Whelan v. Armstrong Int'l Inc.

455 N.J.Super. 569

190 A.3d 1090

Arthur G. WHELAN, Plaintiff-Appellant,

v. ARMSTRONG INTERNATIONAL INC.; Burnham LLC; Carrier Corp., individually, d/b/a and as successor to Bryant Heating & Cooling Systems; Cleaver-Brooks Inc.; Crown Boiler Co., f/k/a Crown Industries Inc.; Ford Motor Co.; Johnson Controls Inc., individually, d/b/a and as successor to Evcon Industries Inc. and Coleman Heating and Air Conditioning Products Inc. ; Nibco Inc.; and Oakfabco Inc., individually, d/b/a and as successor to Kewanee Boiler Corp. ; Defendants-Respondents,andA. O. Smith Corp.; Aaron & Co.; AMG Industries Inc., d/b/a and as successor to Akron Metallic Gasket Co.; Automatic Switch Co.; Automotive Brake Co.; A.W. Chesterton Co.; BASF Corp.; Bergen Industrial Supply Co. ; Bethlehem Dynatherm, a/k/a Dynatherm Boiler Manufacturing Inc.; Binsky & Snyder LLC, individually, d/b/a and as successor to Binsky & Snyder Co.; Bonland Industries Inc.; Borgwarner Morse Tec Inc., as successor to Borg-Warner Corp.; Briggs Industries Inc.; Carlisle Companies Inc.; CBS Corp., f/k/a Viacom Inc., successor by merger to CBS Corp., f/k/a Westinghouse Electric Corp.; Central Brass Co. Inc., individually, d/b/a and as successor to Central Brass Manufacturing Co. and Central Brass & Fixture Co.; Central Engineering & Supply Co. Inc. ; Chicago Faucet Co.; Chicago-Wilcox Manufacturing Co. Inc.; Colfax Inc., individually and as successor to Warner Electric Brake & Clutch Co.; Crane Co.; Crosstown Plumbing Supply Inc. ; Dana Companies LLC ; DAP Inc.; Ductmate Industries Inc.; Dunham-Bush Inc.; Dunphey & Associates Supply Co. Inc.; Duro Dyne Corp.; ECR International Inc., individually, d/b/a and as successor to Utica Boilers Inc., Utica Radiator Corp., Dunkirk Boilers, Pennco Inc., and Olsen Technology Inc.; Essex Plumbing Supply Inc. ; Fisher Scientific International Inc.; Fortune Brands Home & Security Inc., individually, d/b/a and as successor to Moen Inc.; Foster Wheeler LLC; General Electric Co.; Georgia-Pacific LLC; the Goodyear Tire & Rubber Co.; Goulds Pumps Inc.; Graco Inc.; Grundfos Pumps Corp.; H.B. Smith Co. Inc.; Hilco Inc., individually and as successor to Universal Supply Group Inc. and Amber Supply Co.; Honeywell International Inc., f/k/a Honeywell Inc., Allied Signal Inc. and Bendix Corp.; Interline Brands Inc., individually, d/b/a and as successor to J.A. Sexauer Inc.; International Business Machines Corp.; ITT Corp.; Kaiser Gypsum Co. Inc. ; Kantor Supply Inc.; Kohler Co., individually, d/b/a and as successor to Sterling Faucet Co. ; Lennox Industries Inc., individually, d/b/a and as successor to Armstrong Furnace Co. ; Magnatrol Valve Corp.; Manhattan Welding Co. Inc.; Maremont Corp.; Meritor Inc., individually and as successor to Rockwell International Corp.; Mestek Inc., individually, d/b/a and as successor to H.B. Smith Co., Smith Cast Iron Boilers and Mills Boilers; Mueller Industries Inc.; National Automotive Parts Association Inc.; New Jersey Boiler Repair Co. ; NCH Corp., as successor to Creed Co. and Daniel P. Creed Co. Inc.; NMBFIL Inc., f/k/a Bondo Corp.; Owens-Illinois Inc.; Peerless Industries Inc.; Pneumo-Abex LLC, individually and as successor to Abex Corp.; Price Pfister Inc.; The Prudential Insurance Co. of America; Rheem Manufacturing Co.; Riley Power Inc., f/k/a Riley-Stoker Corp.; Robertshaw Controls Co., individually and as successor to Fulton Sylphon Co.; Sid Harvey Industries Inc.; Slant/fin Corp.; Sloan Valve Co.; SOS Products Co. Inc.; Speakman Co.; Superior Boiler Works Inc.; Sur-Seal Corp. ; Taco Inc.; Trane U.S. Inc., individually and as successor to American Standard Inc. and American Radiator Co. ; Turner Construction Co.; Unilever United States Inc.; Uniroyal Holding Inc.; Verizon New Jersey Inc., individually and as successor to New Jersey Bell Telephone Co.; Victaulic Co.; Wallwork Bros. Inc.; Wal-Rich Corp.; Weil-McLain, a division of the Marley-Wylain Co., a wholly-owned subsidiary of the Marley Co. LLC; W.V. Egbert & Co. Inc.; York International Corp.; Zurn Industries LLC, individually, d/b/a and as successor to Erie City Iron Works and Zurn Industries Inc.; AII Acquisition LLC, individually, as successor to, f/k/a, and d/b/a Holland Furnace Co., Athlone Industries Inc., T.F.C. Holding Corp. and Thatcher Furnace Co.; American Premier Underwriters, individually and as successor to Hydrotherm Corp. ; August Arace & Sons Inc.; Honeywell Inc.; Rockwell Automation Inc., individually, d/b/a and as successor to Sterling Faucet Co. ; Rockwell Collins Inc., individually, d/b/a and as successor to Sterling Faucet Co. ; Trimas Corp., individually, d/b/a and as successor to NI Industries Inc.; Wilmar Industries Inc., individually, d/b/a and as successor to J.A. Sexauer Inc.; BASF Catalysts LLC; Trimas Corp., individually and as successor in interest to Norris Industries and/or NI Industries Inc.; York International Corp., individually and as successor to The Coleman Company Inc., a/k/a Coleman Heating and Air Conditioning Products Inc., Defendants.

