Hannibal Saldibar et al. v. A.O. Smith Corporation et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (MOTION # 215.00)

FACTS

On April 29, 2009, the plaintiffs filed their original complaint, and, on August 4, 2010, they filed a sixth amended complaint in four counts against various defendants.   The complaint arises from Hannibal Saldibar's alleged exposure to asbestos-containing products while employed as a petty officer in the Navy from 1943 to 1946, and as a tile setter from 1946 to 1979.

The plaintiffs allege a violation of the Connecticut Product Liability Act and a violation of Connecticut's wrongful death statute.   In addition, they allege that the defendants' conduct was grossly negligent, willful, wanton, malicious and/or outrageous because, since 1929, the defendants allegedly possessed medical and scientific data, studies and reports indicating that asbestos-containing products were hazardous.   The defendants allegedly failed to acknowledge or publish this information.   Finally, the plaintiffs allege a loss of consortium on behalf of Eleanor Saldibar.

The defendant Sullivan Tile Distributors (Sullivan Tile), filed a summary judgment motion on March 11, 2010, and subsequently filed its answer and special defenses on March 16, 2010.   Sullivan Tile moves for summary judgment on the basis that the plaintiffs have failed to offer any evidence demonstrating that Hannibal Saldibar was exposed to any asbestos-containing products manufactured, distributed or sold by Sullivan Tile. The plaintiffs' memorandum in opposition, filed on June 4, 2010, counters that Hannibal Saldibar was exposed to Sullivan Tile's asbestos-containing products.   In addition, the plaintiffs respond that Hannibal Saldibar was exposed to such products through the phenomenon known as asbestos drift.   Both parties have submitted exhibits to support their respective positions.

Sullivan Tile filed a reply brief to the plaintiffs' opposition memorandum on May 6, 2011.   It reargued that the plaintiffs have failed to demonstrate that Hannibal Saldibar purchased specific asbestos-containing products from Sullivan Tile. In the alternative, it posits that the plaintiffs sued the wrong party when bringing suit against Oriental Tile Importers, Inc. AFS Arnold Agnolias, according to the defendant, that entity was not in existence before the plaintiff's period of claimed exposure ended.   The plaintiffs responded by a memorandum filed on July 20, 2011, arguing that the evidence in this case establishes that Arnold Agnoli's company, Oriental Tile Importers d/b/a Sullivan Tile, is responsible for the seller corporations's liabilities.

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Id. “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  (Internal quotation marks omitted.)   Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).

When encountering a products liability claim in the context of asbestos litigation, “a plaintiff must (1) identify an asbestos-containing product for which a defendant is responsible, (2) prove that he has suffered damages, and (3) prove that [the] defendant's asbestos-containing product was a substantial factor in causing his damages.”  (Internal quotation marks omitted.)   Mastroianni v. Acands, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 99 0362945 (May 17, 2011, Bellis, J.).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

Here, the defendant Sullivan Tile has moved for summary judgment;  accordingly, “the burden is on [that] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing [its] entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to demonstrate the existence of a genuine issue of fact that would justify a trial.  Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).

As set forth above, Sullivan Tile moves for summary judgment on the alternative ground that the plaintiffs have brought suit against the wrong entity.   The court will address this ground first.

The evidence submitted by this defendant included a supplemental affidavit of Arnold Agnoli dated April 29, 2011.   In the affidavit, Arnold Agnoli states that on July 30, 1984, he opened the Agnoli Corporation.   He states further that “[t]he Agnoli Corporation purchased the inventory of the first Oriental Tile Importers Inc. for approximately $675,000.   The inventory consisted largely of ceramic tile, tow motors and office equipment.”   According to Agnoli, Louis Sullivan gave him the right to use the names Oriental Tile Importers, Inc. and Sullivan Tile, and the name was officially amended from Oriental Tile Importers, Inc. to Sullivan Enterprises, Inc. on August 3, 1984.

