Document 7M6zK9Q6ErrY3jNke4e2mrBDV

/ UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA x TURNER & NEWALL PLC, Plaintiff, v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, : Defendant. -----------------x PLAINTIFF'S EXHIBIT Tn-5379 ; Civil Action No. 82-1339 (Judge Flannery) STATEMENT OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION PURSUANT TO 28 U.S.C. 1404(a) TO TRANSFER THIS CASE TO THE DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA David Lesser SULLIVAN & CROMWELL 1775 Pennsylvania Avenue Washington, D.C. 20006 (202) 857-1000 Attorneys for Plaintiff Turner & Newall PLC Philip L. Graham, Jr., James E. Akers, Mark F. Rosenberg, Of Counsel. July 19, 1982 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ..................................................................................... Introduction ................................................................................................... Background of the Parties and the Litigation ........................ SUMMARY OF ARGUMENT ........................................................................................ ARGUMENT ............... I. DEFENDANT HAS NOT SUSTAINED ITS HEAVY BURDEN OF PROVING THAT THE CONVENIENCE OF PARTIES AND WITNESSES AND THE INTERESTS OF JUSTICE WOULD BE SERVED BY A TRANSFER OF THIS ACTION TO THE EASTERN DISTRICT OF PENNSYLVANIA ............................... A. Convenience of the Parties .................................. 1. American Mutual's Convenience ............. 2. Turner & Newall's Convenience ............. B. Convenience of the Witnesses ............................. C. The Interest of Justice ............... II. THIS COURT'S DECISION IN OWENS-ILLINOIS, INC. V. AETNA CASUALTY & SURETY CO. IS FULLY APPLICABLE TO THE FACTS OF THIS CASE ............................................................................................... CONCLUSION ............................................................................................................... ii 1 2 4 6 6 7 7 9 10 12 22 25 -l- TABLE OF AUTHORITIES CASES Page Aiken v. Lustine Chevrolet, Inc., 392 F. Supp. 883 (D.D.C. 1975)...................................................... 7 American Can Co. v. Crown Cork & Seal, Co., 433 F. Supp. 333 (E.D. Wis. 1977)............................................... 22 *Austin v, Johns-Manville Corp., 524 F. Supp. 1166 (E.D. Pa. 1981)......................................................... 12,17,21 Catrett v. Johns-Manville Sales Corp., et al.. Civil Action No. 80-2232 (D.D.C.)............................................... 9 Cheeseman v. Carey, 485 F. Supp. 203 (S.D.N.Y.) remanded on other qrounds, 623 F. 2d 1387 (2d Cir. 1980)............................................................ 21 Cruz v. Ortho Pharmaceutical Corp., 619 F. 2d 902 (1st Cir. 1980)............................................................ 3 Daily Express, Inc, v. Northern Neck Transfer Corp., 483 F. Supp. 916 (M.D. Pa. 1979)................................................. 13 Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).......................... 21 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).................. 7 Hodqins v. American Mutual Liability Insurance Co., 261 F. Supp 129 (E.D. Pa. 1966).................................................... 15 Insulations Inc., 451 F. Supp. 1230 (E.D. Mich. 1978), aff'd, 633 F.2d 1212 (6th Cir. 1980), mod. and aff'd, 657 F.2d 814 (1981), cert. denied, 50 U.S.L.W. 3461 (Dec. 8, 1981)............................... 15 *Keene Corp. v. Insurance Co. of North America, ____ App. D.C. ____ , 667 F.2d 1034 (D.C. Cir. 1981), cert, denied, 50 U.S.L.W. 3716-(Mar. 8, 1982)....................................................................................................................... 16,20,21,24 Keene Corp. v. Pennsylvania Manufacturers' Association, 1981 F&C Rptr. 712 (CCH) (D.D.C. 1981), remanded, No. 81-1248 (D.C. Cir. Oct. 1, 1981), aff'd on remand (D.D.C. Jan. 8, 1982), appeal docketed. No. 81-1131 (D.C. Cir.)............................. 13,15 -ii- CASES Page Monsanto Corp. v. United Gas Pipe Line Co., 360 F. Supp. 1054 (D.D.C. 1973), aff'd without opinion, 160 App. D.C. 148, 489 F.2d 1272 (D.C. Cir. 1974).......................................................................................... 13 Ocean Science and Engineering, Inc, v. International Geomarine Corp., 312 F. Supp. 825 (D. Del. 1970)..................................................................................... 