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Ripa v. Owens-Corning Fiberglas Corp.6/5/1995
manufacturer, Owens-Illinois, precludes the continuation of the suit against the distributor Owens-Corning. In making this claim, plaintiff misreads Promaulayko v. Johns Manville Sales Corp., 116 N.J. 505, 511, 562 A.2d 202 (1989). A manufacturer is' liable to indemnify distributors further along the chain of distribution for defects that originate with the manufacturer. Although the manufacturer is primarily liable to a plaintiff, the fact that the manufacturer is liable does not discharge the responsibility of a distributor.
Plaintiff's settlement with Owens-Illinois did not mean that plaintiff has been paid in full. Also, Owens-Illinois did not conclusively buy its peace by such a settlement since under Promaulayko Owens-Corning has a right to be indemnified by Owens-Illinois if Owens-Corning is held liable solely because of its distribution of Owens-Illinois' defective product. In such a case, if plaintiff received more from Owens-Illinois and the other settling defendants who are responsible a greater amount in settlement than their percentage of the verdict amount, Owens-Corning will still have to pay its percentage and attempt to obtain reimbursement from the codefendants. Rogers v. Spady, 147 N.J. Super. 274, 278, 371 A.2d 285 (App. Div. 1977).
If, however, Owens-Corning could independently be held liable for a failure to warn or otherwise, then Owens-Corning would merely have a right of contribution from Owens-Illinois. Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 566-567, 410 A.2d 674 (1980). Indeed, the Court in Cartel Capital held that a settlement with a primarily liable manufacturer did not release the distributor/installer "from either its vicarious or direct responsibility." Id. at 561. Owens-Illinois and Owens-Corning had independent duties as manufacturer and distributor respectively (and as co-manufacturers for a short relevant period) to warn decedent of the dangers of their product. This duty was not the type that was indemnifiable as a matter of law under Promaulayko, where a product with a manufacturing or design defect was merely passed on by a distributor.
The parties need not retry the case to determine whether Owens-Illinois and Owens-Corning were independently liable for breach of their duty to warn. These defendants were equally required to warn, and the jury's verdict was clear that each was forty-five percent liable, not that both were ninety percent responsible. If the latter were so, the jury in effect would have been holding that the product, Kaylo, was ninety percent responsible for the injuries and death and that the manufacturer and distributor were equally responsible for this liability. The jury apportioned responsibility for these defendants' failure to warn decedent of the dangers of the asbestos at the jobsite. Since there was no cross-claim between these related defendants represented by a single attorney at trial, any question of Owens-Illinois being totally liable is moot.
II
Prior to trial, plaintiff stipulated that Keene Corporation, which also shared the other defendants' representation at trial, was forty percent responsible for the liability and would not be responsible for punitive damages. The trial Judge held Keene to that stipulation but also enforced the jury's forty-five percent allocations to the other defendants. We find that the Judge incorrectly apportioned the judgment based upon this stipulation. The jury determined that Keene was only ten percent responsible and that Owens-Corning and Owens-Illinois were each forty-five percent responsible. By finding Keene forty percent responsible and each of the other defendants forty-five percent responsible, plaintiff, in effect, received 130 percen
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