Seckular v. Celotex

• Decision Date: 03 April 1986
• Citation: 209 N.J.Super. 242,507 A.2d 290
• Parties: Hyman SECKULAR and Ruth Seckular, his wife, Plaintiffs-Appellants, v. CELOTEX; Celotex, as successor-in-interest to Philip Carey, et als., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 242

209 N.J.Super. 242

507 A.2d 290

Hyman SECKULAR and Ruth Seckular, his wife, Plaintiffs-Appellants, v. CELOTEX; Celotex, as successor-in-interest to Philip Carey et als., Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Submitted Feb. 26, 1986.

Decided April 3, 1986.

Levinson, Conover, Axelrod, Wheaton & Grayzel, Edison, for plaintiffs-appellants (Ronald B. Grayzel, on brief).

Morley, Cramer, Tansey, Haggerty & Fanning, Woodbridge, for defendant-respondent Nicolet, Inc. (Thomas M. Kelley, on letter brief).

Chazen & Chazen, Englewood for defendant-respondent Empire Ace Insulation Mfg. Corp. (Bernard Chazen, on letter brief).

Schwartz & Andolino, Livingston, for defendant-respondent Eagle-Picher Industries, Inc. (James F. McNaboe, Hackensack, on letter brief).

McCarter & English, Newark for defendants-respondents Owens-Illinois, Inc., Celotex Corp., Pittsburgh-Corning Corp., H.K. Porter Company, Keene Corp. and Flintkote (Andrew T. Berry, of counsel; J. Forrest Jones, on brief).

Defendants-respondents GAF Corp., Todd Shipyards Corp. and Standard Insulation Co. did not participate in the appeal.

Before Judges KING, O'BRIEN and SCALERA.

The opinion of the court was delivered by

KING, P.J.A.D.

Plaintiffs, Hyman Seckular, ¹ and his wife, Ruth, appeal from the Law Division judge's denial of their motion to voluntarily dismiss the complaint without prejudice and from his grant of defendant's motion for summary judgment. The complaint was dismissed as time-barred under Florida substantive law and its borrowing statute which the judge thought dictated that the New York statute of limitations should be applied to preclude plaintiff's suit for damages sustained as a result of exposure to asbestos. Plaintiff contends that the Law Division judge wrongfully exercised his discretion in denying his motion to voluntarily dismiss the complaint and incorrectly interpreted the applicable Florida law on the time-bar issue.

The case arises in this factual background. Plaintiff came to Brooklyn, New York from Poland in 1920. He lived in Brooklyn until 1979 when he and his wife moved to Delray Beach, Florida where they bought a condominium. Plaintiff's only exposure to asbestos occurred sometime between 1941 and 1945 when he worked as a welder at Todd Shipyards in Brooklyn.

When plaintiff moved to Florida in 1979, he registered to vote, obtained a driver's license, and worked part-time selling shoes. He began experiencing a constant cough and difficulty breathing in August 1982. He consulted five doctors in Florida but none diagnosed his condition as mesothelioma. The first doctor gave him cough syrup. After he suffered an attack in which he could not breathe, he was admitted to the hospital for tests and surgery was performed. Although not clear to us, it appears that plaintiff's right lung was removed in Florida because of a cancerous condition.

Despite the surgery, plaintiff's coughing continued. Four months after surgery, which occurred around October 1982, plaintiff consulted a Dr. Stein. He had grown weaker and was losing his appetite. Stein recommended that he see a pulmonary specialist, Dr. Falkowitz, who sent him for tests and prescribed medication for asthmatic bronchitis. After seeing Falkowitz, plaintiff came north.

Plaintiff and his wife came to live with their daughter and son-in-law in Marlboro, New Jersey during the summer of 1983. Plaintiff and his wife retained ownership of the Florida condominium and hoped to return there in the winter. Plaintiff said that he could no longer live in Florida year-round because of the heat and humidity; he could not "combat the outdoors ... with half a lung." While staying with his daughter, plaintiff's condition was diagnosed as mesothelioma by Dr. Teirstein at Mount Sinai Hospital in New York City in May 1983.

The present suit was instituted in August 1983. It is unclear on this record when plaintiff died or when he moved back to Florida. The only information we have comes from his daughter's affidavit where she stated that

Shortly before my father died, my parents returned to Florida against my wishes.... My mother has decided to remain in Florida.

This case presents a rather complex choice-of-law question. New Jersey, as the forum, is asked to decide whether New York or Florida law applies to a cause of action asserted by a now-deceased Florida domiciliary who was exposed to asbestos in New York during World War II. New Jersey has no real interest in the litigation. The applicable Florida law seems unclear to us. A death action is now pending in Florida.

