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In re All Kelley & Ferraro Asbestos Cases12/30/2004
en several persons execute an instrument, in parol or under seal, upon the same consideration, at the same time, and for the same purpose, and taking effect from a single delivery, they are, in legal effect, joint contractors or obligors"); Wallace v. Jewell (1871), 21 Ohio St. 163, 171-172; Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58.
{ } In the textbook case of Raffles v. Wichelhaus (Ex.1864), 159 Eng.Rep. 375, the parties there also entered into an agreement but were uncertain of its meaning. They had agreed to the sale of cotton aboard a ship named Peerless from Bombay, when, in fact, two ships arriving from Bombay bore that name. The seller claimed that he complied with the agreement when a ship named Peerless arrived. The buyers, on the other hand, who had refused to pay for that cotton, maintained that no meeting of the minds ever occurred, and, accordingly, no contract ever existed, due to a latent ambiguity-the seller meaning one Peerless and the buyer meaning the other. The court entered judgment for the buyers.
{ } This case, however, is different from Raffles in that the signatories of the settlement agreement do not disagree that a valid contract exists, but rather, differ as to whether the contract language creates joint and several liability or only several liability.
{ } The focus of their difference centers upon paragraph 13 of the settlement agreement, the first sentence of which provides:
{ } "Payments to Plaintiff Counsel by the CCR under paragraph 5 of this Settlement Agreement shall be funded by the CCR member companies in accordance with the terms of the Producer Agreement Concerning Center For Claims Resolution (as amended, effective February 1, 1994) and each CCR member company shall be liable under this Settlement Agreement only for its individual share of such payments as determined under that Producer Agreement." (Emphasis added.)
{ } The remainder of paragraph 13 contains options available to the claimants in the event that a member company fails to pay its allocated share: "In the event that the CCR fails to make any of the payments pursuant to paragraph 5 because any one of the CCR member companies fails to make timely payment of its individual share of such payment when such payment has become due * * *," the claimants may (1) void the settlement agreement as to the defaulting member companies or (2) void the settlement agreement as to all CCR members. Under the first option, claimants may either pursue the defaulting member company in the tort system or sue to enforce its obligation under the agreement.
{ } The member companies assert that the first sentence of paragraph 13 unambiguously provides, in their words, that "each company is liable under the Settlement Agreement only for its own share-not for the entire amount of the settlement and not for the shares of other companies." (Emphasis sic.) And by subsequently defining the options available to the claimants when they receive a deficient payment due to one company's failure to pay its allocated share, paragraph 13 further demonstrates that the parties envisioned that "default by one company will result in a shortfall, not in increased payments by the other companies." Any other interpretation-according to the member companies- would render those options meaningless, as there would be no impetus for the claimants either to pursue only the defaulting company when they could pursue all of them for the deficiency, or to void the agreement in its entirety and sue the members in the tort system when they would always be paid in full under the contract.
{ } The claimants, on the other hand, assert that the language in parag
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