14 *Owens-Illinois, Inc, v. Aetna Casualty and Surety Co., Civil Action No. 82-89 (D.D.C. Mar. 30, 1982).................................................................................................................. 5,6,11,16, 17,22-25 Potomac Electric Power Co. v. Westinghouse Electric Corp., 385 F. Supp. 572 (D.D.C. 1974), rev'd without opinion, 174 App. D.C. 70, 527 F. 2d 853 (D.C. Cir. 1975)................................................................... 14 *Securities and Exchange Commission v. Hart, [1978] Fed. Sec. L. Rep. (CCH) 11 96,454 (D.D.C. 1978)....................................................................................................................... 7,10,12,17 * Securities and Exchange Commission v. Savoy Industries, 190 App. D.C. 252, 587 F.2d 1149 (D.C. Cir. 1978), cert. denied sub nom., Zimmerman v. Securities and Exchange Commission, 440 U.S. 913 (1979)................................................................................. 7,10,17,21 Sedgwick v. Beasley, 84 App. D.C. 325, 173 F. 2d 918 (D.C. Cir. 1949)................................................................... 14 *Sherman v. Ambassador Insurance Co., ____ App. D.C. ____ , 670 F.2d 251 (D.C. Cir. 1981)........................................................................................................................... 3,16,23 Starnes v. McGuire, 168 App. D.C. 4, 512 F. 2d 918 (D.C. Cir. 1974)......................................................... _ 7 Tobin v. Pennsylvania R. Co., 69 App. D.C. 262, 100 F.2d 435 (D.C. Cir.), cert, denied, 306 U.S. 640 (1938).......................................................................................................... 14 United States v. Firestone Tire & Rubber Co., 455 F. Supp. 1072 (D.D.C. 1978).................................................... 7 -iii- CASES Pa9e Van Dusen v. Barrack, 376 U.S. 612 (1964)............................... Westinghouse Electric Corp. v. C.J. Goodwin Corp., 432 Pa. 347, 247 A.2d 462 (1968)................................................. Williams v. McAllister Brothers, 534 F.2d 19 (2d Cir. 1976)............................................................................................... Zavota v. Ocean Accident & Guarantee Corp., 408 F.2d 940 (1st Cir. 1969) ......................................................... 7,21 14 3 3,16 STATUTES 28 U.S.C. S 1404(a)........................................................................................ 7 MISCELLANEOUS Administrative Office of the United States Courts, 1981 Annual Report of the Director............................................ Model Business Corp. Act Annotated............................... I............... C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 3851 17 14 12 Introduction In this action plaintiff Turner and Newall PLC ("T&N") seeks a declaration that American Mutual Liability Insurance Company ("American Mutual") is the insurer of T&N with respect to all claims brought against T&N for the alleged torts of T&N's former subsidiary, Keasbey & Mattison Company ("Keasbey"). Keasbey was a named insured under policies of comprehensive general liability and products liability insurance issued by American Mutual from 1928 through at least 1965. American Mutual has moved to transfer T&N's action, pursuant to 28 U.S.C. 1404(a), to the Eastern District of Pennsylvania, on the grounds that Pennsylvania law may apply to the action, that some unspecified evidence might be found in Pennsylvania, and that some of the underlying cases against T&N were commenced in Pennsylvania. The motion should be denied because American Mutual has failed to adduce any facts demonstrating that trial in this District would inconvenience parties or witnesses, or would disserve the interests of justice. Transfer would also deprive plaintiff of its choice of a convenient fortrm and allow defendant to escape precedent in this jurisdiction that it doubtless regards as unfavorable (if not fatal) to its case. Background of the Parties and the Litigation ,, T&N is an English corporation which has neither offices nor operations in the United States. From 1934 until Keasbey's dissolution in 1967 T&N beneficially owned first a majority (until 1937) and then 100% of the stock of Keasbey. Until 1951, that stock was held by T&N directly; thereafter it was owned through a Canadian company. Turner & Newall (Overseas), whose sole function was to hold T&N's North American investments. In 1962, Keasbey's assets were sold; it