DOCKET NO. A-3520-13T4

Superior Court of New Jersey, Appellate Division.

Argued May 2, 2016

Reargued May 16, 2018

Decided August 6, 2018

Kevin P. Parker (The Lanier Law Firm, PLLC) of the Texas bar, admitted pro hac vice, argued the cause on May 2, 2016 and May 16, 2018, and Rachel A. Placitella, Red Bank, argued the cause on May 16, 2018, for appellant (Cohen, Placitella & Roth, PC, attorneys; Rachel A. Placitella, Nahid A. Shaikh, and Darron E. Berquist (The Lanier Law Firm, PLLC) of the New York bar, admitted pro hac vice, on the briefs).

Thomas J. Kelly, Jr., Union, argued the cause for respondent Armstrong International, Inc. (Vasios, Kelly & Strollo, PA, attorneys; Thomas J. Kelly, Jr., Union, of counsel and on the brief; Linda Fulop-Slaughter, on the brief).

Joseph D. Rasnek, Morristown, argued the cause for respondent Burnham, LLC (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Nancy McDonald, Morristown, of counsel and on the brief; Christopher B. Bladel, Newark, on the brief).

Sara K. Saltsman argued the cause for respondent Carrier Corporation (Mayfield, Turner, O'Mara & Donnelly, P.C., attorneys; Sara K. Saltsman, on the brief).

Karen J. Stanzione-Conte argued the cause for respondents Cleaver-Brooks, Inc. and Crown Boiler, Company (Reilly, Janiczek & McDevitt, attorneys; Karen J. Stanzione-Conte, Michelle B. Cappuccio and Colleen B. Cavanaugh, on the briefs).

Robyn Gnudi Kalocsay, Newark, argued the cause on May 2, 2016, and Sean M. Marotta argued the cause on May 16, 2018, for respondent Ford Motor Company (LeClair Ryan, attorneys; Robin Gnudi Kalocsay, Newark, and Michael D. Goldklang, on the brief).

Marc S. Gaffrey, New Brunswick, argued the cause on May 2, 2016, and Jacob S. Grouser, New Brunswick, argued the cause on May 16, 2018, for respondent Johnson Controls, Inc. (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Marc S. Gaffrey, of counsel and on the brief; Anita S. Cohen, New Brunswick, on the brief).

Robert T. Connor argued the cause on May 2, 2016, and Stephanie A. DiVita, Manasquan, argued the cause on May 16, 2018, for respondent NIBCO, Inc. (Pascarella DiVita, PLLP attorneys; Robert T. Connor, of counsel and on the brief; Angela Coll Caliendo, on the brief).

Hawkins Parnell Thackston & Young LLP, attorneys for respondent Oakfabco, Inc. (Roy F. Viola, Jr., and Deena M. Crimaldi on the brief).

Argued May 2, 2016 before Judges Accurso, O'Connor, and Suter.

Reargued May 16, 2018 before Judges Alvarez, Nugent, and Currier.

The opinion of the court was delivered by

CURRIER, J.A.D.

In this products liability case arising out of exposure to asbestos, we consider anew whether a manufacturer has a duty to warn about the risk of harm from exposure to asbestos-containing replacement parts integral to the function of the manufacturer's product, even if the manufacturer did not fabricate or distribute the replacement parts. We conclude that a duty to warn exists when the manufacturer's product contains asbestos components, which are integral to the function of the product, and the manufacturer is aware that routine periodic maintenance of its product will require the replacement of those components with other asbestos-containing parts.

Plaintiff Arthur Whelan contends he developed mesothelioma as the result of his work-related exposure to numerous asbestos-containing products. Plaintiff asserts, as a plumber and auto mechanic, he was exposed to asbestos in products manufactured by defendants,¹ specifically boilers, valves, steam traps, and brake drums. Although plaintiff installed and worked with some original products manufactured by some defendants, he primarily encountered asbestos in his cleaning, repair, and replacement of components used in the products.

Defendants Armstrong International Inc., Burnham LLC, Carrier Corp., Cleaver-Brooks Inc., Crown Boiler Co., Ford Motor Co., Johnson Controls Inc., NIBCO Inc., and Oakfabco Inc. filed summary judgment motions. Each defendant argued plaintiff had not demonstrated exposure to friable asbestos on a regular and frequent basis from a product it sold, manufactured, supplied, or distributed. The trial judge found defendants were not liable for asbestos-containing replacement parts they did not manufacture or place into the stream of commerce. Because plaintiff could not identify an exposure to asbestos from a product actually manufactured or distributed by defendants, the court granted summary judgment to each defendant.

In light of our determination that a manufacturer's product includes any replacement parts necessary to its function, defendants' duty to warn extends to any danger created by those replacement parts. A careful review of the record reveals plaintiff presented sufficient evidence detailing his exposure to asbestos, either from original parts supplied by defendants or replacement parts required for the function of defendants' products, to create issues of fact as to all defendants. We,...