Unger v. AW Chesterton Co. (2021)

Our plain-English summary of Unger v. AW Chesterton Co. (New York Supreme Court, August 4, 2021).

Edward Unger, who was diagnosed with mesothelioma, and his wife Lisa sued many companies in New York County. They alleged his asbestos exposure caused personal injuries. One defendant, Watts Regulator Co., is incorporated and based in Massachusetts. Watts moved to dismiss for lack of personal jurisdiction. It argued that Unger's testimony about working with Watts valves at a New Hampshire medical center from 1977 to 1997, and his brief bystander exposure to Watts valves on Governor's Island, did not arise from its New York contacts. The court first found no general jurisdiction, because Watts was not "at home" in New York. It then looked at specific jurisdiction under New York's long-arm statute. It noted that Watts had operated offices in New York and used New York distributors. It accepted the plaintiffs' allegations as true. Because the valves Unger worked on bore the Watts name, the court found a connection between the alleged exposure and Watts' New York business. It denied the motion in full.

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: August 4, 2021
• Citation: 2022 NY Slip Op 31441(U)
• Stage: Motion to dismiss
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied defendant Watts Regulator Co.'s motion to dismiss for lack of personal jurisdiction, so plaintiffs Edward and Lisa Unger's claims against Watts continue.

What the court held. On a motion to dismiss for lack of personal jurisdiction, the pleading is read liberally and the alleged facts taken as true. A connection between the alleged asbestos exposure from valves bearing the Watts name and Watts' New York business was enough to defeat dismissal, even though there was no general jurisdiction.

Issues decided: Personal Jurisdiction.

The people and their exposure

• Edward Unger: mesothelioma

Who	Work	Where	When	Products
Edward Unger		Southern New Hampshire Medical Center, Nashua, New Hampshire	1977 to 1997	Watts valves (Watts Regulator Co.)
Edward Unger	; worked near others using it	Governor's Island, New York		Watts gate or globe valves (Watts Regulator Co.)

The defendants

• Watts Regulator Co. (manufacturer)

Other decisions in this case

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

• Unger v. AW Chesterton Co. (March 1, 2022). The court denied the Watts defendants' motion for summary judgment and partly granted plaintiff Edward Unger's cross-motion for sanctions, with conditional preclusion and $10,000 in costs and fees against each of Watts Water Technologies, Watts Regulator Co. and their law firm.
• Unger v. AW Chesterton Co. (April 11, 2022). The court denied the Watts defendants' motion to apply New Hampshire law, so plaintiffs Edward and Lisa Unger prevailed on the choice-of-law question and New York law will apply.

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.

2022 NY Slip Op 31441(U)

EDWARD UNGER, LISA UNGER, Plaintiff,

v.

