Moran for and on Behalf of Estate of Moran v. G. & W.H. Corson, Inc.

• Decision Date: 25 January 1991
• Citation: 402 Pa.Super. 101,586 A.2d 416
• Parties: , Prod.Liab.Rep. (CCH) P 12,859 Catherine MORAN, Personal Representative for and on Behalf of the ESTATE OF Andrew MORAN, Deceased, Appellant, v. G. & W.H. CORSON, INC., Penn's Valley Insulation Corporation, Pacor, Armstrong Cork Co., GAF Corporation, Owens-Corning Fiberglas Co., Keene Corp., Celotex Corp., Delaware Insulation Corp., Sun Oil Company, Appellees. Catherine MORAN, Personal Representative for and on Behalf of the ESTATE OF Andrew MORAN, Deceased, v. G. & W.H. CORSON, INC., Penn's Valley Insulation Corporation, Pacor, Armstrong Cork Co., GAF Corporation, Owens-Corning Fiberglas Co., Keene Corp., Celotex Corp., Delaware Insulation Corp., Sun Oil Company. Appeal of G. & W.H. CORSON, INC.
• Court: Pennsylvania Superior Court

Page 416

586 A.2d 416

402 Pa.Super. 101, Prod.Liab.Rep. (CCH) P 12,859

Catherine MORAN, Personal Representative for and on Behalf

of the ESTATE OF Andrew MORAN, Deceased, Appellant, v. G. & W.H. CORSON, INC., Penn's Valley Insulation

Corporation, Pacor, Armstrong Cork Co., GAF Corporation,

Owens-Corning Fiberglas Co., Keene Corp., Celotex Corp.,

Delaware Insulation Corp., Sun Oil Company, Appellees.

Catherine MORAN, Personal Representative for and on Behalf

of the ESTATE OF Andrew MORAN, Deceased, v. G. & W.H. CORSON, INC., Penn's Valley Insulation

Corporation, Pacor, Armstrong Cork Co., GAF Corporation,

Owens-Corning Fiberglas Co., Keene Corp., Celotex Corp.,

Delaware Insulation Corp., Sun Oil Company.

Appeal of G. & W.H. CORSON, INC.

Superior Court of Pennsylvania.

Argued May 8, 1990.

Filed Jan. 25, 1991.

Joseph R. McFadden, Jr., Media, for appellant in No. 2548 and appellee in No. 2597.

Matthew S. Donaldson, Jr., Media, for appellant in No. 2597 and appellee in No. 2548.

Before CAVANAUGH, ROWLEY, McEWEN, OLSZEWSKI, DEL SOLE, MONTEMURO, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

McEWEN, Judge:

These consolidated appeals have been taken from the order, entered in response to the post-trial motions filed by all parties, which (1) marked as satisfied the jury verdict for compensatory damages against all eleven defendants, including G. & W.H. Corson, Inc., Penn's Valley Insulation Corporation, and Delaware Insulation Corporation ¹ (hereinafter appellees); (2) reversed a prior order which had awarded delay damages to appellant; and (3) struck the jury's verdict of punitive damages as to each of the appellees.

While we find that the order appealed from must be reversed, the compensatory damage verdict reinstated, and the case remanded for the imposition of delay damages pursuant to Pa.R.C.P. 238, we acknowledge the difficulty of the issues presented to the trial court and the recent direction from our Supreme Court not available at the time of the entry of the trial court's order.

Catherine Moran, (hereinafter appellant), the personal representative of the estate of Andrew Moran (hereinafter decedent), instituted this action under the Pennsylvania Wrongful Death and Survival Statutes to recover damages sustained as a result of the death of the decedent on November 1, 1973, from mesothelioma, a malignancy allegedly caused by his exposure to asbestos in insulation materials supplied to decedent's employer by the appellees.

Suit was instituted against the manufacturers and suppliers of the insulation materials containing asbestos which the decedent had been exposed to as an insulator helper, insulator, and shop fabricator at the Sun Oil Company Refinery from 1936 until his retirement in December of 1972. Prior to trial, appellant executed joint tortfeasor releases, specifically providing for any verdict to be reduced by the pro rata share of the releasee's liability, with GAF Corporation, Armstrong Cork Company, Owens-Corning Fiberglas Corporation, Philadelphia Asbestos Corporation, Keene Corporation, and Celotex Corporation. The jury subsequently returned a compensatory damage verdict against all defendants in the amount of $240,142.97. ² Punitive damages were assessed against each defendant individually, the jury awarding $4,500,000.00 in punitive damages against the manufacturing defendants and $500,000.00 in punitive damages against the appellee distributors as follows:

$300,000 against G. & W.H. Corson, Inc.

150,000 against Delaware Insulation Corporation.

50,000 against Penn's Valley Insulation Corporation.

Appellant initially argues that the trial court erred when it directed that the compensatory damage award be marked satisfied because the amount of the settlements received by appellant from the settling joint tortfeasors exceeded the amount of the compensatory damage verdict. We agree.