Defendants moved for summary judgment on time-bar grounds. Plaintiff then moved for a voluntary dismissal of his complaint without prejudice. After issue is joined, plaintiff may dismiss without prejudice only with court approval. R. 4:37-1(b). Plaintiff's counsel desired the dismissal because (1) Florida was the appropriate forum under principle of forum non conveniens, (2) New Jersey should not decide the choice-of-law issue where it had no interest in the law suit, and (3) plaintiff's surviving wife had filed a death action in Florida and a dismissal would avoid multiple suits. The judge found the plaintiff's action time-barred, reasoning that New Jersey would apply Florida substantive law and in the circumstances Florida courts in turn would borrow New York's statute of limitations because plaintiff's diagnosis was made there.

Plaintiff argues that, under Florida law, his cause of action arose in Florida in August 1982 when his injury became manifest. Fla.Stat. § 95.031(2) (1982). As such, plaintiff contends that Florida's four-year statute of limitations, Fla.Stat. § 95.11 (1982), governs and permitted this suit filed in August 1983 to proceed. Defendants counter that Florida substantive law provides that, in cases of asbestosis-related injuries, the cause of action arises in the jurisdiction in which the diagnosis is made. Since plaintiff's mesothelioma was diagnosed in New York, defendants contend that the Florida courts would borrow the New York statute of limitations, Fla.Stat. § 95.10 (1979), and under the New York statute of limitations, N.Y.Civ.Prac.Law, § 214 (McKinney 1984), plaintiff's action would be barred since it was not filed within three years from the last exposure to the deleterious substance. See Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297, 1298-1299 (Ct.App.1981), amended 55 N.Y.2d 802, 447 N.Y.S.2d 437, 432 N.E.2d 139 (Ct.App.1981), cert. den. 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840 (1982) (statute of limitations begins to run upon inhalation of deleterious substance). One defendant also argues on this appeal that New York substantive law should apply to plaintiff's cause of action because there were more significant contacts with New York than with Florida.

New Jersey has abandoned the traditional rule of lex loci delecti in choice-of-law tort cases in favor of a governmental interest approach to substantive choice-of-law questions. Deemer v. Silk City Textile Mach. Co., 193 N.J.Super. 643, 648-649, 475 A.2d 648 (App.Div.1984). A governmental interest approach is also used to determine whether New Jersey should apply its own statute of limitations or that of a foreign state. Heavner v. Uniroyal, Inc., 63 N.J. 130, 140-141, 305 A.2d 412 (1973); Pine v. Eli Lilly & Co., 201 N.J.Super. 186, 190-191, 492 A.2d 1079 (App.Div.1985). Both "governmental interest" tests are similar. Pine v. Eli Lilly, 201 N.J.Super. at 191, 492 A.2d 1079.

... This approach requires a two-step analysis in resolving conflicts questions: the court determines first the governmental policies evidenced by the laws of each related jurisdiction and second the factual contacts of the parties with each related jurisdiction. [Deemer v. Silk City Textile Mach. Co., 193 N.J.Super. at 649, 475 A.2d 648].

The forum state, in a conflicts situation, must decide whether to apply its own substantive law or that of a sister state. In this case, the forum, New Jersey, has no interest in applying its own law and no party contends that New Jersey substantive law should apply. Rather, the "governmental interest" approach which New Jersey employs in substantive conflicts questions in tort cases must somehow be used to decide whether Florida or New York substantive law should apply. Our concern in this case is why New Jersey should decide any aspect of this case in light of plaintiff's request for a voluntary dismissal. In order to decide which state's substantive law should apply, the forum would have to delve into the various governmental policies behind both New York and Florida substantive law on torts. If both states would apply New York's statute of limitations under their substantive law, then this case would present a false conflict or no conflict at all. We conclude, however, that Florida substantive law is not clear on whether that state's courts would conclude that plaintiff's cause of action arose in New York, the place of the diagnosis.

Another problem with the governmental interest balance in this case, is that Florida apparently continues to adhere to fairly rigid rules in conflicts cases. See Meehan v. Celotex Corp., 466 So.2d 1100, 1101 (Fla.Dist.Ct.App.1985) (substantive law of forum is applied to determine where the cause of action arose). Once Florida applies its own law to determine where the cause of action arose, i.e., where the last act necessary to establish liability occurred, Florida will borrow the other state's statute of limitations without regard to any governmental interest test. Colon v. Celotex Corp., 465 So.2d 1332, 1333 (Fla.Dist.Ct.App.1985). Conversely, New York has abandoned the traditional rule of lex loci delicti in favor of an interest-balancing test similar to that in New Jersey. Schultz v. Boy Scouts of America Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 94-98, 480 N.E.2d 679 (Ct.App.1985).

If...