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SEALOVER v. CANADA

May 7, 1992

ALMA M. SEALOVER, individually, and in her capacity as Administratrix of the Estate of Donald Sealover, deceased Plaintiffs
v.
CAREY CANADA, et al., Defendants


McClure, Jr.


The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

BACKGROUND

 Plaintiffs Alma M. Sealover and Donald E. Sealover filed this products liability action on April 29, 1988 against defendants W.R. Grace Company, ("W.R. Grace"), United States Gypsum Company ("US Gypsum"), GAF Corporation, National Gypsum Company ("National Gypsum"), Owens-Corning Fiberglas ("OCF"), and Johns-Manville Corporation ("Manville Trust"). *fn1" Subsequent to Donald Sealover's death on May 2, 1988, Alma Sealover, acting both individually and as administratrix of her husband's estate, filed an amended complaint alleging that as a result of Donald Sealover's exposure to asbestos during his sojourn in the Merchant Marines and during his forty-year career as a carpenter, he contracted mesothelioma, *fn2" asbestosis and other asbestos-related diseases which ultimately led to his death.

 The trial was bifurcated with the first phase on strict liability only. *fn3" The first phase of the trial concluded with the jury awarding compensatory damages of $ 400,000 to the estate and $ 210,000 to Alma Sealover, individually. Both verdicts were returned against all four non-settling defendants as well as the Manville Trust and OCF. *fn4" Plaintiffs contend that liability is joint and several and seek delay damages against all six. Defendants contest plaintiffs' calculation of delay damages and disagree with their contention that liability is joint and several. Defendants assert that the court should mold the verdict to reflect liability on the part of each non-settling defendant for its pro rata share of the verdict only. Under their argument, plaintiffs could collect no more than one-sixth of the total judgment (or $ 101,667.00 plus delay damages assessed on that amount only), from each defendant.

 Before the court are: (1) plaintiffs' motion (Record Document No. 220, filed July 22, 1991) for delay damages pursuant to Pennsylvania Rule of Civil Procedure 238; (2) plaintiffs' motion (Record Document No. 221, filed July 22, 1991) for entry of judgment and severance of plaintiffs' case against National Gypsum; (3) plaintiffs' motion (Record Document No. 232, filed September 11, 1991) for entry of judgment and severance of plaintiffs' case against GAF Corporation; (4) the CCR Defendants' motion (Record Document No. 242, filed December 5, 1991) to treat Johns-Manville as a settled defendant and mold the verdict accordingly; and (5) W.R. Grace's motion (Record Document No. 244, filed December 11, 1991) to mold the verdict and deduct the shares of the settling defendants.

 DISCUSSION

 
Plaintiffs' motions to sever the case against GAF Corporation and National Gypsum and enter judgment against those defendants

 Plaintiffs' motions for entry of judgment and severance of the case against GAF Corporation and National Gypsum were rendered moot by our order and memorandum disallowing plaintiffs' claim for punitive damages against defendants W.R. Grace and U.S. Gypsum. The basis for plaintiffs' motions was their decision to pursue claims for punitive damages against defendants W.R. Grace and U.S. Gypsum, and that basis no longer exists since the court has granted summary judgment in defendants' favor on those claims.

 Joint and several liability

 Defendants seek entry of a judgment apportioning liability among them pro rata. They argue that liability among them is not joint and several. As the parties seeking apportionment, defendants bear the burden of proving that it applies. Martin v. Owens-Corning Fiberglas, 515 Pa. 377, 528 A.2d 947 (1987).

 Under Pennsylvania law, *fn5" apportionment is appropriate only if the injured party suffers distinct harms or if the court is able to "identify 'a reasonable basis for determining the contribution of each cause to a single harm.'" Martin, supra, 528 A.2d at 949, quoting Restatement (Second) of Torts, § 433A(1) (1965). *fn6" Accord: Glomb v. Glomb, 366 Pa. Super. 206, 530 A.2d 1362, 1365 (1987), alloc. denied, 517 Pa. 623, 538 A.2d 876 (1988). On the other hand, liability is joint and several if the actors' conduct caused "a single harm which cannot be apportioned . . . even though [the actors] may have acted independently." Rabatin v. Columbus Lines, Inc., 790 F.2d 22, 24 (3d Cir. 1986), quoting Capone v. Donovan, 332 Pa. Super. 185, 189, 480 A.2d 1249, 1251 (1984).

