Statute of Repose and Independent Contractor Defense Bar Asbestos Claims in New Jersey


In a unanimous decision, New Jersey’s intermediate appellate court applied the statute of repose and the independent contractor defense and reversed a $1.8 million verdict awarded to the widow of a union asbestos insulator.  Barile v. 3M, Inc. et al., No. 0092-11T2, 2013 WL 472718 (N.J. App. Div., Sept. 4, 2013).


Plaintiff Mary Barile filed an asbestos-related personal injury and wrongful death lawsuit on behalf of her husband, Walter Barile, against numerous defendants, including Foster Wheeler, an international engineering firm, and Exxon Mobil Corporation, the owner of the Bayway Refinery.  The plaintiff alleged that her husband’s injuries were caused in part from his exposure to asbestos-containing insulation materials on a Foster Wheeler boiler while working as a union insulator at the Bayway Refinery.  Following a six-week trial, the trial court dismissed the plaintiff’s negligence claims against premises owner Exxon under the independent contractor defense.  The plaintiff’s strict liability claims against Foster Wheeler proceeded to the jury, which found the company liable for the decedent's injuries and awarded damages.  Foster Wheeler appealed the verdict on the basis that New Jersey's statute of repose barred all claims against Foster Wheeler, including those based upon strict liability, because the decedent’s injury arose from a defective and unsafe condition of an improvement to real property. Foster Wheeler designed and planned the construction of the improvement, and the injury occurred more than 10 years after the performance of Foster Wheeler’s services.  The plaintiff cross-appealed the dismissal of her negligence claims against Exxon.


The New Jersey Appellate Division reversed the trial court's ruling that the plaintiff’s claims against Foster Wheeler were not barred in their entirety by the statute of repose and affirmed the dismissal of the plaintiff’s claims against Exxon under the independent contractor defense.  Under New Jersey’s statute of repose, N.J.S.A. 2A:14:1-1 (2007), all lawsuits for defective work against engineers, architects and designers of improvements to real property must be filed within 10 years of completion of the work alleged to have caused the injury.  The Appellate Division held that the plaintiff’s claims against Foster Wheeler were barred because its work, which allegedly caused the decedent’s exposure, involved the design, construction and completion of an improvement to real property in 1963, and the plaintiff’s action was filed more than 10 years later.


With regard to the plaintiff’s assertions that Foster Wheeler could be strictly liable for asbestos-containing insulation materials used on the boiler, the Appellate Division stated that “the use of a defective product among the materials used to design and construct an improvement to real property does not circumvent application of the statute of repose to a designer or builder of an improvement, including on a claim of strict liability.”  Additionally, the Appellate Division affirmed the trial court’s ruling and held that, under the independent contractor defense, Exxon could not be liable for the injuries caused by the work of an independent contractor on the Foster Wheeler boiler because Exxon did not control the means and methods of the work performed.


The Appellate Division’s decision is a significant victory for premises owners, designers and builders of improvements faced with asbestos-related lawsuits in New Jersey.

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