Garbutt v. AO Smith Water Prods. Co. (2013)

Our plain-English summary of Garbutt v. AO Smith Water Prods. Co. (New York Supreme Court, December 20, 2013).

JoAnn Garbutt sued, individually and as administratrix of her husband John Garbutt's estate, after he was diagnosed with mesothelioma in April 2012. He testified that from 1969 to 1973, as an apprentice insulator in New York City, he applied asbestos insulation to piping, valves, pumps and boilers at commercial and residential sites. He said the dust exposed him to asbestos, including from Lennox heating systems, which he identified by nameplate and described as hot water boilers. Lennox moved for summary judgment, arguing through an affidavit from its service manager that it made no boilers until 1992. Plaintiffs responded that Lennox made furnaces throughout that period. The court denied the motion. It noted that Lennox did make heating equipment, in the form of furnaces, during his exposure years, and that Mr. Garbutt had no training in hot water systems and may not have understood how heating systems worked. The court held this created a question of credibility that a jury must decide.

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: December 20, 2013
• Citation: 2013 NY Slip Op 33443(U)
• Docket: Docket No. 190358/12, Motion Seq. No. 003
• Stage: Summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied Lennox Industries' motion for summary judgment, leaving plaintiffs' claims against Lennox to go forward.

What the court held. In an asbestos case, where a worker's identification of a defendant's product conflicts with the defendant's evidence and the worker's technical knowledge is questionable, the dispute is one of credibility that a jury must decide, so summary judgment is improper.

Issues decided: Trial Procedure and Discovery, Product Identification.

The people and their exposure

• John Garbutt: mesothelioma; died

Who	Work	Where	When	Products
John Garbutt	union apprentice insulator (construction)	New York City, New York	1969-1973	pipe and block insulation, Lennox heating systems

The defendants

• Lennox Industries, Inc. (manufacturer)
• A.O. Smith Water Products Co. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Dollas v. WR Grace & Co. (New York Supreme Court, Appellate Division, 1st Dept., 1996). The Appellate Division reversed the grants of summary judgment to W.R. Grace against plaintiffs Dollas and Gargano, finding a fact question on whether the decedents were exposed to Grace's Monokote.
• 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.

2013 NY Slip Op 33443(U)

JOANN GARBUTT, Individually and as Administratrix for the Estate of JOHN GARBUTT, Plaintiffs,

v.

A.O. SMITH WATER PRODUCTS CO., etal., Defendants.

Docket No. 190358/12, Motion Seq. No. 003.

December 20, 2013.

January 2, 2014.

Supreme Court, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge.

This motion is decided in accordance with the memorandum decision.

In this asbestos personal injury action, defendant Lennox Industries, Inc. ("Lennox") moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all other claims asserted against it on the ground that plaintiffs' decedent John Garbutt could not have been exposed to asbestos from a Lennox boiler because it did not manufacture boilers until 1992, well after Mr. Garbutt's alleged exposure period. In opposition, plaintiffs argue that Mr. Garbutt's testimony that he insulated Lennox heating systems with asbestos during the late 1960's and early 1970's combined with documentary evidence showing that Lennox manufactured furnaces throughout this time period raises a triable issue of fact that precludes summary judgment.

Plaintiffs' decedent John Garbutt was diagnosed with mesothelioma in April of 2012. He was deposed in connection with this action over the course of three days in September and October of 2012, and testified that he was exposed to asbestos while working as a union apprentice insulator from 1969 to 1973.[1] During this time frame Mr. Garbutt was primarily responsible for applying thermal insulation to piping, valves, pumps, and boilers at commercial and residential locations throughout New York City. With respect to the defendant, Mr. Garbutt testified that he was exposed to asbestos from the dust created when he applied asbestos insulation to Lennox heating systems (Deposition pp. 101-02, 350, 351):

Q. Do you recall the brand name, tradename or manufacturer's name of any of the heating systems

associated with those elbows in which you observed insulation being installed from 1969 to `73?