ceased doing business and filed a certificate of dissolu tion which became effective in 1967. Affidavit of Philip L. Graham, Jr. ("Graham Aff.") IIs 3-5. T&N is and has been a defendant or third party defendant in over two thousand lawsuits brought by asbestos workers throughout the United States. Several hundred of those cases were brought on the theory that T&N is liable to plaintiff because it was a shareholder and alleged alter ego of Keasbey, and is therefore somehow responsible for injuries caused by exposure to Keasbey's asbestos products. Many of these complaints and third party complaints expressly allege such liability; others are broad, boilerplate pleadings -- enabling the plaintiff or third party plaintiff to assert a Keasbey theory against T&N after the complaint has been filed. (Graham Aff. Us 6-7) -2- American Mutual is a substantial insurance company, incorporated in Massachusetts, with business in the District of Columbia, in every state and in Puerto Rico and Canada. Although it has no office in this District, American Mutual lists itself in the Washington, D.C. telephone directory as having an office in Towson, Maryland. (Graham Aff. 11 8) Turner & Newall asserts that it is covered by the Keasbey policies on- two principal grounds. First, the poli cies specifically state that they cover, among others, a shareholder of the named insured "acting within the scope of his duties as such." This broad language comprehends the kinds of liabilities asserted against T&N in the asbestos litigation. See Zavota Ocean Accident & Guaranty Corp., 408 F.2d 940, 942-43 (1st Cir. 1969); Sherman v. Ambassador Insurance Co., 670 F.2d 251, 257 (D.C. Cir. 1981). Second, when T&N is sued and is required to defend cases on the theory that it is the "alter ego" of Keasbey, it is in essence being treated (and may ultimately be held liable) as though it were Keasbey. In these circumstances it is entitled to the benefits of Keasbey's insurance coverage. See, e.., Williams v. McAllister Brothers, 534 F.2d 19, 22 (2d Cir. 1976); Cruz v. Ortho Pharmaceutical Corp., 619' F.2d 902 (1st Cir. 1980). SUMMARY OF ARGUMENT Plaintiff is ordinarily entitled to choose the forum in which it will litigate its claims. Only if a defendant can clearly demonstrate that the factors set forth in 28 U.S.C. 1404(a) -- convenience of parties, convenience of witnesses, and the interests of justice -- weigh heavily in favor of a transfer, should such a motion be granted. As will be shown, American Mutual has utterly failed to shoulder this substan tial burden. First, the facts demonstrate that the convenience of the parties will not be served by a transfer. American Mutual, a large corporation with an office in nearby Maryland and doing substantial business in this District, will not be materially inconvenienced by litigating in this forum. On the other hand, retention of the action in this forum will enable T&N to avoid the expense of retaining local counsel and will facilitate coordination of activity with its United States counsel, which has an office in Washington, D.C. containing word processing, telex and telecopier machines for easy communication to T&N directly and through counsel's London office. Such facilities are not readily available to T&N in Philadelphia. Second, there is no evidence that the convenience of witnesses will be served by a transfer. American Mutual has -4- failed to name a single relevant witness located in Pennsylvania, and has not demonstrated that Washington is inconvenient to any witnesses at all. For the most part, moreover, this action involves issues of contract and statutory interpreta tion which are purely legal in nature. Among the few witnesses who may testify at trial would be officials of organizations responsible for drafting the "boiler plate" policy clauses at issue. Such witnesses are presumably scattered throughout the country. Owens-Illinois Inc, v. Aetna Casualty and Surety Co., Civil Action No. 82-89 (D.D.C. March 30, 1982) (Flannery, J.). In addition, witnesses from England will surely find Washington more convenient than Philadelphia for international travel. Third, the interests of justice would not be served by a transfer. While American Mutual argues that this case involves issues of Pennsylvania law, it makes no showing that the principles governing these issues are unique to Pennsylvania, that such issues are difficult to resolve, or that Pennsylvania courts have any particular expertise in the areas involved in this