The Supreme Court, in Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1 (1987), held that a non-settling joint tortfeasor is not relieved of responsibility for payment of a proportionate share of damages where the consideration paid by the settling tortfeasor exceeds his or her proportionate share of damages as determined by the jury and the release provides for reduction of the verdict by the pro rata share of the settling joint tortfeasor. While appellees correctly assert that Giant Eagle Markets involved the Comparative Negligence Act, 42 Pa.C.S. § 7102, which was not applicable in the instant case, ³ we are not persuaded that the Supreme Court intended to limit the holding of Giant Eagle to only those cases tried under the Comparative Negligence Act. This argument, if correct, would require that the contribution rights of those defendants found liable to a plaintiff under principles of contributory negligence or strict liability would be controlled by the principles set forth in Daugherty v. Hershberger, 386 Pa. 367, 126 A.2d 730 (1956), while the contribution rights of defendants found liable under comparative negligence principles would be controlled by Giant Eagle. Such a system would create havoc and preclude settlements in a case involving multiple defendants, not all of whom were subject to comparative negligence principles.

In 1951, the Legislature passed the Uniform Contribution Among Joint Tortfeasors Act, Act of July 19, 1951, P.L. 1130, § 8, which has been substantially reenacted by the 1976 UCATA that is the current law. The 1951 Act altered the effect of a release as to nonsettling joint tortfeasors. It enabled an individual to settle with one joint tortfeasor and still have recourse to the remaining tortfeasors, subject to the limitations stated in the Act.

The 1951 Act provided for a right of contribution among joint tortfeasors. A joint tortfeasor was entitled to a money judgment for contribution only if he had discharged the common liability or had paid more than his pro rata share thereof. A release of one joint tortfeasor would not discharge the other tortfeasors unless provided by the release, but would reduce the claim against the other tortfeasors by the consideration paid or as stated in the release, if greater than the consideration paid. The Act specifically provided that any right of indemnity under existing law was not impaired. The law has remained unchanged by the 1976 legislation.

Mamalis v. Atlas Van Lines, Inc. 522 Pa. 214, 218, 560 A.2d 1380, 1382 (1989).

The Uniform Contribution Among Joint Tortfeasors Act, 42 Pa.C.S. § 8326, (hereinafter "UCATA"), was interpreted by the Supreme Court in Daugherty v. Hershberger, supra, as relieving a non-settling joint tortfeasor of the responsibility for payment of a proportionate share of the verdict to the extent of any consideration paid by a settling joint tortfeasor which exceeded the settling tortfeasor's proportionate share of the damages. The Supreme Court in Giant Eagle Markets, however, expressly repudiated Daugherty as "wrongly decided and ... overruled." Charles v. Giant Eagle Markets, supra at 482 n. 4, 522 A.2d at 5 n. 4. We believe that if the Court had intended to limit Giant Eagle to only those cases involving the Comparative Negligence Act, the court would have distinguished rather than overruled Daugherty.

The Comparative Negligence Act, 42 Pa.C.S. § 7102, is, by its express terms, applicable only to actions sounding in negligence. It has no applicability in cases involving strict liability. See: McMeekin v. Harry M. Stevens, Inc., 365 Pa.Super. 580, 530 A.2d 462 (1987), allo. denied, 518 Pa. 619, 541 A.2d 746 (1988); Svetz v. Land Tool Company, 355 Pa.Super. 230, 237-39, 513 A.2d 403, 407 (1986), allo. denied, 515 Pa. 584, 527 A.2d 544 (1987); Burgan v. City of Pittsburgh, 115 Pa.Cmwlth. 566, 586-88, 542 A.2d 583, 593 (1988), allo. denied, 521 Pa. 613, 557 A.2d 344 (1989).

The UCATA, however, is applicable to joint tortfeasors regardless of the basis upon which they are found liable to the plaintiff. Thus, this Court has found that the UCATA "may properly be applied to effectuate contribution among joint tortfeasors where one tortfeasor is adjudged liable of negligence and the other liable under concepts of strict products liability." McMeekin v. Harry M. Stevens, Inc., supra, 365 Pa.Super. at 588, 530 A.2d at 466.

While it is unquestionable that the Comparative Negligence Act provided the impetus for the reexamination of the UCATA in Giant Eagle, the Supreme Court did not expressly or implicitly limit its interpretation of the UCATA to only those cases decided under comparative negligence principles. The court, while finding the comparative negligence statute "unquestionably compatible" with its holding, stated that "the UCATA, properly interpreted, supports our view." Id., 513 Pa. at 481, 522 A.2d at 4 (emphasis supplied). It may be, as suggested by the concurring opinion of Justice Papadakos, that the Court reevaluated and discarded its former interpretation of the UCATA as a result of the policy embodied by the Comparative Negligence Act and not as a result of the express terms of either statute: ⁴

In my view, comparative negligence was the legislative response to the inequities the law formerly imposed because of the harsh doctrine of contributory negligence. As previously noted, contributory negligence was rooted in the belief that the law was incapable of apportioning fault between plaintiffs and defendants, or among defendants. That being the chief mischief to be remedied and the occasion and necessity for the statute, it is obvious that the legislature, in enacting a comparative negligence statute, abandoned the old premise in favor of an acknowledgement that fault and liability could, in fact, be apportioned among a plaintiff and defendants.

Charles v. Giant Eagle Markets, supra at 492-93, 522 A.2d at 10-11 (Concurring Opinion by Papadakos, J.) (emphasis supplied).

Restricting Giant Eagle to cases tried solely under comparative negligence principles, moreover, while illogical and unfair,...