Statute of Repose and Independent Contractor Defense Save Asbestos Defendants

While asbestos litigation remains active in New Jersey with numerous cases wending their way through the trial court level, appellate decisions, even unpublished ones, are relatively less common.  Earlier this month saw one such opinion, however. The decision, in a case entitled Barile v. 3M Company, et al., addresses two issues that may prove to be beneficial to asbestos defendants in New Jersey.

The case involved a deceased union insulator who claimed asbestos exposure at numerous job sites.  One of the sites was an Exxon facility in Linden, New Jersey, for which Exxon contracted with Foster Wheeler to design, build, and install a large customized waste heat boiler.  Foster Wheeler subcontracted with Philip Carey Manufacturing Company for the installation, and the subsequent removal and reinstallation, of the boiler, and Philip Carey, in turn, hired union insulators (including the decedent) to perform this work.  Exxon and Foster Wheeler were thus among the multiple defendants named in the case.

At trial, the trial judge granted a directed verdict dismissing the claims against Exxon arising form this alleged exposure, finding that plaintiff had not presented sufficient evidence to refute Exxon’s claim that it was the responsibility of Philip Carey — decedent’s employer — as an independent contractor to determine the proper safety precautions and warnings to be provided to its employees.  As to Foster Wheeler, the trial court ruled that any claims relating to the initial design, construction, and installation of the boiler were barred by the statute of repose, and that any negligence claims against Foster Wheeler were similarly barred  by the independent contractor defense (i.e., that Philip Carey was responsible for the safety of its own employees).  The jury was allowed to consider whether Foster Wheeler was, however, strictly liable for the boiler — as repaired — containing hazardous asbestos insulation; on this claim, the jury found in favor of plaintiff and awarded in excess of $1.75 million.

On appeal, the Appellate Division reversed the judgement against Foster Wheeler, finding that the statute of repose barred ALL of the claims against Foster-Wheeler because the statute of repose bars any claim based on an improvement to real property that is not filed within 10 years of the completion of the work.  In reaching this decision, the court concluded that the customized boiler was not a “standard” product for which Foster Wheeler should be treated as a manufacturer.

Wtih respect to Exxon, the court upheld the trial court’s determination that plaintiff had not overcome Exxon’s indepdent contractor defense, finding that plaintiff had not presented sufficient evidence to demonstrate that Exxon controlled the means and methods of the work that was done to install, remove, and reinstall the boiler.

With the continued presence of a large asbestos docket in New Jersey, this decision should prove helpful for those defendants facing premises liability claims who are also able to articulate either a stature of repose and/or an independent contractor defense.

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