Brooklyn Workplace Accident

Asbestos Related Death In A New York Workplace

IN THE MATTER OF NEW YORK COUNTY ASBESTOS LITIGATION: BROOKLYN NAVAL SHIPYARD CASES. / MARLENE DIDNER, &C., ET AL., RESPONDENTS, v. KEENE CORPORATION, APPELLANT. (AND OTHER ACTIONS.)

82 N.Y.2d 342, 624 N.E.2d 979, 604 N.Y.S.2d 884 (1993).
November 18, 1993
1 No. 226 [1993 NY Int. 231]
Decided November 18, 1993

The particular appeal before us is taken by defendant Keene Corporation (Keene), a nonsettling defendant in a multi- defendant tort action arising out of plaintiff's decedent's exposure to asbestos. The appeal turns on the effect to be given under GOL § 15-108(a) to an agreement of settlement between plaintiff and the Manville Asbestos Disease Compensation Fund (Manville), announced in open court, which was to be effectuated by entering "a consent judgment" after the verdict. The Appellate Division has concluded with a divided court (In Re: Matter of New York City Asbestos Litigation, Didner v Keene Corp., 188 AD2d 15) that this agreement did not constitute a settlement bringing GOL § 15-108(a) into play for the reason that the agreement did not expressly release the tortfeasor. Thus, this holding of the Appellate Division presents a preliminary issue on which defendant Keene must prevail before the question concerning the proper method for calculating the offset can be discussed -- i.e., whether the Manville agreement constitutes a settlement under GOL § 15-108(a); in other words, whether GOL § 15-108(a) applies at all. On this issue, for reasons explained hereafter in Part II, we agree with defendant Keene and the dissent at the Appellate Division (id., at 26-30) that the Manville agreement is a settlement triggering GOL § 15-108(a).

Plaintiff commenced this action against 18 defendants to recover damages for wrongful death, pain and suffering and loss of consortium by reason of the death of her husband due to asbestos exposure. The trial was conducted in two stages, with the jury considering damages first and questions of liability, including apportionment of fault, second. On June 27, 1990, the jury returned a damages verdict totalling $5,867,353, later reduced by the trial court to $3,917,353. The liability phase commenced the next day, June 28, 1990.

Accordingly, the aggregate method of computing offsets under GOL § 15-108(a) should be used. Manville's apportioned share (60.17%) of the reduced recovery ($2,356,953.80) when added to the total of the apportioned shares of the other settling defendants ($976,047.70) makes a total of $3,333,001.50 for the apportioned shares of all the settling defendants. This sum is greater than the total of the settlements, including Manville's, which is $3,300,000. Therefore, $3,333,001.47 should be deducted from the recovery of $3,917,353.00 leaving the sum of $584,351.53.

The order of the Appellate Division should be modified with costs to plaintiff, and the matter remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein, and as so modified affirmed.

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