filed: September 1, 1988.
KATHRYN GUIDRY, EXECUTRIX OF THE ESTATE OF GILBERT GUIDRY, DECEASED, AND KATHRYN GUIDRY, WIDOW IN HER OWN RIGHT, APPELLEE,
JOHNS-MANVILLE CORPORATION, JOHNS-MANVILLE SALE CORPORATION, RAYBESTOS MANHATTAN, INC., FORTY-EIGHT INSULATION, INC., PITTSBURGH CORNING CORPORATION, GAF CORPORATION, ARMSTRONG CORK, COMPANY, UNARCO INDUSTRIES, INC., H.K. PORTER COMPANY, INC., SOUTHERN ASBESTOS COMPANY, EAGLE-PICHER INDUSTRIES, INC., KEENE CORPORATION, TURNER NEWALL, LTD., KEASBEY MATTISON COMPANY, CERTAIN-TEED PRODUCTS CORPORATION, U.S. RUBBER CO., INC., PACOR, INC., CELOTEX CORPORATION, PHILIP CAREY MANUFACTURING CO., AMATEX CORPORATION, OWENS-CORNING FIBERGLAS CO., INC., ASBESTOS TEXTILE INSTITUTE, INC., UNIROYAL, INC., CAROLINA ASBESTOS COMPANY, ASBESTOS TEXTILE COMPANY, THERMOID COMPANY, ASTEN HILL MANUFACTURING CO., RUBEROID COMPANY, INC., GARLOCK, INC. -- PRECISION SEAL DIVISION. APPEAL OF GAF CORPORATION
Appeal from the Order entered on January 14, 1986, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 5644 (144) May Term, 1979.
Stuart J. Agins, Philadelphia, for appellant.
Howell K. Rosenberg, Philadelphia, for Guidry, appellee.
Brosky, Beck and Cercone, JJ.
[ 377 Pa. Super. Page 310]
This is an appeal from an order of the Court of Common Pleas for Philadelphia County granting plaintiffs' Motion for New Trial as to damages only.
This action was commenced in 1979. Plaintiffs were Gilbert Guidry and his wife, Kathryn. For a number of years Mr. Guidry had been employed at job sites, including the Philadelphia Naval Shipyard, where he had been exposed to asbestos. He also had a long history of smoking. At the time of suit, Mr. Guidry had not been diagnosed as suffering from lung cancer. However, in 1980, this diagnosis was made and six months later, Mr. Guidry died. He was then 50 years old. Mrs. Guidry was substituted as a plaintiff, suing as executrix of her husband's estate. The complaint alleged negligence and strict liability. It named thirty-seven defendants, all allegedly responsible for Mr. Guidry's asbestos-related injuries. Of these thirty-seven, thirty had settled prior to trial. Six others were dismissed from the suit for various reasons not relevant here.
Thus, at the time of trial, only appellant GAF remained as a non-settled defendant. The trial court ordered the trial of GAF's cross-claims against the settled defendants severed from the trial of plaintiffs' action against GAF. A jury trial resulted in a verdict for plaintiffs and an award of $185,000 to Mrs. Guidry as executrix and $10,000 in her own right.
Plaintiff filed a Motion for New Trial as to Damages Only, alleging that the damages award was inadequate. GAF filed Cross Post Trial Motions consisting of a Motion to Mould the Verdict, Motion for Judgment N.O.V., and Motion for New Trial on Liability. In the Motion to Mould the Verdict, GAF asserted that since plaintiff admittedly had already received settlement payments from the settled defendants in an amount exceeding the amount of the verdict, GAF had no liability to plaintiff and the verdict should be molded and marked satisfied to indicate this fact. In the Motions for Judgment N.O.V. and New Trial as to Liability, GAF alleged a variety of trial errors, including errors in the court's charge and evidentiary rulings.
[ 377 Pa. Super. Page 311]
In the preface to these motions, GAF described its position as follows:
Defendant GAF Corporation requests that the Court dismiss and deny any and all requests made in the Plaintiff's Post Trial Motions. In addition to disputing plaintiff's assignments of error, defendant asserts that the issues of liability and damages are so interwoven that a new trial as to damages only would constitute a complete denial of justice. Further, Defendant GAF moves that the Court consider Defendant GAF's Cross Post Trial Motions re: Motion to Mould the Verdict to reflect settlements reached with joint tortfeasors. In the event the Court denies Plaintiff's Post Trial Motions, Defendant's Motions for Judgment N.O.V. and New Trial should be disregarded and only GAF's Motion to Mould the Verdict should be considered. However, without waiver of this position, and only if the Court intends to grant Plaintiff a new trial as to damages, GAF Corporation moves that the Court consider Defendant GAF Corporation's Cross Post Trial Motions re: Judgment N.O.V. and New Trial as to Liability.
In the prayer for relief at the end of GAF's Cross Post Trial Motions, this position was ...
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