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Slyke v. Worthington12/18/1992
The case before the court is on a motion for summary judgment filed on behalf of the defendant, Carrier Corporation to dismiss a complaint based upon N.J.S.A. 2A:14-1.1, the ten-year statute of repose for actions arising out of defective design or construction of improvements to real property. The heating, ventilation and air conditioning units located in the buildings where plaintiff worked and from which he alleges exposure to asbestos were installed more than ten years prior to April 23, 1987, the date this action was commenced. Therefore, were N.J.S.A. 2A:14-1.1 to apply to this case, plaintiffs' suits would be barred. However, plaintiff challenges the application of the statute of repose in that plaintiff's asbestos exposure occurred on properties located exclusively in New York State. Plaintiff therefore argues that New York State's substantive law applies to this case where no statute of repose exists. Resolution of this issue therefore will depend upon a choice of law question.
On July 31, 1987 plaintiff, Warren Van Slyke was diagnosed by Dr. Susan Daum as suffering from pleural and pulmonary asbestosis related to his asbestos exposure. Mr. Van Slyke and his wife, Barbara Van Slyke, filed the instant suit alleging that Mr. Van Slyke was exposed to asbestos containing thermal insulation products between 1946 and 1984 while engaged in the repair and maintenance of various heating and cooling units all of which were located within buildings in New York City, New York. Mr. Van Slyke is and has been a New Jersey resident since 1964.
Defendant, Carrier Corporation is incorporated under the laws of Delaware and has its principal place of business in Syracuse, New York.
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The preliminary issue to be resolved before reaching the conflicts of law question is whether N.J.S.A. 2A:14-1.1 is a matter of substantive or procedural law of this state. N.J.S.A. 2A:14-1.1 reads:
No action whether in contract, tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.
This State's Supreme Court has heretofore recognized both the procedural and substantive aspects of the statute of repose.
N.J.S.A. 2A:14-1.1 is a . . . hybrid. On the one hand, it bars a right of action from coming into existence if the accident occurs subsequent to the ten-year period; but as to those events happening before the statutory period has run, the provision disallows, like any other statute of limitations, the institution of suit after the prescribed ten years has expired. [ O'Connor v. Altus, 67 N.J. 106, 121-122, 335 A.2d 545 (1975)].
New Jersey Courts have recognized the substantive aspects the st
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