A.W. CHESTERTON COMPANY, ABB, INC., All ACQUISITION CORPORATION, LLC, AIR & LIQUID

SYSTEMS CORPORATION, ALFA LAVAL, INC., ALLEN-BRADLEY COMPANY, INC., AMTROL, INC.,

ARMSTRONG INTERNATIONAL, INC., ATWOOD & MORRILL CO., INC., AURORA PUMP COMPANY,

BLACKMER PUMP, BURNHAM CORPORATION, BW/IP INTERNATIONAL CO., CARRIER

CORPORATION, CATERPILLAR INC., CBS CORPORATION, CLARK RELIANCE CORPORATION,

CLEAVER-BROOKS COMPANY, CRANE CO., CROWN BOILER CO., CUMMINS ENGINE COMPANY,

INC., CUMMINS INC., CUMMINS NORTHEAST, INC., DEZURIK, INC., EATON CORPORATION,

ELECTROLUX HOME PRODUCTS, INC., ELLIOTT TURBOMACHINERY CO., INC., FLOWSERVE US,

INC., FMC CORPORATION, FOSTER WHEELER, LLC, GENERAL ELECTRIC COMPANY, GENUINE

PARTS COMPANY, GOULD ELECTRONICS, INC., GOULDS PUMPS, INC., GREENE, TWEED & CO.,

INC., GRINNELL CORPORATION, HENRY TECHNOLOGIES, INC., HONEYWELL INTERNATIONAL,

INC., HOWDEN BUFFALO, INC., I.T.T. INDUSTRIES, INC., INGERSOLL RAND, INC., JENKINS BROS.,

LENNOX INDUSTRIES, INC., LIGHTOLIER INCORPORATED, METROPOLITAN LIFE INSURANCE

COMPANY, MORSE TEC LLC, NAPA AUTO PARTS, NASH ENGINEERING COMPANY (THE), NEW

ENGLAND INSULATION CO., PNEUMO ABEX CORPORATION, PNEUMO-ABEX LLC, PROGRESS

LIGHTING, INC., RHEEM MANUFACTURING COMPANY, INC., ROCKWELL AUTOMATION, INC.,

SCHNEIDER ELECTRIC USA, INC., SPENCE ENGINEERING COMPANY, INC., SPIRAX SARCO, INC.,

SPX COOLING TECHNOLOGIES, INC., SUPERIOR LIDGERWOOD MUNDY CORP., THRUSH CO.,

INC., TUTHILL CORPORATION, UNION CARBIDE CORPORATION, VELAN VALVE CORP., WARREN

PUMPS LLC, WEIL McLAIN, WILLIAM POWELL COMPANY (THE), YORK INTERNATIONAL

CORPORATION, BARNES & JONES, INC., MUELLER CO., O.C. KECKLEY COMPANY, SKIDMORE

PUMP, WATTS REGULATOR COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO WARREN

WEBSTER, WATTS WATER TECHNOLOGIES, INC., CAMERON INTERNATIONAL CORPORATION

INDIVIDUALLY AND AS SUCCESSOR TO PENNSYLVANIA PUMP & COMPRESSOR COMPANY AND

COOPER BESSEMER, SID HARVEY INDUSTRIES, INC., SID HARVEY SUPPLY, INC., SIEMENS

CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO MURRAY & FURNAS, DISTRIBUTOR