litigation. Because federal courts routinely decide questions involving the laws of _ other states, this argument is entitled to little weight, particularly since the issues here are ones of a general legal nature and involve insurance contract clauses used nationwide. -5- American Mutual's unsupported assertion that Pennsylvania would be a significant source of evidence is also unpersuasive. To T&N's knowledge, no witnesses with information regarding Keasbey's policies reside in Pennsylvania and no relevant documents are located there. American Mutual's farfetched suggestion that to decide this action a court must hear testimony from injured plaintiffs or other witnesses in hundreds of cases throughout the country, does not constitute the necessary showing that the District of Columbia is an oppressive forum in which to litigate. Finally, T&N respectfully submits that the decision of this Court in Owens-Illinois, Inc, v. Aetna Casualty and Surety Co., Civil Action No. 82-89 (D.D.C. March 30, 1982), wherein this Court rejected a motion to transfer a declaratory judgment brought by an asbestos company against an insurer, is fully applicable to this case and is strong precedent for retention of this action in this District. ARGUMENT I. DEFENDANT HAS NOT SUSTAINED ITS HEAVY BURDEN OF PROVING THAT THE CONVENIENCE OF PARTIES AND WITNESSES AND THE INTERESTS OF JUSTICE WOULD BE SERVED BY A TRANSFER OF THIS ACTION TO THE EASTERN DISTRICT OF PENNSYLVANIA ~ Section 1404(a) empowers a district court to trans fer a civil action to another district court "for the con venience of parties and witnesses [and] in the interests of -6- justice." If venue is proper in the transferor district, as it is in this action, the moving party has the burden of establishing that transfer to another forum is "justified by particular circumstances that render the transferor forum inappropriate by reference to the considerations specified in that statute." Starnes v. McGuire, 512 F.2d 918, 925 (D.C. Cir. 1974). See Securities and Exchange Commission v. Savoy Industries, 587 F.2d 1149, 1154 (D.C. Cir. 1978), cert, denied sub nom., Zimmerman v. Securities and Exchange Commission, 440 U.S. 913 (1979). Securities and Exchange Commission v. Hart, [1978] Fed. Sec. L. Rep. (CCH) 11 96,454, at p. 93,644 (D.D.C. 1978) (Flannery, J.). Consistent with this heavy burden on the moving party, a plaintiff's choice of forum is rarely to be disturbed. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947); United States v. Firestone Tire & Rubber Co., 455 F. Supp. 1072, 1078 (D.D.C. 1978); Aiken v. Lustine Chevrolet, Inc., 392 F. Supp. 883, 887 (D.D.C. 1975). Each of the factors enumerated in Section 1404(a) will be discussed below. A. Convenience of the Parties 1. American Mutual's Convenience -- Defendant American Mutual is a huge corporation licensed to do business in the District of Columbia and de riving substantial revenue from that business. It received more than one billion dollars in "direct premiums" nationwide -7- during the period 1976 through 1981, more than $3,000,000 of which is directly attributable to the District of Columbia. (Leslie Aff. H 4) While American Mutual argues that it has not had an office actually in the District of Columbia since 1973 (^d. II 3), it fails to disclose that it does have an office in nearby Towson, Maryland, an hour or less from the courthouse. Indeed, that office advertises in the District of Columbia telephone book and has a "Washington Area" tele phone number. (Graham Aff. II 9) Should it be necessary for an employee or officer of American Mutual to testify at trial (a matter as to which there is substantial doubt given the documentary nature of the issues in this case), that person could as easily continue to carry out his duties from American Mutual's Maryland office as he could from American Mutual's Bryn Mawr office (located about 20 miles outside Philadelphia). Far more important to consider than the relative distance to the courthouse from either Towson or Bryn Mawr, however, is the weakness of this entire line of argument. The mere fact that one or two witnesses may be required to be away from their offices for a day is hardly the kind of hardship that the statute and case law contemplate. This, is not a case requiring extensive testimony from high level employees who cannot be separated even briefly from their duties. It will involve, at most, brief testimony about general company practices twenty and more years ago. Indeed, -8- in the absence of contrary evidence from American Mutual, there is no basis for believing that any potential witness is still an employee of American Mutual -- much less that he is one of such vital importance to the company that he cannot travel to Washington, D.C. for a day's testimony. 