Burawa v. Acker Drill Co. (2014)

Our plain-English summary of Burawa v. Acker Drill Co. (New York Supreme Court, March 31, 2014).

Robert Burawa, a Queens, New York automotive and marine repairman, was diagnosed with mesothelioma in June 2012 and died in January 2013. He and his wife Deborah sued over asbestos exposure, and she continued the case as executrix. He testified that he worked at his father's repair shop, Bay Towing, rebuilt engines and was exposed to asbestos from scraping head gaskets. He identified Hercules engine blocks as a source. Electrolux Home Products, sued as successor to Hercules, moved for summary judgment, saying it had no successor relationship to the Hercules motor brand. Plaintiffs submitted documents showing that Electrolux's predecessor, Hupp, bought Hercules' assets in 1961, ran it until 1966 and then sold it to White Motor without White assuming its liabilities. The court held that a reasonable inference arose that Burawa was exposed to Hercules engines made from 1961 to 1966. Electrolux did not dispute the corporate history and did not ask Burawa about those years at his deposition. The court found a triable issue of fact and denied the motion.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court
• Decided: March 31, 2014
• Citation: 2014 NY Slip Op 30887(U)
• Docket: Docket No. 190272/12, Motion Seq. 006
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The trial court denied Electrolux Home Products' motion for summary judgment, leaving plaintiffs' claims over Hercules engine blocks to proceed.

What the court held. A reasonable inference that the plaintiff was exposed to Hercules engines made in the period for which the defendant is responsible, together with the defendant's failure to rebut the corporate history, creates a triable issue of fact that defeats summary judgment.

Issues decided: Product Identification, Successor Liability.

The people and their exposure

• Robert Bruce Burawa: mesothelioma; died

Who	Work	Where	When	Products
Robert Bruce Burawa	automotive and marine repairman (shipyards and maritime work)	Bay Towing, Queens, New York	1950s-1970	gaskets and packing, Hercules engine blocks

The defendants

• Electrolux Home Products, Inc. (manufacturer)
• Acker Drill Company

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Barawa v. Acker Drill Co. (December 3, 2013). The court denied Ford Motor Company's motion for summary judgment except for the unopposed loss of consortium claim, which was dismissed; plaintiffs largely prevailed.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Reid v. Georgia-Pac. Corp. (New York Supreme Court, Appellate Division, 1st Dept., 1995). The Appellate Division affirmed the denial of Rapid-American Corporation's motion for summary judgment, so plaintiff Kenneth Reid's claim against it continues.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2014 NY Slip Op 30887(U)

DEBORAH ANN BURAWA, Individually and as Executrix of the Estate of ROBERT BRUCE

BURAWA, Plaintiffs,

v.

ACKER DRILL COMPANY, etal., Defendants.

Docket No. 190272/12, Motion Seq. 006.

March 31, 2014.

Supreme Court, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, J.S.C.

In this asbestos personal injury action, defendant Electrolux Home Products, Inc. ("Electrolux")[1] moves pursuant to CPLR § 3212 for summary judgment dismissing the complaint and all cross-claims asserted against it on the ground that it is not responsible for the Hercules engine blocks plaintiff Robert Burawa identified as a source of his asbestos exposure. Summary judgment is a drastic remedy that should be granted only if there are no triable issues of fact. Vega v Restani Constr. Corp., 18 NY3d 499, 503 (2012); see also Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986). In deciding a summary judgment motion the court's role is to determine if any triable issues exist, not the merits of any such issues. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). In doing so, the court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence. Angeles v Aronsky, 105 AD3d 486, 488-89 (1st Dept 2013).

In asbestos personal injury cases, should the defendant prima fade establish its entitlement to summary judgment, the plaintiff must then demonstrate that there was actual exposure to asbestos fibers released from the defendant's product. Cawein v Flintkote Co., 203 AD2d 105, 106 (1st Dept 1994). While the plaintiff need only show "facts and conditions from which the defendant's liability may be reasonably inferred," (Reid v Georgia-Pacific Corp., 212 AD2d 462, 463 [1st Dept 1995]), the plaintiff cannot rely on conjecture or speculation. Roimesher v Colgate Scaffolding, 77 AD3d 425, 426 (1st Dept 2010).

In light of this standard, and for the reasons set forth below, this summary judgment motion is denied. Robert Burawa was diagnosed with mesothelioma on June 4, 2012. He died on January 21, 2013. Prior to his death, Mr. Burawa and his wife Deborah Burawa commenced this action to recover for personal injuries caused by his alleged exposure to asbestos-containing products which he sustained over the course of more than twenty years as an automotive and marine repairman.

