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CASTILLO PERDOMO v. ROGER CONSTR. CO.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


August 5, 1976

Ana Luisa CASTILLO Vda PERDOMO, and Isabel Castillo Bello, Administratrices, Inheritors and Surviving next of kin of the Estates of Dr. Romulo Terrero, Deceased and Hilda Castillo Vda Terrero, Deceased and Edward R. Murphy, Administrator of the Estates of Dr. Romulo Terrero, Deceased and Hilda Castillo Vda Terrero, Deceased
v.
ROGER CONSTRUCTION COMPANY et al. Romelia Aldrey DeSANZ, Administratrix of the Estates of Iris Romelia O'Brien DeTerrero, Romulo Antonio Terrero O'Brien and Iris Margarita Terrero O'Brien, Deceased, and Romelia Aldrey DeSanz, in her capacity as sole inheritor and surviving next of kin of Iris Romelia O'Brien DeTerrero, Romulo Antonio Terrero O'Brien and Iris Margarita O'Brien, Deceased v. ROGER CONSTRUCTION COMPANY et al.

The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 I. Preliminary Statement

 This case raises an important question of construction of the Uniform Contribution Among Joint Tortfeasors Act ("Act"), *fn1" apparently one of first impression. Succinctly stated, the question is whether an alleged joint tortfeasor who is the first to settle with the plaintiff and takes in return a joint tortfeasors release *fn2" is entitled to contribution by way of crossclaim from the other alleged joint tortfeasors who subsequently have separately settled with the plaintiff in return for general releases, in the context where the plaintiff has ultimately settled with all parties against whom the plaintiff has asserted a claim. In that context, no judicial determination of liability or damages, has been or will be made, save only that which would result from a trial on the crossclaim. While we find the answer to the question to be "no" on both statutory and policy grounds, there is a dearth of case law construing the UCAJT Act; hence this opinion.

 The case results from an awesome tragedy. On August 1, 1970, Dr. Romulo Terrero, a Venezuelan national, physician, and fellow in pediatric neurology at Jefferson Medical College in Philadelphia, was residing at the Manoa Park Apartments in Haverford Township, Pennsylvania, with his wife, Iris, his children, Romulo Terrero, Jr., and Iris Margarita Terrero, and his mother, Hilda Castillo vda Terrero. On that morning all five Terreros died as the result of inhalation of carbon monoxide fumes emitted from a propane gas generator and an exhaust pipe connection located in Building "E" of the apartment complex, the building in which they resided. The circumstances which allegedly gave rise to liability on the part of the various tortfeasors may be summarized as follows.

 On the previous evening, July 31, 1970, an electrical storm occurred in the apartment area, causing a power failure. The failure of power in the apartment complex activated the apartment's emergency generator system. However, when power was restored to the area, the emergency generator system did not shut off as it was designed to do; rather, it continued to operate for another twelve hours until its propane gas supply was exhausted. The continued operation of the emergency generator system produced carbon monoxide fumes, which were supposed to be vented from the building. However, because the generator room was not adequately vented and because the exhaust pipe was covered with earth, the fumes discharged from the exhaust system accumulated in the generator room and seeped into the Terrero apartment, located above, causing the death of the entire Terrero family while they slept.

 The administrators of the estates of the decedents brought suit against: (1) Mrs. Edith Friedman, the owner of the Manoa Park Apartments and a principal of Roger Construction Company, the builder of the apartments; (2) Roger Construction Company; (3) David Friedman (Edith Friedman's husband), another principal in Roger Construction Company; and (4) Edward Fernberger, construction superintendent for the building of the apartment (the aforementioned defendants will be hereinafter referred to as the "Friedman interests"). *fn3" Plaintiffs also sued: (5) Anthony S. Bohem, an electrical contractor who installed the allegedly malfunctioning emergency generator system and who did general maintenance around the premises during the construction; (6) Louis D'Anjollel, a plumbing and heating contractor who installed the allegedly defective and improperly covered piping; (7) Main Line Construction Company, Inc., which performed the grading and filling on the building site and was alleged to have been involved in covering the exhaust pipe; (8) Zenith Automatic Controls, Inc., which provided the automatic generator shut off switch which allegedly malfunctioned; (9) Maris Equipment Company and (10) Rose Electric Company, suppliers of the Zenith switch and the generator. A third party complaint was filed by various defendants against Kohler Company, the manufacturer of the generator. Plaintiffs' theories of liability, generally speaking, were that the apartment complex was negligently constructed and maintained, and that the generator system, or component parts of it, were defective and unreasonably dangerous.

 In June 1974, after the initial pleadings were closed and extensive discovery completed, the Friedman interests reached a settlement with the plaintiffs which was finalized by the execution of a joint tortfeasors release. This document provided for the discharge of all claims against the Friedman interests arising out of the August 1, 1970, accident, in exchange for the payment of $500,000. The release provided, inter alia :

 

In the event that it is determined that other persons, firms or corporations were tortfeasors or guilty of liability producing conduct with respect to the deaths of plaintiffs' decedents, the execution of this release shall operate as a satisfaction of the claims of plaintiffs against such other persons, firms or corporations to the extent of the relative pro rata share of common liability of the persons herein released ; . . . (emphasis added).

 

The parties herein released reserve the right to seek contribution from any and/or all other persons, firms and corporations who may have been negligent or guilty of liability producing conduct to the extent that the payment herein exceeds the pro rata share of liability of said persons herein released.

 The Friedman interests had theretofore filed a crossclaim for contribution and/or indemnity against the remaining defendants. (The Friedmans are sometimes hereinafter referred to as "crossclaimants.")

 At the time this settlement was negotiated and completed, counsel for the other defendants were unable to come to terms with the plaintiffs. Thereafter, in October 1974, and following three days of marathon settlement negotiations conducted in our chambers, we were able to negotiate a settlement among the plaintiffs and the remaining defendants, which was finalized by the execution of a general release. This release included the Friedman interests who by then were crossclaimants; however, counsel for the Friedman interests did not participate in the negotiations for this release. The consideration for the general release was $760,000.00, of which $500,000.00 was the amount previously paid by the Friedman interests. The actual breakdown of the individual amounts paid as consideration for the two releases is: Friedman interests $500,000.00 Zenith Automatic Controls 100,000.00 Main Line Construction 20,000.00 Rose Electric 5,000.00 Maris Equipment 5,000.00 Kohler Co. 27,500.00 D'Anjollel 20,000.00 Bohem 82,500.00 TOTAL $760,000.00

19760805

© 1992-2004 VersusLaw Inc.



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