2. T&N's Convenience T&N is a large English corporation which does not do business either in Pennsylvania or in Washington, D.C. It is, however, forced to defend asbestos lawsuits brought in both jurisdictions.* T&N's United States counsel in the asbestos litigation, and in this lawsuit, is Sullivan & Cromwell, which has an office in Washington, D.C. but no office in Pennsylvania. T&N thus avoids the expense of retaining local counsel by litigating this action here. Moreover, Sullivan & Cromwell's Washington office contains word processing, telex and telecopier machines compatible with those in the offices of T&N and Sullivan & Cromwell in England, and the staff in the office here is familiar with T&N through involvement in the asbestos litigation over a number of years. This will give T&N relatively prompt and convenient access to information and will allow * American Mutual mistakenly asserts (Def. Mem. at 5) that no claim against T&N is pending in the District of Columbia. But see Catrett v. Johns-Manville Sales Corp., et al., Civil Action No. 80-2232 (D.D.C.). -9- easier transmission of documents, affidavits and other material than would be the case in Pennsylvania. (Graham Aff. Us 11-12) Defendant's argument that because T&N is a foreign plaintiff, its choice of forum is to be treated less seriously than otherwise (Def. Mem. at 17), ignores the convenience to T&N of this forum and obscures the defendant's burden of showing clear hardship to itself or to its own witnesses. See, e.g., Securities and Exchange Commission v. Savoy Indus tries, 587 F.2d at 1155; Securities and Exchange Commission v. Hart, [1978] Fed. Sec. L. Rep. (CCH) at p. 93,645. B. Convenience of the Witnesses As shown in the Graham Affidavit, T&N is not aware of a single individual from the Philadelphia area likely to be called as a trial witness. The principal officers of Keasbey are long since gone and the relevant files are either in England with T&N or in Massachusetts with American Mutual. (Graham Aff. IIs 13-14) There is no one whose convenience is served by litigation in Philadelphia. As to witnesses unconnected to the parties, it should be noted that T&N's action involves, for the most part, issues of interpretation of standard insurance policy language. Such issues are essentially legal in nature; thosp factual inquiries that exist can largely be resolved through documentary evidence. The witnesses most likely -10- to be called to testify at trial on such issues would be "experts or officials of organizations responsible for draft ing 'boilerplate' insurance language, who are presumably dispersed throughout the country." Owens-Illinois, Inc, v. Aetna Casualty and Surety Co., Civil Action No. 82-89 (D.D.C. March 30, 1982), Slip Op. at 1. The convenience of non-party witnesses in this setting is therefore of little significance to a transfer motion. Id. American Mutual's only effort to demonstrate the supposed convenience of Philadelphia is its unsupported asser tion that "it is fair to assume that potential witnesses ... will likely be found" in the Philadelphia area. (Def. Mem. at 18-19, emphasis added). Defendant apparently makes this assumption on the basis that Keasbey offices were located in Pennsylvania twenty years ago and the policies in question were apparently procured there. Plaintiff, however, is not aware of a single relevant Keasbey employee currently located in Pennsylvania (Graham Aff. IIs 13-14, 16) and defendant has not identified either Keasbey or American Mutual witnesses located there, much less indicated what the testimony of any such witnesses might be.* * American Mutual puts forward the name Patricia Light (Leslie Aff. II 7), as though she had some knowledge of the matters here at issue. As set forth in the Graham Affidavit, however, representatives of American Mutual informed counsel for T&N that counsel should not have wasted its time writing to Ms. Light or the Bryn Mawr Office of American Mutual because the matter was one that should have been raised with headquarters in Wakefield, Massachusetts. (Graham Aff. II 14) -11- Even aside from the speculative nature of defen dant's assumptions, the bald assertion that witnesses exist does not satisfy defendant's burden: "If a party has merely made a general allega tion that witnesses will be necessary, without identifying them and indicating what their testimony will be, the application for transfer will be denied." 