CORPORATION OF NEW ENGLAND, EMERSON SWAN, INC., HAJOCA CORPORATION, HAJOCA

PLUMBING SUPPLY COMPANY, PEABODY SUPPLY CO., ECR INTERNATIONAL, INC.,

INDIVIDUALLY AND AS SUCCESSOR TO DUNKIRK, DUNKIRK BOILERS AND UTICA BOILERS,

KOHLER CO., HUBBELL INCORPORATED (DELAWARE), GRUNDFOS CBS INC., INDIVIDUALLY

AND AS SUCCESSOR TO PACO PUMPS AND PACIFIC PUMPS, PACO PUMPS, INC., PCC FLOW

TECHNOLOGIES, INC., F/K/A PCC FLOW TECHNOLOGIES LP, INDIVIDUALLY AND AS

SUCCESSOR TO PACO PUMPS AND PACIFIC PUMPS, PCC FLOW TECHNOLOGIES LP, AS

SUCCESSOR IN INTEREST TO PACO PUMPS, INC., PRECISION CASTPARTS CORP.,

INDIVIDUALLY AND AS SUCCESSOR TO PACIFIC PUMPS AND PACO PUMPS, SULZER PROCESS

PUMPS (US), INC., INDIVIDUALLY AND AS SUCCESSOR TO PACO PUMPS AND SULZER PUMPS,

HOUSTON, INC., SULZER PUMPS (US), INC., INDIVIDUALLY AND AS SUCCESSOR TO JOHNSTON

PUMP AND AHLSTROM PUMPS AND PACO PUMPS AND SULZER PUMPS, HOUSTON, INC.,

SIEMENS INDUSTRY, INC., SUCCESSOR IN INTEREST TO SIEMENS ENERGY & AUTOMATION,

INC., AERMOTOR PUMPS, INC., INDIVIDUALLY AND AS SUCCESSOR TO MUELLER PUMP AND

WEINMAN PUMP, AMW PUMP COMPANY, INC., INDIVIDUALLY AND AS SUCCESSOR TO MUELLER

PUMP, AERMOTOR, AND WEINMAN, GRINNELL CORPORATION, INDIVIDUALLY AND AS

SUCCESSOR TO MUELLER PUMP AND WEINMAN PUMP, JIM WALTER CORPORATION,

INDIVIDUALLY AND AS SUCCESSOR TO MUELLER CO., MUELLER WATER PRODUCTS AND

MUELLER PUMP, MUELLER PUMP COMPANY, MUELLER WATER PRODUCTS INC., INDIVIDUALLY

AND AS SUCCESSOR TO MUELLER PUMP COMPANY, AMW PUMPS, AND WEINMAN PUMP,

MUELLER STEAM SPECIALTY, I.G. MARSTON CO., INC., COOPER CAMERON CORPORATION,

INDIVIDUALLY AND AS SUCCESSOR TO PENNSYLVANIA PUMP & COMPRESSOR COMPANY AND

COOPER BESSEMER AND GROVE REDUCER VALVES;, PRATT & WHITNEY POWER SYSTEMS,

INC., UNITED TECHNOLOGIES CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO PRATT &

WHITNEY (PRATT & WHITNEY/AIRCRAFT DIVISION), RAYTHEON TECHNOLOGIES CORPORATION

F/K/A UNITED TECHNOLOGIES CORPORATION, BLAKE GROUP HOLDINGS, INC., F.W. WEBB

COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO BERGEN INDUSTRIAL SUPPLY CO., FORT

KENT HOLDINGS, INC. F/K/A DUNHAMBUSH, INC., GRUNDFOS PUMPS CORPORATION,

INDIVIDUALLY AND AS SUCCESSO-IN-INTEREST TO PACIFIC PUMP COMPANY, JOMAR

DISTRIBUTORS, INC., McMASTER-CARR SUPPLY COMPANY, TACO, INC., TOTAL AIR SUPPLY

INC., VIKING PUMP, INC., A UNIT OF IDEX CORPORATION, W. W. GRAINGER, INC., BALTIMORE

AIRCOIL COMPANY, INC., NASH ENGINEERING HOLDINGS LLC, Defendant.

Index No. 190098/2020, Motion Seq. No. 007.

Motion August 4, 2021.

April 29, 2022.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449, 500, 646, 647, 648, 649, 650, 651, 652, 653, 654, 655, 656, 657, 658, 659, 660, 661, 662, 663, 664, 665, 719 were read on this motion to/for DISMISSAL.

Upon the foregoing documents, it is hereby ordered that defendant Watts Regulator Co.'s (hereinafter referred to as Watts) motion pursuant to CPLR § 3211(a)(8) to dismiss plaintiff's complaint for lack of personal jurisdiction is denied for the reasons set forth below.

Plaintiff, Edward Unger, was diagnosed with mesothelioma. See Notice of Motion, Exh. D, Plaintiff's Depo. Tr., p. 124, In 22. Plaintiff commenced the instant action against Watts on April 20, 2020 seeking damages for personal injuries from alleged exposure to asbestos. Plaintiff was deposed for eight days wherein Watts argued that Plaintiff "testified that over the approximately twenty-year period from 1977 to 1997, he believes he was exposed to asbestos from working with `Watts valves at Southern New Hampshire Medical Center in Nashua, New Hampshire." Affirmation In Support Of Defendant Watts Regulator Co.'s Motion To Dismiss For Lack Of Personal Jurisdiction, p. 3, ¶ 12. Watts is both incorporated and has its principal place of business in Massachusetts. See Notice of Motion, Exh. L, Annual Report. Watts moves to dismiss under CPLR § 3211(a)(8) for lack of personal jurisdiction. Plaintiff opposes and Watts replies.

