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DARAIO v. CAREY CANADA

March 25, 2004.

JOSEPH DARAIO and DOROTHEA DARAIO, h/w, Plaintiffs,
v.
CAREY CANADA, INC., et al., Defendants



The opinion of the court was delivered by: ROBERT KELLY, Senior District Judge

MEMORANDUM

Presently before this Court is the Defendant's, Aetna Life and Casualty Company, n/k/a Travelers Casualty and Surety Company ("Aetna"), Motion for Summary Judgment. For the following reasons, Aetna's Motion will be granted.

I. BACKGROUND

  The Plaintiff, Joseph Daraio, worked at an asbestos plant in Berlin, New Jersey (the "Berlin plant"). The Berlin plant was owned and operated by Owens Corning Corporation ("Owens Corning"). Mr. Daraio worked at the Berlin plant during the summer of 1960 and again from 1961 thru 1966. In 1987, Mr. Daraio learned that he suffered from asbestosis. Aetna was the Workers' Compensation carrier for the Berlin plant. During Mr. Daraio's tenure at the Berlin plant, Aetna performed dust studies and made various recommendations to Owens Corning and the Berlin plant based on the results of the dust studies. The Berlin plant had a safety team in place which decided whether to adopt the recommendations of Aetna. Often times, the Berlin plant's safety team would Page 2 adopt Aetna's recommendations, yet other times, the recommendations were not adopted.

  The Plaintiffs state that upon completing the dust studies, Aetna had a duty to warn the Berlin plant's employees directly about the levels of asbestos found in the dust studies rather than only report its findings to the Berlin plant's safety team. Plaintiffs also argue that based on its findings, Aetna's duties included making sure that its recommendations were adopted by the Berlin plant safety team.

  II. STANDARD

  Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 249. A factual dispute is material only if it might affect the outcome of the suit under governing law. Id. at 248.

  To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather that party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Similarly, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary Page 3 judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989)(citing Celotex, 477 U.S. at 325 (1986)). Further, the non-moving party has the burden of producing evidence to establish prima facie each element of its claim. Celotex, 477 U.S. at 322-23. If the court, in viewing all reasonable inferences in favor of the non-moving party, determines that there is no genuine issue of material fact, then summary judgment is proper. Id. at 322; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).

  III. DISCUSSION

  The Plaintiffs argue that upon completing dust studies in the Berlin plant, Aetna was then required to warn the Berlin plant's employees directly about its findings. Four different theories are set forth in Plaintiffs' Response Brief for holding Aetna liable. Specifically, the Plaintiffs argue that Aetna is liable based upon: 1) Section 324A of the Restatement (Second) of Torts; 2) Section 323 of the Restatement (Second) of Torts); 3) the Third Party Beneficiary status of Mr. Daraio; and 4) the Breach of Aetna's Fiduciary Obligation to Mr. Daraio.

  Before this Court engages in a discussion of the various theories Plaintiffs have set forth, it is important to note what is not at issue. The parties are in agreement that New Jersey law applies in this case. "A federal court exercising diversity jurisdiction must apply the choice of law rules of the forum state in determining which state's law to apply to the substantive issues before it." Blakesley v. Wolford, 789 F.236, 238 (3d Cir. 1986)(citations omitted). The Pennsylvania Supreme Court has also stated that:

  [i]n determining which state has the greater interest in the application of its law, one method is to see what contacts each state has with the accident, the contacts being relevant only if they relate to the policies Page 4 and interests underlying the particular issue before the court." When doing this it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state's contacts must be measured on a qualitative rather than a quantitative scale."

 Cipolla v. Shaposka, 439 Pa. 563, 566, 267 A.2d 854, 856 (1970)(internal quotation marks and citation omitted). This Court agrees that New Jersey has the greater weight of the contacts. Mr. Daraio is a resident of New Jersey and the alleged injury caused by Aetna occurred while Mr. Daraio was working at the Berlin plant in New Jersey. Thus, New Jersey law applies.

  Next, the Plaintiffs do not state that Aetna was negligent in its performance of the dust studies. Rather, the Plaintiffs allege that by performing the dust studies, Aetna had a duty to warn the Berlin plant's employees directly about its findings and to ensure ...


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