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 3851, at 271 (1976). Accord, Austin v. Johns- Manville Corp., 524 F. Supp. 1166, 1169 (E.D. Pa. 1981) (denial of motion to transfer because, inter alia, the movants "have not stated with specificity the witnesses who will be inconvenienced by a denial of their motions or other problems in the way of access to proof"); SEC v. Hart, [1978] Fed. Sec. L. Rep. (CCH) 11 96,454, at p. 93,645 (D.D.C. 1978) (motion to transfer denied because, inter alia, "de fendant's description of his witnesses and their testimony is inadequate to sustain his burden concerning convenience to the parties and the witnesses").* C. The Interests of Justice Defendant contends that the interests of justice require transfer of this case to the Eastern District of_ * Defendant's suggestion (Def. Mem. at 19) that testimony is needed on the underlying facts of the asbestos cases against T&N, some of which are pending in Pennsylvania, is discussed at pages 19-20 infra under the heading "The Interests of Justice." Put simply, the possibility that live testimony will be necessary or useful on such issues is speculative, remote and, in any event, not specially linked to Philadelphia. -12- Pennsylvania because Pennsylvania law allegedly will control issues in this action and because Pennsylvania is purportedly a substantial source of proof of facts relevant to the liti gation. Defendant poses (Def. Hem. at 12) three issues allegedly dependent upon Pennsylvania law, and apparently suggests that this Court will have such difficulty dealing with them that a transfer to a federal court in Pennsylvania is required. (Def. Mem. at 11-13) However, "difficulties in construing foreign law are of themselves insufficient to warrant a transfer," Monsanto Co. v. United Gas Pipe Line Co., 360 F. Supp. 1054, 1056 (D.D.C. 1973), aff'd, 489 F.2d 1272 (D.C. Cir. 1974), and "[t]he necessity to apply foreign law is given little weight in reviewing the merits of a motion to transfer," Daily Express, Inc, v. Northern Neck Transfer Corp., 483 F. Supp. 916, 918 (M.D. Pa. 1979). Federal courts sitting in diversity cases routinely decide questions of foreign state law, and the courts in this Cir cuit have considered issues of Pennsylvania law, including insurance law, on numerous occasions. Among these cases is a leading asbestos insurance case.* * E.g., Keene Corp. v. PMA, 1981 F&C Rptr. 712 (D.D.C. 1981), remanded. No. 81-1248 (D.C. Cir. Oct. 1, 1981), aff'd on remand, (D.D.C. Jan. 8, 1982), appeal docketed. No. 82-1131 (D.C. Cir.) (evaluating under Pennsylvania law burden on insured asbestos manufacturing company to *> (Footnote continued on next page) -13- The first issue identified by American Mutual -- whether Pennsylvania law (Pa. Bus. Corp. L. 5 2111) protects an insurance company from suit after the insured is dis solved -- has already been decided against the insurance company by the Pennsylvania Supreme Court. Westinghouse Electric Corp. v. C.J. Goodwin Corp., 432 Pa. 347, 247 A.2d 462, 464 (1968). Furthermore, the issue of survival of insurance coverage depends on a Pennsylvania statute that is based upon Section 105 of the Model Business Corporation Act, which has been adopted with only minor variations by many jurisdictions. See Model Business Corp. Act Annotated 105, 1MI 2-3.03 (West 1971). What is more, the federal courts in the District of Columbia have already dealt with issues arising under Pennsylvania dissolution statutes. Sedgwick v. Beasley, 173 F.2d 918 (D.C. Cir. 1949). The second alleged Pennsylvania law issue identi fied by American Mutual is the issue of proof of terms and (Footnote continued) prove terms of lost insurance policies); Sedgwick v. Beasley, 173 F.2d 918, 919 (D.C. Cir. 1949) (interpreting Pennsylvania statute concerning dissolution of insurance companies); Tobin v. Pennsylvania R. Co., 100 F.2d 435, 437 (D.C. Cir. 1938), cert, denied, 306 U.S. 640 (1939) (applying Pennsylvania law); Potomic Electric Power Co-, v. Westinghouse Electric Corp., 385 F. Supp. 572, 575 (D.D.C. 1974), rev'd without opinion, 527 F.2d 853 (D.C. Cir. 1975) (discussing Pennsylvania law). See also Ocean Science and Engineering, Inc, v. International Geomarine Corp., 312 F. Supp. 825, 830 (D. Del. 1970) (holding that contract clause mandating application of California law did not warrant transfer of action to California). -14- conditions of lost or destroyed insurance policies. Such an issue is not one which necessitates inquiry by a Pennsylvania court; indeed, this Court has already had occasion to study this very issue under Pennsylvania law. Keene Corp. v. Pennsylvania Manufacturers Association, 1981 F&C Rptr. 712 (D.D.C. 1981), remanded. No. 81-1248 (D.C. Cir. Oct. 1, 1981), aff'd on remand, (D.D.C. Jan. 8, 1982), appeal docketed. No. 82-1131 (D.C. Cir.).