Pursuant to CPLR § 3211(a)(8), "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that ... the court has not jurisdiction of the person of the defendant". Further, CPLR § 302(a) explicitly states that "a court may exercise personal jurisdiction over any non-domiciliary ... who ... (1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or (2) commits a tortious act within the state ... or (3) commits a tortious act without the state causing injury to person or property within the state ... if [they] (i) regularly [do] or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce".

Preliminarily, Watts argues that plaintiff does not have general jurisdiction, as Watts is a Massachusetts corporation with its principal place of business in Massachusetts. General jurisdiction is applicable "when a foreign corporation's `continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.'" Daimler AG v Bauman, 571 US 117, 118, (2014). In the instant matter, plaintiff has not provided evidence to demonstrate that Watts' contacts within New York "are so `continuous and systematic' as to render them essentially at home in the forum State." Goodyear Dunlop Tires Operations, S.A. v Brown, 564 US 915, 919, (2011). "Aside from an exceptional case, a corporation is at home only in a state that is the company's place of incorporation or its principal place of business". Lowy v Chalkable, LLC, 186 AD3d 590, 592 (2nd Dep't 2020) (internal quotations and citations omitted). Therefore, this Court finds that there is no general jurisdiction over Watts. As for long arm jurisdiction, CPLR § 302(a) specifies circumstances wherein specific jurisdiction may be found. The Court of Appeals has held that "proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted". Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 (1988). Further, "there must be an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation." Bristol-Myers Squibb Co. v Superior Ct. of California, San Francisco County, 137 S Ct 1773, 1780, (2017) (internal quotations and brackets omitted). Plaintiff alleges that he was exposed to asbestos by valves which possess the name "Watts" from 1977 to 1997. Conversely, Watts contends that due process does not permit specific jurisdiction in New York to be exercised, as "[p]laintiffs' claims based on Mr. Unger's brief alleged Governor's Island bystander exposure to work with `Watts' gate or globe valves do not `arise out of' Watts Regulator's contacts with New York under BMS because Watts Regulator did not make or sell those types of valve anywhere until approximately a decade later." Watts Aft. In Support, supra, at p. 8. Watts further asserts that "plaintiffs' claims based on Mr. Unger's alleged direct work with `Watts' valves in New Hampshire exposure clearly do not `arise out of or relate to' Watts Regulator's contacts with New York, because plaintiffs have not shown any relationship whatsoever, much less a relationship sufficient to support jurisdiction, between any New York conduct by Watts Regulator and their New Hampshire-based claims." Id. However, "Watts Regulator operated offices in New York City, Fairport, New York and Long Island and also employed a number of New York-based distributors over the years for its products." Affirmation In Opposition To Defendant Watts Regulator Co.'s Motion To Dismiss For Lack Of Personal Jurisdiction, p. 23, ¶ 80. Plaintiff alleged that he was exposed to asbestos through Watts' products during the time he was working in New York at Governor's Island. "On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026)." Leon v Martinez, 84 NY2d 83, 87 (1994). This court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory". Id. at 87-88. It is clear that plaintiffs have demonstrated there was a connection between the alleged exposure of asbestos and the business Watts was conducting in New York by specifying that the valves plaintiff worked on bore the name "Watts". Therefore, it is not unwarranted for plaintiff to claim the exercise of personal jurisdiction over Watts. Thus, Watts' arguments fail and its motion to dismiss is denied.

Accordingly, it is

ORDERED that defendant Watts Regulator Co.'s motion to dismiss for lack of personal jurisdiction is hereby denied in its entirety; and it is further

ORDERED that, within 21 days of entry, plaintiffs shall serve a copy of this decision/order upon all parties, together with notice of entry.

This constitutes the decision/order of the court.

Sources

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