Mr. Burawa was deposed on October 5, 2012 and November 19, 2012.[2] He testified that during the early 1950's when he was 8-10 years old he began assisting at Bay Towing, his father's Queens, New York repair shop. By 1970, marine repairs had become the vast majority of Bay Towing's business. Mr. Burawa testified that he rebuilt engines and salvaged junk engines for spare parts and that he was exposed to asbestos from scraping head gaskets. In this regard, Mr. Burawa expressly identifies Hercules engine blocks as a source of his exposure.

In its moving papers the defendant asserts that there is no successor relationship between Electrolux and the Hercules motor brand. In opposition plaintiffs submit documents[3] which among others things establish: that the Hupp Corporation ("Hupp") to which Electrolux is the successor purchased Hercules' assets in 1961; that Hupp operated Hercules as a division for five years until 1966; that Hupp sold Hercules in the form of an asset sale to White Motor Corporation ("White Motor"); and that there is nothing in the agreement between Hupp and White Motor which demonstrates that White Motor assumed any of Hercules' liabilities. Plaintiffs contend that such documents show that Hupp retained the liabilities associated with Hercules engine blocks manufactured from 1961 through 1966.

In reply the defendant contends that plaintiffs failed to demonstrate that Mr. Burawa actually worked on Hercules engine blocks during this limited time frame. Nevertheless, I find that a reasonable inference could be drawn from Mr. Burawa's testimony that he was exposed to Hercules engines manufactured during the period 1961-1966 given that he continuously worked with marine engines towards the end of his career at Bay Towing and that Hercules apparently supplied engine blocks to several major engine manufacturers during this time. The defendant's reply does not challenge plaintiffs' recitation of Hercules' corporate history or plaintiffs' assertion that the defendant is responsible for all Hercules engine blocks manufactured between 1961 and 1966. Mr. Burawa testified as follows (Deposition pp. 251-52, 255-56, objections omitted): Q. Let me ask you this: Could you tell me the brand of marine engines that you worked on during your career doing marine engine work?

A. Yes, like I said. . . there was Gray Marine. There was Chris-Craft, Norberg, Ford Interceptor. There's another very popular motor. Gray, Chris-Craft, Norberg, Ford Interceptor. I'm at a loss. I can't think right now. There were one or two more I believe. I'm not positive.

Q. Let me ask you this question: In some cases was the block of the engine made by a company other than the engine manufacturer?

A. Yes.

Q. Who was the block maker than you're familiar with?

A. Chris-Craft I know had Hercules motors and Gray Marine, I believe they had Continental. Norberg I think was a Hercules block too. I'm pretty sure.

* * * *

Q. You mentioned that you believe that Hercules blocks were used in conjunction with Norberg engines? A. Yes, I believe so. I wouldn't swear to it, but I know that Chris-Craft was and Gray — not Gray Marine, the Chris-Craft and Norberg, is that all I said?

Q. I think you said a few others too. I'm not sure. But with regard to my question, what does that mean, the block in conjunction with Norberg? What did Norberg do with this block?

A. They're the one that manufactured that motor and the other — like the Chris-Craft company and all, they used that motor as a marine motor.

Q. Was the Hercules a motor?

A. Yes, Hercules was a motor company, yes, but it was used in marine, but Hercules didn't have its own marine motor. All the blocks were made by Hercules.

Q. So Hercules would make this motor block?

A. Yes, and it supplied it to different companies with that motor block.

Q. What would the different companies do with the block?

A. They would make a marine engine and put their name on it. It would be called Chris-Craft or Norberg. 1 forget the other one.

The defendant declined to specifically question Mr. Burawa whether he believed he was exposed to Hercules engine blocks manufactured between 1961 to 1966 despite having been given an opportunity to do so. As such I find that there remains a triable issue of fact as to the defendant's liability which precludes summary judgment in its favor. Vega v Restani Constr. Corp., supra, at 503 (the party moving for summary judgment carries the initial burden to produce evidence which prima facie resolves all material issues of fact in its favor).

Accordingly, it is hereby

ORDERED that Electrolux Home Products, Inc.'s motion for summary judgment is denied in its entirety.

This constitutes the decision and order of the court.

[1] Electrolux Home Products, Inc. is sued herein as "Electrolux Home Products, Inc., Individually and as Successor to Gibson White and Hercules and Blaw-Knox Company".

[2] Copies of Mr. Burawa's deposition transcripts are submitted as defendant's exhibits B & C ("Deposition"). [3] See Electrolux's June 20, 2013 Objections and Responses to Plaintiffs' Standard Set of Liability Interrogatories and Request for Production of Documents; May 14, 1968 correspondence from William A. Giddens to H.R. Gill; October 21, 1966 Supplemental Agreement between White Motor and Hupp; and excerpts from a 1961 Hupp report (collectively submitted as defendant's exhibit D).

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites