North v. National Grid Generation (IN the Matter of New York City Asbestos Litig., 2016)

Our plain-English summary of IN the Matter of New York City Asbestos Litig. (New York Supreme Court, Appellate Division, August 4, 2016).

Charles North, as executor of Ralph North, sued over Ralph North's asbestos exposure while working at a power plant. The opinion does not name his disease. After a jury trial, plaintiff won a judgment against National Grid Generation, successor to the plant's owner LILCO, including $3.5 million for future pain and suffering. O'Connor Constructors, a contractor that settled with plaintiff before trial, was found negligent, but the jury found its negligence was not a proximate cause and that LILCO was 100% responsible. The court said LILCO gave detailed specifications for mixing and applying asbestos-containing concrete and insulation and coordinated the trades, which put plaintiff close to dust-producing insulators. The First Department affirmed the verdict and the damages. It called two jury-submission errors harmless. It upheld National Grid's contractual indemnification claim against O'Connor and modified the order to add attorneys' fees for defending plaintiff's action, but not for pursuing the indemnity claim.

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, Appellate Division, 1st Dept.
• Decided: August 4, 2016
• Citation: 142 A.D.3d 408
• Stage: Appeal from judgment after trial
• State: New York

Outcome. The First Department affirmed the jury judgment for plaintiff against National Grid ($3.5 million for future pain and suffering), and modified the indemnification order so National Grid also recovers attorneys' fees for defending plaintiff's action against O'Connor, otherwise affirming.

What the court held. An owner that specifies the means and methods of work and coordinates the trades can be liable under Labor Law § 200, and a pre-1996 indemnification clause covering all losses arising from the work can require the contractor to indemnify the owner, including fees for defending the plaintiff's action but not for prosecuting the indemnity claim.

Issues decided: Fault, Apportionment and Settlement Credits, Compensatory Damages, Employer and Contractor Liability, and Workers' Compensation, Premises Owner Liability, Trial Procedure and Discovery, Successor Liability.

The people and their exposure

• Ralph P. North

The defendants

• National Grid Generation, LLC (premises owner)
• O'Connor Constructors, Inc. (contractor)
• Air & Liquid Systems Corporation, as Successor by Merger to Buffalo Pumps, Inc. (manufacturer)

Other decisions in this case

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

• Bernard v. Colgate-Palmolive Co. (IN the Matter of New York City Asbestos Litig.) (October 2, 2012). The First Department affirmed the trial court's order consolidating the three plaintiffs' actions against Colgate-Palmolive for a joint trial, rejecting Colgate-Palmolive's challenge.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (New York Supreme Court, Appellate Division, 1st Dept., 2014). The Appellate Division affirmed both jury-verdict judgments for the plaintiffs (Konstantin against Tishman Liquidating Corporation, Dummitt against Crane Co.) and dismissed the appeal from the order denying Crane's post-trial motion as subsumed in the judgment appeal; one justice, joined by another, dissented in part as to Dummitt.
• Penn v. Amchem Products (New York Supreme Court, Appellate Division, 1st Dept., 2011). The Appellate Division held that the trial court was wrong and that the evidence was enough for the jury to find Kerr Corporation liable to plaintiff Penn. It rejected Kerr's unpreserved challenges, noted the damage awards deviate from reasonable compensation under CPLR 5501(c), and recalled and vacated its May 2010 decision.

Amounts in the opinion

• $3,500,000 (other)

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.

142 A.D.3d 408 (2016)

39 N.Y.S.3d 125

2016 NY Slip Op 05729

In the Matter of NEW YORK CITY ASBESTOS LITIGATION.

CHARLES D. NORTH, as Executor of RALPH P. NORTH, Respondent,

v.

AIR & LIQUID SYSTEMS CORPORATION, as Successor by Merger to BUFFALO PUMPS, INC., etal.,

Defendants,

NATIONAL GRID GENERATION, LLC, Respondent-Appellant, and

O'CONNOR CONSTRUCTORS, INC., Appellant-Respondent.

190114/13, 1162, 1161, 1160.

Decided August 4, 2016.

Appellate Division of the Supreme Court of New York, First Department.

