 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
In re All Kelley & Ferraro Asbestos Cases12/30/2004
ponding shares of the other Participating Producers shall be increased appropriately to pick up the shares of the * * * terminating Participating Producer."
{ } This provision answers the very question before us. The majority opinion, which mentions the provision, essentially ignores it, relying on this specious logic: " he Producer Agreement can be enforced only by the CCR companies." This court should have looked at the entire agreement to determine the intent of the parties. Instead it focused on part of one sentence and ignored the inconvenient provisions that do not support its view of the case. I agree with the court of appeals, which stated:
{ } "In our effort to harmonize and to give reasonable effect to all provisions in the parties' agreement, we have concluded [that] the first sentence in Paragraph 13 of the Settlement Agreement, read in its entirety and in conjunction with other settlement provisions, imposes joint and several liability on the CCR members. Instead of reading this sentence as defining the members' liability to the plaintiffs, as the CCR members propose, we read this sentence as defining the members' liability vis-à-vis each other. The CCR members could have easily made themselves 'severally' bound to the plaintiffs by using that magic word, but they did not. [footnote: See Corbin on Contracts §925 (Interim Ed. 2002) (The 'assumption' that the promisors mean to be bound 'jointly' can easily be overcome by adding words of 'severance.')] It is rather disingenuous for the CCR members, who are sophisticated business entities and represented by able counsel, to now tout that sentence as manifestation of the parties' intent to create several liability, when that purported intent could have easily been expressed by the use of the words 'severally liable.' " [Italics sic.]
{ } This court is being similarly disingenuous in focusing on part of one sentence while essentially ignoring Section F of Attachment A to the producer agreement and the overall context of Paragraph 13 of the settlement agreement.
{ } The majority opinion suggests that the equities favor the producers. Let's be serious. Even aside from the grievous health issues that the plaintiffs, not the producers, suffer, the producers are the parties that have violated the settlement agreement. The producers defaulted. There is no provision for partial payments. The producers made a partial payment in December 1999. There is no provision for no payment. The producers made no payment in December 2001 or thereafter. The producers should have submitted full payment and requested the court to escrow the disputed amount. Furthermore, the producers still haven't fixed the December 1999 payment schedule among themselves, which also violates the settlement agreement. Concluding that the equities favor the producers is difficult to comprehend.
{ } Finally, the majority states that the jurisdictional issue is moot. It would be better to state the obvious, that the lower court had jurisdiction because the parties entered into an agreement and asked the court to determine certain aspects of it. I dissent.
Page 1 2 3 4 5 6 7 8 9 10 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|