Unger v. AW Chesterton Co. (N.Y. Sup. Ct., Apr. 11, 2022)

Our plain-English summary of Unger v. AW Chesterton Co. (New York Supreme Court, April 11, 2022).

Edward Unger and his wife sued many companies, including Watts Regulator Co. and Watts Water Technologies, Inc., over personal injuries from alleged asbestos exposure. The opinion refers to Mr. Unger's mesothelioma diagnosis. He testified that in 1973-1974 he worked with Watts gate and globe valves for about three and a half months at Governor's Island, New York. He also testified that from 1977 to 1997 he believed he was exposed while working with Watts valves at a medical center in Nashua, New Hampshire. The Unger plaintiffs live in New Hampshire. The Watts defendants asked the court to apply New Hampshire law, arguing that the place of injury was where he became ill. The court denied the motion. It found the Watts defendants had not shown a relevant conflict between New York and New Hampshire law. It also applied New York's interest analysis, treating the asbestos laws at issue as conduct-regulating rules. It held that the place of the wrong was where the asbestos first entered his body, in New York, not where he was diagnosed. New York law therefore applies.

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: April 11, 2022
• Citation: 2022 NY Slip Op 31495(U)
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. 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.

What the court held. Under New York interest analysis, asbestos laws are conduct-regulating rules, so the law of the place of the tort applies. That place is where the plaintiff was first exposed, not where he was diagnosed; the movant also failed to show a relevant conflict between New York and New Hampshire law.

Issues decided: Choice of Law.

The people and their exposure

• Edward Unger: mesothelioma

Who	Work	Where	When	Products
Edward Unger	worked with Watts gate and globe valves	Governor's Island, New York	1973-1974	gaskets and packing, Watts gate and globe valves (Watts Regulator Co.; Watts Water Technologies, Inc.)
Edward Unger	worked with Watts valves	Southern New Hampshire Medical Center, Nashua, New Hampshire	1977-1997	Watts valves (Watts Regulator Co.; Watts Water Technologies, Inc.)

The defendants

• Watts Regulator Co. (manufacturer)
• Watts Water Technologies, Inc. (manufacturer)

Other decisions in this case

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

• Unger v. AW Chesterton Co. (August 4, 2021). 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.
• 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.

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 31495(U)

EDWARD UNGER, LISA UNGER, Plaintiff,

v.

A.W. CHESTERTON COMPANY, ABB, INC., AII 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 SUCCESSOR-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. 030.

Motion April 11, 2022.

May 6, 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 030) 955, 956, 973 were read on this motion to/for MISCELLANEOUS.

Upon the foregoing documents, it is hereby ordered that Watts Regulator Co.'s and Watts Water Technologies, Inc.'s (herein after collectively referred to as Watts Defendants) joint motion to apply New Hampshire law is denied for the reasons set forth below.

Plaintiffs Edward Unger and his wife brought suit against Watts Defendants for personal injuries due to alleged exposure to asbestos. Mr. Unger was deposed over the course of eight days, in which he testified that between 1973 and 1974, he worked with Watts gates and globe valves for three and a half months while at Governor's Island, New York. Mr. Unger also testified that over a twenty year period from 1977 to 1997, he surmises that he was exposed to asbestos while working with Watts valves at the Southern New Hampshire Medical Center in Nashua, New Hampshire. The Watts Defendants make a joint motion to apply New Hampshire law, in which Plaintiffs oppose. No reply papers were filed.

Preliminarily, the Court notes that plaintiffs have amply demonstrated in the opposition papers that the Watts Defendants failed to meet their initial "burden of showing a relevant conflict between the laws of New York and" New Hampshire. Farallon v Mexvalo, 146 AD3D 442, 442 (1st Dept 2017). Thus, the Court need not undertake a choice of law analysis, and the Watts Defendant's motion is denied. However, even if the Court were to consider the Watts' Defendants arguments, moving defendants' arguments would still fail, as detailed briefly below.

