Noecker v. Johns-Manville Corp.

• Decision Date: 08 August 1986
• Docket Number: JOHNS-MANVILLE
• Citation: 355 Pa.Super. 463,513 A.2d 1014
• Parties: William NOECKER and Theresa Noecker, Appellees, v.CORPORATION and Johns-Manville Sales Corporation, Defendant-Appellant, and Owens-Corning Fiberglas Corporation; Celotex Corporation; 48 Insulation; Eagle-Picher, Defendants-Appellees.
• Court: Pennsylvania Superior Court

Page 1014

513 A.2d 1014

355 Pa.Super. 463

William NOECKER and Theresa Noecker, Appellees, v. JOHNS-MANVILLE CORPORATION and Johns-Manville Sales Corporation, Defendant-Appellant and Owens-Corning Fiberglas Corporation; Celotex Corporation 48 Insulation; Eagle-Picher, Defendants-Appellees.

Superior Court of Pennsylvania.

Argued Feb. 13, 1986.

Filed Aug. 8, 1986.

Charles W. Craven, Philadelphia, for appellants.

Martin Greitzer, Philadelphia, for appellees.

Before MONTEMURO, HOFFMAN and CERCONE, JJ.

MONTEMURO, Judge:

On April 5, 1977, plaintiffs-appellees, William and Theresa Noecker, brought an action against defendant-appellant, Johns-Manville Corporation (hereinafter Johns-Manville), and certain other corporate entities, claiming that Mr. Noecker had contracted asbestosis as a result of exposure at his place of employment (Combustion Engineering, Inc.) to asbestos products either manufactured or sold by the various defendants. In its responsive pleadings, appellant denied that Mr. Noecker's disability was caused by asbestosis induced by exposure to any of its products. Appellant posited that the disability was either caused by silicosis (a disease resulting from prolonged exposure to silica) or resulted from exposure to products of the co-defendants. Appellant also filed cross-claims for contribution against the co-defendants.

Before trial, three of the defendants effected releases with plaintiffs-appellees which barred any recovery by plaintiffs-appellees against them. Based on its release, one of the settling defendants, Owens Corning Fiberglas Corp., then filed a motion for severance as to all cross-claims filed by it and against it. The release, which expressly denied Owens Corning's joint tortfeasor status, provided, inter alia, that:

It is further agreed and understood by the parties hereto, that any other person or organization whom we [plaintiffs] claim are liable to us for our injuries, losses and damages shall not be entitled to a satisfaction or reduction or pro rata reduction of damages we are claiming against them by reason of the payment herein, unless it is adjudicated that Releasees are Joint Tortfeasors with said person or organization. In the event that Releasees are adjudicated to be Joint Tortfeasors then the payment herein shall constitute a reduction to the extent of the pro rata share of liability of Releasees for the damages recoverable by us from the other tortfeasors.

On the first day of trial, the court entertained Owens Corning's motion for severance on its own behalf and on behalf of the other settling defendants as well. Appellant opposed the granting of severance solely on the basis that severance would prejudice it in its pursuit of contribution claims against the settling defendants in that it would be forced to bring a separate action for contribution at a later date. After hearing argument on the issue, the trial court granted severance for the settling defendants, directing separate trials as to any cross-claims for contribution and/or indemnity. The case proceeded to trial before a jury, with Johns-Manville as the sole defendant left in the case. ¹ The trial resulted in a verdict against appellant in the amount of $550,000 in compensatory damages and $50,000 in punitive damages. Appellant subsequently filed a motion for judgment notwithstanding the verdict and for a new trial. On April 28, 1982, the trial court denied appellant's motions and entered judgment (which reflected delay damages) in favor of plaintiffs-appellees. This appeal followed. ²

Appellant presents the following issues for our review:

Does a trial court commit reversible error when it severs and orders a separate trial of the claims for contribution made by a defendant against co-defendants, who have entered into joint-tortfeasor settlements with the plaintiff but without an adjudication or admission of their status as joint tortfeasors, and then enters a judgment for plaintiffs against the non-settling defendant for the full amount of the damages awarded by jury plus Rule 238 delay damages on that amount?

Did the trial court commit prejudicial error during its instructions to the jury when, in connection with the key factual disputes, it recited evidence in a view favoring only plaintiffs?