 Determining which applies depends on the particular facts of the case. In Voyles v. Corwin, 295 Pa. Super. 126, 441 A.2d 381 (1982), the Pennsylvania Superior Court identified seven factors which, although not a "talismanic" test, may assist the court in making this determination. Glomb, supra, 530 A.2d at 1365. The seven are:

 
(1) the identity of a cause of action against each of two or more defendants;
 
(3) whether the same evidence will support an action against each;
 
(4) the single, indivisible nature of the injury to the plaintiffs;
 
(5) identity of the facts as to time, place or result;
 
(6) whether the injury is direct and immediate, rather than consequential[;]
 
(7) responsibility of the defendants for the same injuria as distinguished from damnum.

 Voyles, supra, 441 A.2d at 383, quoting Prosser, Law of Torts § 46 n. 2 (4th ed. 1971) (footnotes omitted).

 Here, liability among the defendants is unquestionably joint and several. Their conduct combined to cause a single, indivisible harm, Donald Sealover's mesothelioma and, ultimately, his death. As the commentary to Restatement (Second) of Torts, § 433 A, aptly notes:

 
Certain kinds of harm, by their very nature, are normally incapable of any logical, reasonable, or practical division. Death is that kind of harm, since it is impossible, except upon a purely arbitrary basis for the purpose of accomplishing the result, to say that one man has caused half of it and another the rest. . . . Where two or more causes combine to produce such a single result, incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, the courts have refused to make an arbitrary apportionment for its own isake, and each of the causes is charged with responsibility for the entire harm.

 Restatement(Second) of Torts, § 433 A, comment (i) to subsection (2).

 There is no way of determining which defendant's products caused Donald Sealover's mesothelioma. Mesothelioma is not quantity specific and can be caused by even relatively minimal exposure to asbestos. Thus, even if Sealover's exposure to any one defendant's product was relatively minimal, that product could, nonetheless have been the causative agent. Apportioning plaintiffs' harm into divisible segments would be an impossible task, since there is no basis for assigning individual responsibility. See: Glomb, supra, 530 A.2d at 1367 and Martin, supra, 528 A.2d at 950 (Regarding plaintiff's conditions of emphysema caused by plaintiff's cigarette smoking, and asbestosis, caused by his exposure to asbestos, the court stated: "The causes of disability in this case do not lend themselves to separation by lay-persons on any reasonable basis.") Cf. Voyles, supra, (Liability could be apportioned because the conduct of one party added to or aggravated an injury caused previously by another party.).

 Additionally, each defendant breached the same duty owed to Donald Sealover: a duty to warn of the hazards of asbestos. Each defendant had an equal opportunity to prevent or lessen the impact of Sealover's asbestos exposure by warning him of the inherent danger of serious lung disease. See: Rabatin, supra, 790 F.2d at 26.

 Although defendants argue that it has been the practice of the Pennsylvania and federal courts to treat asbestos cases differently than other cases involving joint tortfeasors, we are not convinced that the cases they cite stand for the proposition they advance. *fn7" For example, defendants cite Walton v. Avco, 383 Pa. Super. 518, 557 A.2d 372, 386, alloc. granted, 524 Pa. 594, 568 A.2d 1245 (1989), in support of their argument, but Walton addressed an altogether different issue, the right of contribution among defendants held jointly and severally liable. Defendants have not advanced any convincing reasons for treating asbestos manufacturers differently than other joint tortfeasors, and we know of none.

 Finally, even if we agreed with defendants' contention that apportionment is appropriate, the issue should have been raised before the case was submitted to the jury. The determination of relative fault among defendants is an issue of fact for the jury to decide. Corbett v. Weisband, 380 Pa. Super. 292, 551 A.2d 1059, 1079 (1988), appeal denied, 524 Pa. 607, 569 A.2d 1367 (1989); Glomb, supra, 530 A.2d at 1367 and Martin, supra, 528 A.2d at 948.

 Based on these considerations, we find that all non-settling defendants are jointly and severally liable for the verdict, and judgment will be entered to that effect. Defendants have, of course, the right to contribution among themselves under the Uniform Contribution Among Tort-feasors Act, 42 Pa.C.S.A. §§ 8321-8327 (Purdon 1991), if any one defendant pays more than its share of the judgment. See: Wirth v. Miller, 398 Pa. Super. 244, 580 A.2d 1154, 1156 (1990). Allocation of responsibility among them is a separate matter ...


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