Papineau v. Brake Supply Company, Inc. (W.D. Ky., July 12, 2022)

Our plain-English summary of Papineau v. Brake Supply Company, Inc. (U.S. District Court, Western District of Kentucky, July 12, 2022).

Jack Papineau was diagnosed with mesothelioma. He and his wife, Holly Papineau (who sues individually and as executrix of his estate), sued Brake Supply and several manufacturers of products that allegedly contained asbestos. Brake Supply in turn sought indemnification or apportionment from Fras-Le South America and its American subsidiary, claiming they sold it asbestos-containing brakes. The court had already dismissed the claims against Fras-Le for lack of personal jurisdiction but left open whether fault could still be apportioned to it. Fras-Le did not respond, and the Papineaus did not object if the evidence at trial supported an instruction. The court held that under Kentucky law a jury may allocate fault to a party dismissed for lack of jurisdiction, because apportionment works as a defense that limits the liability of the remaining defendant and does not create a judgment against the absent party. The court granted Brake Supply's motion, but only if it shows enough evidence at trial for a reasonable jury to find Fras-Le at fault.

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: U.S. District Court, Western District of Kentucky
• Decided: July 12, 2022
• Docket: No. 4:18-cv-168
• Stage: Discovery or evidence ruling
• State: Kentucky

Outcome. The court granted Brake Supply's motion to permit an apportionment instruction naming Fras-Le, a third-party defendant dismissed for lack of personal jurisdiction, contingent on Brake Supply presenting enough evidence at trial of Fras-Le's fault.

What the court held. Under Kentucky's comparative-fault statute, a jury may be asked to apportion fault to a party dismissed for lack of personal jurisdiction, because apportionment only limits the remaining defendants' liability and does not impose liability on the absent party.

Issues decided: Fault, Apportionment and Settlement Credits, Personal Jurisdiction, Trial Procedure and Discovery.

The people and their exposure

• Jack Papineau: mesothelioma

The defendants

• Brake Supply Company, Inc. (supplier)
• Fras-Le South America (manufacturer)
• Fras-Le (American subsidiary) (manufacturer)

Other decisions in this case

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

• Papineau v. Brake Supply Company, Inc. (September 30, 2021). The court denied Brake Supply's summary judgment motion on exposure, causation and the Middleman Statute defense, granted it on the Papineaus' punitive-damages claim, excluded only the plaintiffs' hygienist Paskal's warnings testimony, and denied the other motions to exclude experts.
• Papineau v. Brake Supply Company, Inc. (May 6, 2022). The court granted third-party defendant Fras-Le's motion to dismiss for lack of personal jurisdiction, ruling against third-party plaintiff Brake Supply.

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.

HOLLY PAPINEAU, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF JACK PAPINEAU,

Plaintiffs,

v.

BRAKE SUPPLY COMPANY, INC., ET AL. Defendants.

No. 4:18-cv-168.

July 12, 2022.

United States District Court, W.D. Kentucky, Owensboro Division.

MEMORANDUM OPINION AND ORDER

BENJAMIN BEATON, District Judge.

After doctors diagnosed Jack Papineau with mesothelioma, he and his wife sued Brake Supply and several manufacturers of products that allegedly contained asbestos. In turn, Brake Supply sought indemnification or apportionment from Fras-Le South America and its American subsidiary, alleging that they sold Brake Supply asbestos-containing brakes. Amended Third Party Complaint (TPC) (DN 154) ¶¶ 18-21, 27, 30. The Court dismissed the claims against Fras-Le for a lack of personal jurisdiction but left the question of apportionment for further briefing. DN 441 at 8 n.5. Brake Supply has since briefed the issue. DN 443. Fras-Le did not respond to Brake Supply's request at any point. Papineau is fine with apportionment if the evidence at trial will allow for an instruction. DN 444. The question is whether the Court may apportion fault, in this diversity case, to a party the Court lacks personal jurisdiction over. The answer under Kentucky law is yes. The issue arises because of two intersecting principles. First, KRS § 411.182 calls for apportionment even against a "tortfeasor who is not actually a defendant ... if he was named as a defendant in the plaintiff's complaint even though the complaint was subsequently dismissed as to him." Floyd v. Carlisle Constr. Co., 758 S.W.2d 430, 432 (Ky. 1988) (discussing apportionment among joint-tortfeasors generally); KRS § 411.182 (prescribing apportionment under comparative-fault statute specifically).[*] Second, the Kentucky Court of Appeals has held that KRS § 411.182 does not authorize "a court to exercise jurisdiction over persons who could not otherwise be summoned in that jurisdiction." Copass v. Monroe Cnty. Med. Found., Inc., 900 S.W.2d 617, 619 (Ky. Ct. App. 1995). So a court may not impose liability on a party not subject to the court's personal jurisdiction. May a court nevertheless apportion liability to a party dismissed for lack of jurisdiction in order to limit the liability of a defendant that remains before the Court?

