being renewed when plaintiff's discovery proceedings are concluded.

Most critical, however, to plaintiff's lawsuit is the issue of the Statute of Limitations.

Mr. McKee alleges in his complaint that he has been disabled since October 30, 1972 and his condition was first diagnosed as "asbestosis-pulmonary fibrosis", some time in the 2-week period between March 29, 1973 and April 13, 1973. Defendants maintain that according to his medical records, the plaintiff may have suffered from this disease since 1968.

Plaintiff states he is unemployed since 1970, except for a period from August, 1972 to October 29, 1972, during which he worked for Frontier Insulation Co. (Bill of Particulars, PP 2 and 3) At the deposition before trial and at the Workmen's Compensation Board hearing concerning his compensation claim, Mr. McKee stated he did not know whether any asbestos was involved in the course of this employment. The superintendent at Frontier Insulation, Robert Wopperer, testified at the Compensation hearing, however, that the materials plaintiff worked with did not contain asbestos. Defendants set forth in the moving papers that "Thereafter when Frontier Insulation sought to be discharged, Mr. McKee's counsel conceded that plaintiff had not used any asbestos products and that the Referee subsequently discharged Frontier Insulation on the basis that plaintiff has not been exposed to asbestos during that employment."

While determinations of administrative boards are not not necessarily binding on the courts of law, the doctrine of collateral estoppel prevents plaintiff from re-litigating the issue of whether he was exposed to asbestos during 1972 when he was employed at Frontier Insulation. See Ogino v. Black, 304 N.Y. 872, 109 N.E.2d 884; Doca v. Federal Stevedoring Co., 280 App.Div. 940, 116 N.Y.S.2d 25, affd. 305 N.Y. 648; Schwartz v. Public Administrator, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 275. Especially so, since Mr. McKee in his answering papers had failed to preserve this question in any way as a triable issue.

Thus, for the Statute of Limitations purposes, Mr. McKee's last exposure to asbestos was during his employment in 1970 and arguably the diagnosis of his condition was not made until March or April, 1973. The summonses were served upon the defendants in August, 1975.

Proceeding now to consider the causes of action alleged against the defendants;

"A cause of action for strict products liability is 'independent' (Micallef v. Miehle Co., (Division of Miehle-Goss Dexter,) 39 N.Y.2d 376, 382, 384 N.Y.S.2d 115, 119, 348 N.E.2d 571, 575) of a cause of breach of warranty (or negligence) and the fact that one is barred does not preclude the other."

Murphy v. General Motors Corp., 55 A.D.2d 486, 391 N.Y.S.2d 24 (3rd Dept., 1977).

It is imperative that this Court consider the Statute of Limitations separately as to each cause of action in determining whether plaintiff's lawsuit is barred.

The first cause of action is framed in the traditional negligence setting and is controlled by the requisites as set forth in Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287, 200 N.E. 824 (1936). Here, for plaintiff to succeed, it is necessary for him to allege and show both diagnosis and exposure within the three (3) year period preceding the action. A direct challenge to Schmidt, supra was rejected in Schwartz v. Heyden Newport Chemical Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, cert. den. 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032 (1963...