"In the context of tort law, New York utilizes interest analysis to determine which of two competing jurisdictions has the greater interest in having its law applied in the litigation. The greater interest is determined by an evaluation of the facts or contacts which relate to the purpose of the particular law in conflict. Two separate inquiries are thereby required to determine the greater interest: (1) what are the significant contacts and in which jurisdiction are they located; and, (2) whether the purpose of the law is to regulate conduct or allocate loss." Padula v Lilarn Properties Corp., 84 NY2d 519, 521 (1994) (internal citations and quotations omitted). "If conflicting conduct-regulating laws are at issue, the law of the

jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders." Id. at 522. In regard to loss allocation, if "the parties to the lawsuit share a common domicile, the loss allocation rule of the common domicile will apply." Id.

It is undisputed that the Plaintiffs are domiciled in New Hampshire, Watts Water Technologies, Inc. is a Delaware corporation with its principal place of business in Massachusetts, and that Watts Regulator Co. is a Massachusetts corporation with its principal place of business in Massachusetts. Thus, the parties do not share a common domicile. Plaintiffs contend that "Mr. Unger was exposed to asbestos from Watts valves in both New York and New Hampshire, and thus he suffered `injury' under clear New York law in both jurisdictions." Affirmation In Opposition To Defendants Watts Regulator Co. And Watts Water Technologies, Inc.'s Joint Motion To Apply New Hampshire Law, p. 2-3, ¶ 6 (internal emphasis omitted). The Court opines that there are significant contacts between Plaintiffs and The Watts Defendants in both New York and New Hampshire, as Plaintiff was allegedly exposed to asbestos on both Governor's Island, New York, and in Nashua, New Hampshire by The Watts Defendants' valves.

In the instant matter, the laws at issue are conduct regulating rules rather than loss allocating rules. "Conduct-regulating rules have the prophylactic effect of governing conduct to prevent injuries from occurring." Padula v Lilarn Properties Corp., 84 NY2d at 522. In contrast, "Moss allocating rules ... are those which prohibit, assign, or limit liability after the tort occurs, such as charitable immunity statutes, guest statutes, wrongful death statutes, vicarious liability statutes, and contribution rules." Id. (internal citations omitted). Here, this is a negligence action where the plaintiff was allegedly injured through the exposure of asbestos. The purpose of such asbestos laws are not to allocate loss after the tort occurs. Therefore, "the law of the jurisdiction where the tort occurred will generally apply". Id. at 521.

The Watts Defendants contend that "[i]n asbestos cases, where the alleged exposure may take place over many years and in multiple locations, the place of injury is defined as the jurisdiction in which the defendant fell ill." Memorandum Of Law In Support Of Defendant Watts Water Technologies, Inc. And Watts Regulator Co.'s Motion To Apply New Hampshire Law, p. 4. (internal citations omitted). The Watts Defendants further argue, "it was [in New Hampshire] that plaintiff became ill ... which supplied the final element of a negligence or strict liability action entitling plaintiff to sue." Id. (internal quotations omitted). However, Plaintiffs correctly rely upon Elmaliach v Bank of China Ltd., 110 AD3d 192, 203 (1st Dept. 2013), which states that "[w]here a defendant's negligent conduct occurs in one jurisdiction and the plaintiff suffers injuries in another, the place of the wrong is considered to be the place where the last event necessary to make the actor liable occurred, that is, where the plaintiffs' injuries occurred" (internal quotations omitted). Namely, Plaintiffs contend that "it was not necessary for Mr. Unger to have any exposure to Watts valves in New Hampshire for Defendants to be liable to him." Affirmation In Opposition, supra, at p. 9, ¶ 24. Here, the last event necessary to incur liability from the Watts Defendants was not when Plaintiff was in fact diagnosed with mesothelioma, but when the Plaintiff was allegedly first exposed to asbestos through Watts products. Mr. Unger's place of diagnosis is inconsequential compared to where the asbestos first infiltrated his body, which was in New York. Under a conduct regulating interest analysis, the most appropriate jurisdiction to apply its law is New York. Thus, the Watts Defendant's motion is denied.

Accordingly, it is

ORDERED that the Watts Defendants' motion to apply New Hampshire law is denied in its entirety.

ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon defendant 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