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BARLIEB v. TURNER & NEWALL

November 26, 1980

James H. BARLIEB & Millie Barlieb, h/w
v.
TURNER & NEWALL, LTD., et al.; John McFADDEN & Elizabeth McFadden v. TURNER & NEWALL, LTD., et al. Emilio E. CARDAMONE & Antoinette Cardamone, h/w v. TURNER & NEWALL, LTD., et al.; Anthony GIRADI & Lucy Marie Giradi, h/w v. TURNER & NEWALL, LTD., et al.; Victoria C. AMENTO, Administratrix of the Estate of Joseph Amento, Deceased v. TURNER & NEWALL, LTD., et al.; Louis GRABOWSKI & Helen Grabowski h/w v. TURNER & NEWALL, LTD., et al.; Albert SAYLOR, et al. v. TURNER & NEWALL, LTD. Margo Maggie L. GRAVATT, Adm. of the Estate of Clifford Henry Gravatt, Jr., Deceased v. JOHNS-MANVILLE CORP., et al.; Modesta C. MARINCOLA, Adm. of the Estate of Paul G. Marincola, Deceased v. JOHNS-MANVILLE CORP., et al.



The opinion of the court was delivered by: NEWCOMER

 NEWCOMER, District Judge.

 These cases have been consolidated for purposes of ruling on motions made by defendant United States, to dismiss or, in the alternative, to sever. *fn1"

 Defendant United States moves, pursuant to Fed.R.Civ.P. 12(b)(1) and (6), for dismissal of cross-claims against it asserted by defendants who allegedly supplied asbestos to an asbestos cement pipe manufacturing plant in Ambler, Pennsylvania. Defendant asserts that this Court lacks subject matter jurisdiction, and that the cross claims fail to state claims upon which relief can be granted under Pennsylvania law.

 Defendant United States was initially involved in these actions by virtue of plaintiffs' amended complaint, which asserts in Counts VI and VII that the Department of Health, Education and Welfare, as it was then known, and the Public Health Service negligently caused injury to asbestos workers by failing to warn them of the dangers inherent in their work after those dangers were or should have been known and discovered. Plaintiffs allege that the Department of Labor was negligent in not warning plaintiffs about the existing dangers, and in not enforcing the Walsh-Healy and Occupational Safety and Health Acts. Plaintiffs further allege that the Department of the Navy was negligent when it contracted with plaintiffs' employers to do work, which it knew or should have known was dangerous, and failed to warn plaintiffs. Finally, plaintiffs assert against the United States as a supplier of asbestos the same claims they assert against the corporate suppliers of asbestos: that defendants were negligent in failing to test or properly package their products; that defendants were negligent in failing to warn plaintiffs; that defendants breached and implied warranty of merchantibility; that defendants' products were unreasonably dangerous and unsafe for their intended use; and that defendants conspired fraudulently to misrepresent the nature and the extent of the harm caused by exposure to asbestos. The corporate defendants filed cross-claims against the United States for contribution and indemnity.

 Plaintiffs have joined the United States in the pending motions, representing that they will dismiss without prejudice their claims against the United States if the Court should decide to dismiss or sever the cross claims. The Court is therefore in the peculiar position of considering argument by defendants, opposed by the additional defendant, that the Court has jurisdiction to hear plaintiffs' claims. Clearly, if the Court has jurisdiction over any of plaintiffs' claims, wherein defendants and additional defendants may be joint tort feasors, then it has jurisdiction over defendants' cross-claims against the United States for contribution.

 A. Jurisdiction

 1. The Government as a Supplier of Asbestos

 The United States argues that its activities do not fall within the exception to sovereign immunity marked out by the Federal Tort Claims Act. Rather, this Court is urged to find that the actions of the United States fall within an exception to that exception, the "discretionary function" protection retained by the United States under 28 U.S.C. § 2680.

 Because plaintiffs' claims against the United States, and derivatively, defendants' cross-claims are based on tort theories analysis must focus on the scope of the sovereign immunity of the United States. The United States, argue defendants, is liable because it has shed its sovereign immunity for these kinds of tort claims.

 The Federal Tort Claims Act states in relevant part, the "United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. That provision is narrowed by subsequent language which states in relevant part that "the provisions of this chapter . . . shall not apply to -- (a) any claim . . . [2] based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680.

 As stated above, counts I, II, and III of plaintiffs' amended complaint (incorporated by reference in paragraph 22 of Count VI against the United States) allege that defendants sold asbestos to which plaintiffs were negligently exposed, in breach of implied warranties, and in violation of a "strict duty" imposed upon defendants as "producers, manufacturers, and commercial sellers" of asbestos.

 The United States admits that in October, 1969, it sold "15 short tons" of crocidolite asbestos fiber to plaintiffs' employer. The United States has presented the Court with a detailed and thoroughly documented history of this sale, including the enabling statutes and orders: the Strategic and Critical Materials Stockpiling Act, 50 U.S.C. §§ 98 et seq., the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 471 et seq., Reorganization Plan No. 1 of 1958, 23 F.R. 4991, 72 Stat. 1799, Executive Order No. 11051 (1962) reprinted in 50 App. U.S.C. § 2271. With regard to the sale of asbestos, in 1966, by Public Law 89-463, Congress authorized the Administrator of the General Services Administration to dispose of approximately 45,992 short tons of crocidolite asbestos held in stockpiles previously authorized by the statutes cited above. There seems to be no question that the sale of asbestos to plaintiffs' employer was authorized.

 The sale to Certain-Teed, plaintiffs' employer was typical. On October 15, 1969 a contract was executed for the sale of fifteen short tons of crocidolite asbestos to Certain-Teed. The written agreement stated "This is an 'as-is' sale," and the appended "General Terms and Conditions for the Sale of Strategic and Critical Materials" contained the following:

 
Condition of Material. Unless otherwise specifically stated in the invitation, all material therein is offered "as is". The description of the material is based on the best information available to the Government. However, the Government makes no warranty, express or implied, as to the quantity, kind, character, quality, ...

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