Foster Wheeler USA Corp. v. Owens-Illinois, Inc.

595 So. 2d 439, 1992 WL 35394
CourtSupreme Court of Alabama
DecidedFebruary 28, 1992
Docket1901623, 1901624, 1901625, 1901626 and 1901627
StatusPublished
Cited by1 cases

This text of 595 So. 2d 439 (Foster Wheeler USA Corp. v. Owens-Illinois, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster Wheeler USA Corp. v. Owens-Illinois, Inc., 595 So. 2d 439, 1992 WL 35394 (Ala. 1992).

Opinion

ADAMS, Justice.

These appeals arise out of the claims of seamen against their former employers (the owners and operators of ships on which they served) and various manufacturers, alleging injuries from exposure to asbestos products while aboard these ships. The facts and procedural background of this litigation are thoroughly set out in Sheffield v. Owens-Corning Fiberglass Corp., 595 So.2d 443 (Ala.1992), which involved the claims of William Shaw, Henry Sheffield, and John Young (“plaintiffs”) against 18 companies that owned or operated the ships (“shipowners”) on which the plaintiffs served and the third-party claims of the shipowners for indemnity or contribution against Owens-Corning Fiberglass Corporation (“OCF”) and John Crane, Inc., manufacturers of asbestos products to which the plaintiffs were allegedly exposed while aboard the shipowners’ vessels.

The present case involves the third-party claims of the same group of shipowners for indemnity or contribution against Owens-Illinois, Inc. (“Owens”), and Keene Corporation, manufacturers of asbestos products to which the same three Sheffield plaintiffs were allegedly exposed while aboard their respective vessels. This case also involves cross-claims of third-party defendant Foster Wheeler (“FW”) against Owens and Keene for indemnity or contribution as a result of the alleged exposure of two of the plaintiffs, Sheffield and Young, to boilers manufactured by FW, some of which allegedly incorporated the asbestos products of Owens and Keene.

On February 14,1991, Sheffield executed “Pro Tanto Release and Indemnity Agreements,” which, on the basis of a sum paid in settlement, purportedly released Owens, Keene, and their respective predecessors and successors from liability as a result of Sheffield’s alleged exposure to the asbestos products of Owens and Keene.1 On February 14, 1991, Owens and Keene moved for summary judgment as to “each cross-complaint, third-party complaint, [and] amended third-party complaint” for contribution or indemnity, on the basis of the settlement agreements. The trial court heard oral arguments on those motions during a hearing at which FW was represented. On March 11, 1991, Owens and Keene moved for a summary judgment as to “the plaintiffs’ complaint,” on the ground that there was insufficient evidence of exposure of the plaintiffs to their asbestos products. On June 10, 1991, the trial judge granted the motions of Owens and Keene and dismissed all claims against [441]*441those defendants. The judgment was certified as final, pursuant to Ala.R.Civ.P. 54(b).

A. Owens

In Sheffield, this Court affirmed a summary judgment in favor of OCF against Sheffield, Young, and the shipowners on the ground that those parties had failed to produce evidence of exposure of Sheffield or Young to a product manufactured by OCF. However, we reversed the judgment of the trial court as to the claims of Shaw and the shipowners based on Shaw’s alleged exposure. Applying maritime law, we held that the parties had produced evidence of Shaw’s exposure to “Kaylo,” an asbestos insulation product manufactured by OCF, the successor to Owens’s right to manufacture Kaylo, sufficient to preclude summary judgment.

Sheffield controls the outcome of this case as it relates to the claims based on alleged exposure of the three plaintiffs to Owens’s products. Consequently, on the authority of Sheffield, the judgment in favor of Owens is reversed as to the claims based on the exposure of Shaw. As to the claims based on the alleged exposures of Sheffield and Young, the judgment is affirmed.

B. Keene

The evidence presented by the shipowners purporting to identify a Keene product to which Shaw may have been exposed, and that presented by the shipowners and FW in an effort to identify a Keene product to which Sheffield and Young may have been exposed is, for the reasons we detailed in Sheffield, insufficient to satisfy the threshold requirement of product identification. The evidence produced by the shipowners and FW is based on Qualified Product Lists and testimony that certain products were used or ordered for use in shipyards at which certain vessels were built. As we pointed out in Sheffield, such evidence cannot, by itself, create an inference that a specific manufacturer’s product was, more probably than not, on board a ship on which one of the plaintiffs served.

FW, for example, produced the deposition testimony of Albert Rost, who stated that “pipe covering and block” insulation material manufactured by Baldwin-Ehret-Hill (“BEH”), a company allegedly purchased by Keene, was in use at the shipyard at which the Ticonderoga, a tanker on which Sheffield served, was constructed. Although Rost testified that BEH supplied more pipe covering and block than any other company, he also testified that Owens and Keasby Mattison were supplying comparable materials at that time. Deposition of Albert Rost, at 23.

His testimony fails to show that it was more probable than not that BEH insulation material was installed on the Ticonderoga. Hypothetically, if the percentages of insulation supplied bj$BEH, Owens, and Keasby and Mattison amounted to 50%, 25%, and 25% respectively, the chances that BEH insulation was installed on the Ticonderoga would, at best, be 50-50. Under maritime law, evidence must create more than a “mere possibility” and more than an “evenly balanced” likelihood that a product was on board a vessel on which the plaintiff served. Sheffield, 595 So.2d at 451-52 (quoting Restatement (Second) of Torts § 433B, comment a (1965)).

FW contends that the judgment against its cross-claims, which arose out of the alleged exposure of Sheffield and Young to the products of Owens and Keene, must, nevertheless, be reversed because, FW insists, it was prejudiced by a lack of notice that its cross-claims were jeopardized by the second summary judgment motion filed on March 11, 1991. In other words, it contends that the March 11 motion, which expressly addressed only the plaintiffs’ claims, failed to apprise FW of the possibility of the consequent dismissal of its cross-claims. We disagree.

To be sure, the “entry of summary judgment by a trial court sua sponte, without giving to the party against whom such judgment is entered adequate and reasonable notice, as well as an opportunity to present evidence in opposition, is prejudicial error requiring reversal.” Hales v. [442]*442First Nat’l Bank of Mobile, 380 So.2d 797, 799 (Ala.1980). Under the facts of this case, however, FW’s contention that it was denied notice or an opportunity to present its own evidence is implausible. FW was not only apprised of, but actively opposed, the February 14 motions. Moreover, it knew or should have known, that the viability of its cross-claims against Owens and Keene for indemnity or contribution depended on a finding that Sheffield and Young were exposed to the products of those two manufacturers and that FW’s claims against Owens and Keene could be barred by the doctrine of collateral estop-pel in the event of an adverse finding on that issue. FW cannot now be heard to complain because the trial court, three months after the challenged motion was filed, determined &at the evidence presented by the plaintiffs and the shipowners of the plaintiffs’ exposure to the products of Owens and Keene was insufficient.

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Bluebook (online)
595 So. 2d 439, 1992 WL 35394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-wheeler-usa-corp-v-owens-illinois-inc-ala-1992.