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In re All Kelley & Ferraro Asbestos Cases12/30/2004
the settlement agreement as "defining the members' liability vis-à-vis each other" (emphasis sic) not their liability to claimants and, therefore, as imposing joint and several liability on the CCR members. Id. at 56. The court additionally stated that its interpretation comported with fundamental fairness, as the parties did not dispute the total amount owed to the claimants and as the CCR members were better situated to pursue a defaulting member for its share. Id. at 58-60.
{ } Additionally, the court overruled the arguments of the CCR members that the trial court lacked jurisdiction to adjudicate the asbestos claims filed in other jurisdictions and that the trial court lacked personal jurisdiction to enter judgment against members of the CCR who had not been named as defendants or served with process in the underlying lawsuits. Id. at 63. The appellate court concluded that the members had waived any jurisdictional defects by voluntarily appearing and defending against the claimants' motions and by failing to raise such arguments until after the trial court entered judgment against them in the first motion to enforce. Id. at 70.
{ } The cause is now before this court in accordance with our allowance of a discretionary appeal filed by 11 CCR members: Amchem Products, Inc., C.E. Thurston & Sons, Inc., CertainTeed Corp., Dana Corp., I.U. North America, Inc., Maremont Corp., National Service Industries, Inc., Nosroc Corp., Pfizer Inc., Quigley Company, Inc., and Union Carbide Corp. But we have stayed the proceedings in this case as to Quigley Company, Inc. and Pfizer, Inc., due to a bankruptcy action pending in the United States Bankruptcy Court for the Southern District of New York. See 103 Ohio St.3d 1445, 2004-Ohio-4799, 814 N.E.2d 1226.
Arbitration
{ } We begin by noting that the settlement agreement contains an arbitration clause. And in Cales v. Armstrong World Industries, Inc., Scioto App. No. 02CA2851, 2003-Ohio-1776, the Fourth District Court of Appeals considered a similar settlement agreement negotiated by the CCR and ordered arbitration of a comparable dispute after determining that the agreement was sufficiently ambiguous regarding whether the member companies agreed to be jointly and severally liable. See, also, Besece v. Armstrong World Industries, Inc., Jefferson App. No. 03 JE 8, 2004-Ohio-3636; Rourke v. Amchem Prods., Inc. (2003), 153 Md.App. 91, 835 A.2d 193. As pointed out by claimants in the instant matter, however, neither party has argued the applicability of the arbitration provision, and, therefore, we decline to address the matter. See, generally, Bryant v. Clark (1992), 62 Ohio St.3d 485, 584 N.E.2d 687, syllabus (stating that " n insurer that consents to a default judgment in a suit against an uninsured motorist, and does not request arbitration until after that judgment has been entered, has waived its right to submit the issues of liability and damages to arbitration").
Joint and Several Liability
{ } The principal issue presented for our review concerns whether the settlement agreement provides for several liability, as contended by the members of the CCR, or for joint and several liability, as maintained by the claimants and as determined by the appellate court.
{ } Claimants argue that the settlement agreement creates joint and several liability and have correctly presented the law in Ohio as it has existed for over 160 years-that joint and several liability generally attaches when multiple parties default on their collective promise to pay a single sum of money, unless the contract sets forth their individual obligations. See Stage v. Olds (1843), 12 Ohio 158, 167 (stating that " h
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