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In re All Kelley & Ferraro Asbestos Cases12/30/2004
these terms and agreed to them, and they concede in their brief that the settlement agreement provides for several liability, so long as the shares have been properly and timely allocated. Any issues arising in regard to share allocation do not change the nature of the promises made by the members in the settlement agreement. Accordingly, Section F does not alter the intent of the parties to this appeal, as manifested in the settlement agreement, that liability of the member companies is limited to their individual shares.
{ } We are not unmindful of the position taken by the dissent but hasten to point out that the options available to claimants in the event of default by a member company have not only been provided for in the settlement agreement but also have been ignored by the dissent. For such a situation, the options available to the claimants include voiding the settlement agreement in its entirety, voiding it as to the defaulting member and pursuing that member in tort, or suing the defaulting member to enforce its contractual obligation. (See paragraph 13 of the settlement agreement.) As is evident, the parties anticipated a CCR member company defaulting on its individual share.
{ } The dissent asserts that the provisions of the Producer Agreement create joint and several liability among the member companies and suggests that claimants may enforce these provisions. But that view distorts the meaning of both the Producer and settlement agreements. The settlement agreement defines the rights between the member companies and the claimants, while the Producer Agreement defines the rights between and among the CCR member companies. Equally troubling is the dissent's discussion about the equities, as this case concerns legal relief and not equitable relief. Although the dissent complains that the majority's viewpoint, which it does not share, is somehow distorted, analysis of all provisions in both agreements reveals that the CCR member companies agreed to be liable only for their individual shares.
{ } To summarize, by signing the settlement agreement, the claimants understood that the members would be paying various, undisclosed amounts toward the total sum, as calculated by the formula set in the Producer Agreement-an agreement that had been in effect since 1988. And, as the settlement agreement expressly refers to the Producer Agreement, claimants knew not only about that formula, but also that the Producer Agreement expressly conferred no rights to third parties and that disputes regarding share allocation would be determined through arbitration among the members. See Cales v. Armstrong World Industries, Inc., Scioto App. No. 02CA2851, 2003-Ohio-1776, at fn. 12. They agreed that the CCR members would fund the installments in accordance with the terms of the Producer Agreement and that each member would be liable "only for its individual share" of such payments. Under these circumstances, the claimants cannot assert that the members assumed joint and several liability for the settlement amount. See, generally, Energy Acquisition Corp. v. Harbor Ins. Co. (Sept. 4, 1990), W.D.Mich. No. G8910341 CA.
{ } Based on the foregoing, we hold that the settlement agreement creates only several liability among the CCR members, and, therefore, each member is responsible only for its individual share of liability payments. Because the appellate court interpreted the agreement as providing for joint and several liability, that decision is reversed.
Jurisdiction
{ } We are further asked to determine whether the trial court had jurisdiction to enter judgment for all 15,000 claimants against all CCR member companies in view of the fact that not all of t
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