Agnoli avers that “[n]either the Agnoli Corporation nor the second Oriental Tile Importers, Inc. assumed the liabilities of the original Oriental Tile Importers, Inc. run by Mr. Louis Sullivan.   Further, I personally did not assume the liabilities of the original Oriental Tile Importers, Inc.” He further states, however, that “I have not been able to locate, either directly or through my attorney's office, the purchase and sale agreement ․” (Emphasis added.)  Section 10–1 of the Connecticut Code of Evidence, our “Best Evidence” rule, provides that, in proving a writing's content, the original writing must be admitted into evidence.  Section 10–3 of the Connecticut Code of Evidence, however, allows for certain exceptions to this rule:  (1) if the original is lost or destroyed;  (2) if the original is unobtainable;  (3) if the original is in an opponent's possession;  and (4) the contents relate to collateral matters.   To fit within the first exception, it must be established that “[a]ll originals are lost or have been destroyed”;  Conn.Code of Evid. § 10–3(1);  which has not been done for purposes of this summary judgment motion.   With respect to the second exception, the defendant must demonstrate that “[n]o original can be obtained by any reasonably available judicial process or procedure ․” Conn.Code of Evid. § 10–3(2).   Agnoli's attestation merely reflects that he was unable to locate the agreement through his attorney, and does not indicate that an original could not be obtained through any reasonably available judicial process or procedure.   Finally, the defendant has not demonstrated that the document is within an opponent's possession, which would bring this matter within the third exception.   Finally, to the extent that the purchase and sales agreement spells out the parameters of Arnold Agnoli's assumption of liability from the seller entity, the document does not represent a collateral matter so as to avail itself of the fourth exception.

As the plaintiffs emphasize, without reviewing the express language of the purchase and sale agreement, no determination can be made concerning Arnold Agnoli's relationship vis a vis the obligations and liabilities with respect to the seller entity, Oriental Tile Importers, Inc. Accordingly, a question of fact exists as to this issue.

To prevail on its summary judgment motion, Sullivan Tile must now demonstrate that no material facts exist with respect to Hannibal Saldibar's alleged exposure to any of its products In support of its summary judgment, Sullivan Tile submitted several exhibits.   One of the exhibits is a copy of deposition testimony taken from Arnold Agnoli.   Agnoli attests that Sullivan Tile “sold ceramic tiles and thin sets and epoxies for installation of ceramic tiles only.   Sullivan Tile Distributors never sold vinyl asbestos tiles or any adhesives necessary for installation of vinyl asbestos tiles.”   Further, Agnoli claims that Sullivan Tile “never manufactured any products, but was at all times a distributor,” and to the best of his knowledge “never distributed or sold any products containing asbestos.”   Based upon the attestations contained in Agnoli's affidavit, Sullivan Tile has met its burden by dispelling a question of material fact with respect to Sullivan Tile's alleged sale of asbestos-containing products.   Now, the burden shifts to the plaintiffs to submit documents to establish the existence of such an issue of material fact.

The plaintiffs have submitted a products list, with a notation affixed on the top of the page stating “Plaintiff Hannibal Saldibar [i]dentifies the following products,” and Saldibar initialed the bottom of the document on May 4, 2009.   The document contained a section entitled “Retailers,” and underneath that section the name “Sullivan Tile” appeared.   During his deposition testimony, taken on August 3, 2009, Hannibal Saldibar testified that he purchased products at Sullivan Tile, and he stated that “[t]hey sell mostly ceramic tile, floor tile, grout, mastic, adhesives for the floor, all in that line of ceramic tile.”   He further claimed that he began purchasing products at Sullivan Tile “in the '60s.”   He also responded that he continued to go to that store afterward, and that he worked with the products that he purchased there.   With respect to a product that previously was found to have contained asbestos, L & M thinset, Hannibal Saldibar was asked whether he had worked with L & M thinset, and he responded in the affirmative.   In addition, he was asked “which stores [he] would have bought L & M thinset from?”   He replied that “[y]ou can buy it at Sullivan Tile or you can buy it at American Olean.   Again, I have to go back to the name Tile America.”   This deposition testimony raises a question of material fact as to whether Sullivan Tile sold products containing asbestos.

Thus, there is a question of fact as to whether Sullivan Tile assumed the liabilities of its predecessor.   In addition there is a question of fact concerning whether Hannibal Saldibar purchased asbestos-containing products from Sullivan Tile. Accordingly, Sullivan Tile's motion for summary judgment is denied.

By the Court,

BELLIS, J.

Bellis, Barbara N., J.