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