The answer follows naturally when apportionment is conceptualized as a defense rather than a judgment. Under a comparative-fault regime, "when there are joint tortfeasors the liability of either of them is limited by the extent of his fault." Floyd, 758 S.W.2d at 432. Apportionment can be made against a "tortfeasor who is not actually a defendant" because of dismissal or settlement. Id. So apportionment "does not impose any liability upon him or warrant a judgment against him. The apportionment only determines the percentage of the total damages for which he was actually responsible," while the other parties "are responsible for the remaining percentage of the damages, and the judgment against them will be limited to that amount." Id.

Under these circumstances, apportionment serves purely as a defense to limit the liability of the existing parties rather than to allow recovery against non-parties. Hall v. MLS Nat'l Med. Evaluations, Inc., No. 5-cv-185, 2007 WL 1385943, at [*2] (E.D. Ky. May 8, 2007) (comparative fault (unlike indemnity) limits liability instead of creating a cause of action). If a court is merely limiting an existing party's liability to its proportional fault and not entering a judgment against a dismissed party, then a lack of personal jurisdiction shouldn't be an issue. This is implied in several cases out of Kentucky. For example, the Kentucky Supreme Court allowed an apportionment instruction to include an unknown motorcyclist, rejecting the position (offered in dissent) that a lack of personal jurisdiction barred apportionment. Ky. Farm Bureau Mut. Ins. Co. v. Ryan, 177 S.W.3d 797, 804 (Ky. 2005); id. at 806 (Scott, J. dissenting). A court in this district noted that apportionment could be used against a party dismissed on jurisdictional as opposed to merits grounds; unlike jurisdiction, a dismissal on the merits would've meant the party was not liable. Sadler v. Advanced Bionics, No. 3:11-cv-450, 2013 WL 1636374, at [*1] (W.D. Ky. Apr. 16, 2013).

Several courts in other jurisdictions have reached the same conclusion, implying there is no federal Due Process concern with apportioning fault against a party dismissed for lack of jurisdiction. Kansas courts, for instance, apportion fault "even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault." Brown v. Keill, 580 P.2d 867, 876 (Kan. 1978). Similarly, New Hampshire, Idaho, and Mississippi have read the term "party" in statutes similar to KRS § 411.182 to include parties that cannot be joined to the suit or held liable, including immune parties. See DeBenedetto v. CLD Consulting Eng'rs., 903 A.2d 969, 978 (N.H. 2006); Van Brunt v. Stoddard, 39 P.3d 621, 627 (Idaho 2001); Mack Trucks v. Tackett, 841 So.2d 1107, 1113 (Miss. 2003). If fault can be apportioned to absent parties in order to determine the relative fault of existing parties, then the reason for a party's absence appears irrelevant. Certainly none of the caselaw before the Court suggests otherwise. Although this Court may not hold Fras-Le liable for its relative fault, it may limit Brake Supply's liability by asking a jury to ascertain Fras-Le's relative fault (if any). So if Brake Supply presents sufficient evidence that a reasonable jury could find Fras-Le at fault for some of the relevant conduct, then the Court must allow an instruction on apportionment. Ryan, 177 S.W.3d at 804; KRS § 411.182. Whether the record ultimately justifies such a determination, however, is yet unclear. The Court therefore grants the Motion to Permit an Apportionment Instruction (DN 443) contingent on a sufficient evidentiary showing. At trial the parties may argue, and the Court will determine, whether to instruct the jury regarding Fras-Le's potential relative fault.

[*] Kentucky Revised Statute § 411.182 says that in "all tort actions ... involving fault of more than one (1) party to the action," the court "shall instruct the jury to answer interrogatories ... indicating ... (b) The percentage of the total fault of all the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under subsection (4) of this section." Subsection 4 goes on to discuss how a release may proportionally reduce other parties' liability.

Sources

• The opinion on Google Scholar
• Kentucky asbestos laws
• Kentucky asbestos exposure sites