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In re All Kelley & Ferraro Asbestos Cases12/30/2004
io-24, 801 N.E.2d 452, at 9, citing Kelly v. Med. Life Ins. Co. (1987), 31 Ohio St.3d 130, 31 OBR 289, 509 N.E.2d 411, paragraph one of the syllabus. "Common words appearing in a written instrument will be given their ordinary meaning unless manifest absurdity results, or unless some other meaning is clearly evidenced from the face or overall contents of the instrument." Alexander, 53 Ohio St.2d 241, 7 O.O.3d 403, 374 N.E.2d 146, at paragraph two of the syllabus. Where the terms are clear and unambiguous, a court need not go beyond the plain language of the agreement to determine the rights and obligations of the parties. Aultman Hosp. Assn. v. Community Mut. Ins. Co. (1989), 46 Ohio St. 3d 51, 53, 544 N.E.2d 920, 923. Where possible, a court must construe the agreement to give effect to every provision in the agreement. Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth. (1997), 78 Ohio St.3d 353, 362, 678 N.E.2d 519, quoting Farmers Natl. Bank v. Delaware Ins. Co. (1911), 83 Ohio St. 309, 94 N.E. 834, paragraph six of the syllabus.
{ } In the present case, the language-"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 * * * 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"-can only be interpreted as imposing several liability upon the CCR member companies and manifests the parties' intent that each member be responsible for only its individual share of the total settlement amount as calculated pursuant to the Producer Agreement. In other words, the first sentence of paragraph 13 shows that the members promised to pay limited amounts toward the biannual installments specified in the settlement agreement. Cf. Ulman v. Manheimer (C.A.6, 1918), 249 F. 691, 695, where the Sixth Circuit interpreted the phrase, "Each of us agrees to be liable for our respective shares," to render the liabilities "fractional, and not unitary."
{ } The parties' intent to create several liability is further evidenced by the remaining portion of paragraph 13, which contains options available to the claimants in the event that a member fails to pay its allocated share. Specifically, that section provides that " n 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 or (2) void the settlement agreement as to all CCR members.
{ } By providing these options for the situation where a member fails to pay its individual share, paragraph 13 demonstrates that the parties believed that the agreement created individual obligations among the members and that a company's failure to tender its allocated share would result in a deficient installment payment to the claimants. As pointed out by the CCR members, interpreting the settlement agreement to provide for joint and several liability would render these options essentially meaningless, as there would be little or no impetus for claimants to pursue the defaulting member individually, especially when default is due to insolvency. And they would likewise lack incentive to void the agreement in toto and pursue the members in the tort system because, under joint and several liability, they could recover the entire settlement amount from any one of the member companies. Moreover, the latter option-voiding the agreement in its entirety-shows that th
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