A. It was A.O. Smith. Yeah, A.O. Smith, Peerless, Lennox. Lennox. Burnham, American Standard. Burnham, Burnham. I believe I said American Standard, I said Lennox, American Standard. Did I say American

Standard? There were others but I am not sure. Oh, Foster Wheeler, and I think there were other brands, but I don't know offhand.

* * * *

Q. Sir, I understand you won't be able to tell me a specific job site where you may have encountered a Lennox boiler. Can you tell me what type of sites these were, commercial, residential, something else? A. Commericial and residential.

* * * *

Q. And sir, how did you identify these boilers as being manufactured by Lennox?

A. The nameplate. They all had nameplates.

Q. And for the Lennox boilers, would you be able to tell me where on the unit the nameplate appeared?

A. Either on the head or on the side.

Q. Can you tell me, did you see the name Lennox on the nameplate?

A. Yes.

On cross-examination by counsel for Lennox, Mr. Garbutt testified that the Lennox heating systems he encountered were hot water heating systems, referred to as boilers (Deposition pp. 349):

Q. . . . Sir, last time you told us that one of the heating systems that you encountered while you were an apprentice between 1969 and `73 was manufactured by a company called Lennox. Do you recall that?

A. Yes. . . .

Q. Sir, were the Lennox units hot water heating systems?

A. Yes.

Q. So that would be boilers?

A. Yes.

Summary judgement is a drastic remedy that must not be granted if there is any doubt about the existence of a triable issue of fact. Tronlone v La d'Amiante du Quebec, Ltee, 297 AD2d 528, 528-529 (1st Dept 2002). In an asbestos personal injury action, should the moving defendant make a prima facie showing of entitlement to summary judgment as a matter of law, plaintiffs must 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). All reasonable inferences should be resolved in plaintiffs' favor. Dauman Displays, Inc. v Masturzo, 168 AD2d 204, 205 (1st Dept 1990).

In support of its motion the defendant relies primarily on the affidavit of Lennox's Corporate Service Manager of Residential Heating Products, Mr. William Drake.[2] Among other things, Mr. Drake states that "Lennox Industries Inc. did not sell, ship or distribute boilers, large or small, until 1992, and therefore, any testimony or implication that Mr. Garbutt came into contact with a Lennox boiler or hot water heating system prior to 1992 is simply, and demonstrably, inaccurate."[3] Mr. Drake admits that Lennox began to manufacture "forced air furnaces" during the 1940's and does not dispute that such furnaces were available to be purchased during the relevant time period.[4]

The defendant asserts that its furnaces did not heat or circulate water or steam as described by plaintiffs' decedent. Based on his testimony, however, it is questionable whether he understood the mechanical workings of heating systems and how they operated (Deposition pp 311-12, objection omitted):

Q. You previously discussed hot water heaters. Do you recall that?

A. Hot water heaters?

Q. Yes, sir. . . .

A. Hot water heaters? Hot water heaters you would have in a private home.

Q. I am sorry. I don't recall the term of art you used? Hot water systems?

A. Hot water systems.

Q. Hot water systems. I apologize. You never had any training with reference to hot water systems, correct? A. No.

Q. You never had occasion to review any manuals or instructions with reference to hot water systems. Is that correct?

A. No.

Thus, while Mr. Garbutt testified he was exposed to asbestos from Lennox boilers, which defendant purports were not manufactured until 1992, the fact is that Lennox did manufacture heating equipment, albeit furnaces, throughout his exposure period. In light of Mr. Garbutt's questionable technical expertise regarding heating systems, the issue here is one of credibility, which as a matter of law must be determined by a jury. See Asabor v Archdiocese of N.Y., 102 AD3d 524, 527 (1st Dept 2013); Dollas v W.R. Grace & Co., 225 AD2d 319, 321 (1st Dept 1996).

Accordingly, it is hereby

ORDERED that Lennox Industries, Inc.'s motion for summary judgment is denied in its entirety.

This constitutes the decision and order of the court.

[1] Copies of Mr. Garbutt's deposition transcripts are submitted as defendant's exhibit 2-5 ("Deposition"). [2] Mr. Drake's affidavit, sworn to July 18, 2013, is submitted as defendant's exhibit 5.

[3] Id. at ¶ 6.

[4] Id. at ¶ 7.

Sources

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