Did the trial court commit prejudicial error by refusing to permit Dr. Bolden from testifying that his opinion as to the nature and cause of Mr. Noecker's illness remained unchanged?

Appellant's brief at 5. Appellant asks us to vacate the judgment below and order a new trial on plaintiffs-appellees' claim, with the settling defendants being required to remain in the case.

We will first address appellant's contention that the trial court erred in ordering severance of the claims for contribution brought by appellant against the settling defendants.

Pa.R.C.P. 213(b) provides:

(b) The court, in furtherance of convenience or to avoid prejudice, may, on its own motion or on motion of any party, order a separate trial of any cause of action, claim, or counterclaim, set-off, or cross-suit, or of any separate issue, or of any number of causes of action, claims counterclaims, set-offs, cross-suits, or issues.

Appellant contends that the trial court abused the discretion afforded it by Rule 213 in granting severance because such severance severely prejudiced appellant's claims for contribution against the settling defendants, which claims are authorized by section 8324 of the Uniform Contribution Among Tortfeasors Act [hereinafter the Act]. ³ The Act attempts to insure that where there are joint tortfeasors, none will have to pay more than its proportionate share of the common liability. Section 8324 of the Act provides for the right of contribution among joint tortfeasors. That is, if one joint tortfeasor pays more than its share of the common liability, it is entitled under section 8324 to contribution from the other tortfeasors, i.e., to be reimbursed by them proportionately. Section 8326 of the Act provides that, although a release by the injured person of one joint tortfeasor does not discharge the other tortfeasors, it does reduce the amount that the injured person can recover from the unreleased tortfeasor in the amount of the consideration paid for the release or by the proportion provided for in the terms of the release, whichever is greater. However, neither of these sections is applicable until joint tortfeasor status is established.

Appellant contends that, even though plaintiffs-appellees were precluded from recovering against the settling defendants as a result of the releases, the settling defendants should have been required to remain in the case so that, in reference to appellant's contribution claims against them, their alleged joint tortfeasor status could have been determined at that point. Appellant contends it was severely prejudiced by the severance because it will now have to pursue its contribution claims against the settling defendants in a separate action before another jury. This, appellant contends, involves problems of additional expense, the reassembling of witnesses, and the use of aged proofs.

The trial court justified the severance by stating that, contrary to appellant's assertion, a separate action for contribution would not be unduly burdensome. Noting the great number of asbestos related cases involving multiple defendants on file with the court and the fact that such cases were often both lengthy and complex, the trial court stated that the orderly administration of the judicial process required that efforts be made to simplify and reduce trial issues and trial time. The court concluded, "Absent a stronger showing of inconvenience, the party seeking to oppose a severance must defer to the exercise of discretion by a court endeavoring to assure the orderly administration of its docket and to facilitate and encourage the amicable resolution of its cases, in whole or in part." Trial court's opinion at 6. Defendants-appellees, the settling defendants, argue that the severance was correct in that the "court properly considered convenience to the court, the parties, and society, limited judicial resources, and the expense to those parties against whom the plaintiff no longer had a claim. It promoted the fair administration of justice by simplifying the issues for the jury." Defendants-appellees' brief at 3.

We find that the trial court considered the relevant factors in responding to appellant's argument that severance would severely prejudice it in pursuing its contribution claims. Our research has not revealed any case, nor has appellant directed our attention to any case, which requires that settling defendants remain to participate in trial so that a non-settling defendant can pursue its contribution claims against them. Although it clearly would have been more convenient for appellant to have had its contribution claims against the settling defendants decided in one case, we find that requiring appellant to pursue those claims in a separate action is not so unduly burdensome as to render the trial court's action in granting severance an abuse of discretion. ⁴ We note that even if we were to accept the merits of appellant's argument and order a new trial, such action would in large part be a futile gesture since appellant would still be faced with many of the problems which he argues rendered the severance severely prejudicial in the first place, i.e., the reassembling of witnesses, the use of aged proofs, and additional expense.

On appeal, appellant attempts to raise an additional argument supporting its contention that severance was erroneous. Appellant relies primarily on Davis v. Miller, 385 Pa. 348, 123 A.2d 422 (1956), which involved a defendant who had settled on a release providing for a reduction in the amount of damages the plaintiffs could recover from the non released defendant to the extent of the released defendant's pro rata share of...