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In re All Kelley & Ferraro Asbestos Cases12/30/2004
e parties contemplated the situation where a significant number of CCR members default on their individual shares, presumably rendering the settlement agreement disadvantageous to the claimants.
{ } The structure of the agreement further fortifies our conclusion that the member companies promised to be liable only for their respective shares. Appendix A of the settlement agreement contains a list of all claimants whose claims were to be settled pursuant to that agreement and identifies the injured party's name, the court in which the case was filed, the alleged disease, and the settlement amount offered to each plaintiff. For each biannual installment, Kelley & Ferraro informs the CCR of those claimants who have qualified for payment in that installment, which is to be funded by the CCR in accordance with the terms of the Producer Agreement. Notably, the formula for calculating shares provides that only those member companies named as defendants in a particular asbestos-related claim will be allocated a share for it. Thus, the settlement agreement serves as a mechanism to resolve each plaintiff's individual claims against those member companies of the CCR responsible for his or her injury . And the member companies promised to be accountable only for their individual shares, which relate to such claims.
{ } By way of contrast, the situation here differs from that in Wallace v. Jewell (1871), 21 Ohio St. 163, where several individuals signed a promissory note for $2,000, stating "I promise to pay * * *." There, we determined that, by signing a note worded in that manner for a single sum of money, the signatories became jointly and severally liable on the note. Unlike the present case, however, Wallace involved an agreement with joint obligors promising to pay a single sum of money-in essence, promising the same performance; it did not contain any expression limiting the responsibilities of the obligors to certain amounts or otherwise evince an intent to create several liability for separate amounts.
{ } Section F of Attachment A of the Producer Agreement, cited by the claimants, does not change our conclusion that the CCR member companies promised to be liable only for their respective shares. That section provides:
{ } "In the event that a Participating Producer shall withdraw from membership in the Center pursuant to Section IV of the Agreement or have its membership terminated pursuant to Paragraph 3 of Section III, the corresponding shares of the other Participating Producers shall be increased appropriately to pick up the shares of the withdrawing or terminating Participating Producer."
{ } Notably, paragraph 3, Section III provides that "notwithstanding termination of membership, a Participating Producer shall continue to have and to honor all of the obligations incurred by it hereunder or on its behalf as a member prior to the effective date of its membership termination, including any retroactive adjustments of its percentage shares of liability payments and allocated expenses." We recognize that the parties dispute whether, in light of the foregoing provision, Section F obligates the members to pick up a terminated company's liability share for installments due after membership termination or whether it permits the CCR to continue to allocate shares to that company.
{ } What is undisputed, however, is the provision that the Producer Agreement can be enforced only by the CCR companies, as it expressly confers no rights to third parties. Thus, any alleged breach of that agreement, such as the alleged failure to comply with Section F, can only be resolved between and among the member companies in arbitration. The claimants understood
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