[*409] Judgment, Supreme Court, New York County (Martin Shulman, J.), entered January 28, 2015, after a jury trial, awarding plaintiff, inter alia, $3,500,000,00 in damages for future pain and suffering as against defendant National Grid Generation, LLC, unanimously affirmed, without costs. Order, same court and Justice, entered March 13, 2015, which granted National Grid's motion for summary judgment on its claim against defendant O'Connor Constructors, Inc. for indemnification, except for attorneys' fees, and denied O'Connor's motion for summary judgment dismissing National Grid's indemnification claim as against it, unanimously modified, on the law, to grant National Grid's motion as to attorneys' fees solely in connection with its defense against plaintiff's action, and otherwise affirmed, without costs. Concur — Mazzarelli, J.P., Moskowitz, Manzanet-Daniels and Gesmer, JJ.

The jury verdict is based on sufficient evidence and is not against the weight of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 498-499 [1978]). The evidence demonstrates that LILCO, defendant National Grid's predecessor in interest, issued detailed specifications directing contractors in the means and methods of mixing and applying asbestos-containing concrete and insulation at the power plant, thus supporting the jury's finding of a violation of Labor Law § 200 (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). It is of no consequence that LILCO ensured that its directives were followed by supervising the superintendents, rather than by supervising the workers directly. Further, LILCO was admittedly in charge of trade coordination, i.e., directing the trades as to where and when to do their work, which resulted in plaintiff's working in close contact with the asbestos-dust-producing insulators (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352-353 [1998]).

The jury's finding that O'Connor, which settled with plaintiff before trial, was negligent but that its negligence was not a proximate cause of plaintiff's injuries and that LILCO was 100% responsible was a fair interpretation of the evidence in light of LILCO's supervision and control of the injury-producing activity (see Matter of New York Asbestos Litig., 28 AD3d 255 [1st Dept 2006]).

The award for future pain and suffering does not deviate materially from what would be reasonable compensation (CPLR 5501; see e.g. Matter of New York City Asbestos Litig., 121 AD3d 230, 255 [1st Dept 2014], mot to dismiss appeal [*410] denied 24 NY3d 1216 [2015]; Penn v Amchem Prods., 85 AD3d 475 [1st Dept 2011]).

While, as National Grid argues, it was error to permit the jury to deliberate on a theory of a defective condition of the premises under Labor Law § 200 and on the issue of LILCO's recklessness, these errors are harmless in light of the jury's other findings. Any error in the wording of the charge directing the jury not to find plaintiff's employers liable during the time he was employed by them is unpreserved.

The trial court correctly granted National Grid summary judgment on its claim against O'Connor for contractual indemnification (see Balbuena v New York Stock Exch., Inc., 49 AD3d 374, 376 [1st Dept 2008], lv denied 14 NY3d 709 [2010]; Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268 [1st Dept 2007]). The clause in the contract between LILCO and

O'Connor (which predates the enactment of General Obligations Law § 5-322.1) provided for indemnification of LILCO by O'Connor for "all losses, damages, claims, liens and encumbrances, or any or all of them, arising out of or in any way connected with the work," whether or not LILCO was negligent. The clause was triggered by the trial evidence. O'Connor's contention that National Grid is not a successor in interest to LILCO on the contract is without merit. Although National Grid is not entitled to attorneys' fees incurred in prosecuting the indemnification claim against O'Connor (see Hooper Assoc. v AGS Computers, 74 NY2d 487 [1989]), it is entitled to attorneys' fees incurred in defending against plaintiff's action (see e.g. DiPerna v American Broadcasting Cos., 200 AD2d 267 [1st Dept 1994]; Breed, Abbott & Morgan v Hulko, 139 AD2d 71 [1st Dept 1988], affd 74 NY2d 686 [1989]).

We have considered defendants' remaining arguments for affirmative relief and find them unavailing. The decision and order of this Court entered herein on June 28, 2016 (140 AD3d 610 [2016]), as corrected on July 13, 2016, is hereby recalled and vacated (see 2016 NY Slip Op 81351[U] [2016] [decided simultaneously herewith]).

Sources

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