* The third assertion by American Mutual of a Pennsylvania law question misstates the true issue. American Mutual suggests that there is a question as to whether T&N may claim against American Mutual when "it is no longer possible to obtain a judgment against Keasbey. . . ." (Def. Mem. at 12). Whatever the purported significance of such an issue in a direct action by a Keasbey tort victim against the in surance company,** the question is irrelevant in this action because T&N here asserts that it is an insured entity, not a * See also Insurance Company of North American v. FortyEight Insulations Inc., 451 F. Supp. 1230 (E.D. Mich. 1978), aff'd, 633 F.2d 1212 (6th Cir. 1980), mod. and aff1d, 657 F.2d 814 (1981), cert, denied, 50 U.S.L.W. 3461 (Dec. 8, 1981), in which the district court decided comparable issues of foreign state law. See 451 F. Supp. at 1237-38. ** ' But see Hodgins v. American Mutual Liability Insurance Company, 261 F. Supp. 129 (E.D. Pa. 1966) (permitting direct action under Pennsylvania law where insured is insolvent). -15- claimant against Keasbey. Accordingly, the issue, properly stated, is whether T&N is entitled to coverage under the Keasbey policies when it is sued by virtue of its status as a shareholder or alleged alter ego of Keasbey. This too involves an issue of interpretation of a standard policy clause used by American Mutual and other companies nation wide (the "shareholder-acting-as-such" clause). This clause has been addressed (with results favorable to T&N) by the Court of Appeals for this Circuit and for the First Circuit. Sherman v. Ambassador Insurance Co., 670 F.2d 251, 257-59 (D.C. Cir. 1981); Zavota v. Ocean Accident & Guarantee Corp., 408 F.2d 940, 942-43 (1st Cir. 1969). By contrast, no Pennsylvania court has, to T&N's knowledge, directly inter preted this standard language, a fact arguing against trans fer to that district. See Owens-Illinois, Inc, v. Aetna Casualty and Surety Co., Slip. Op. at 2. In sum, the heart of this action involves inter pretation of standard insurance policy clauses in use across the country. The issue, moreover, is the applicability of that language to underlying cases pending nationwide. Such issues do not turn on principles specific to Pennsylvania, but upon "basic principles governing the interpretation of insurance policies." Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034, 1041 at n.10 (D.C. Cir. 1981), cert. denied, 50 U.S.L.W. 3716 (Mar. 8, 1982); Owens-Illinois, Inc. -16- v. Aetna Casualty and Surety Co., Civil Action 82-89, Slip Op. at 2 (D.D.C. Mar. 30, 1982). The District of Columbia courts are quite familiar with these principles -- more so, in fact, than the Pennsylvania state and federal courts -- and it is therefore in the interests of justice that this action be decided here. See Austin v. Johns-Manville Corp., 524 F. Supp. at 1168. In addition, it would disserve the interests of justice to transfer this action to a district court with a more congested docket than that of this Court. Relative docket congestion and potential speed of resolution are appro priate public interest factors to be considered on a motion to transfer. See, e.q., Securities and Exchange Commission v. Savoy Industries, 587 F.2d at 1156; Owens-Illinois, Inc, v. Aetna, Slip Op. at 2; Securities and Exchange Commission v. Hart, [1978] Fed. Sec. L. Rep. at p. 93,645. The median time for disposition of a civil case by trial in the Eastern District of Pennsylvania in the most recent period reported (twelve months ended June 30, 1981) was nine months, as compared to six months in the District of Columbia. Adminis trative Office of the United States Courts, 1981 Annual Re port of the Director 386, Table C5. Defendant's second argument in support of its claim that the interests of justice warrant a transfer of this case is "the likelihood that Pennsylvania will be a significant -17- source of proof* regarding issues in this litigation. (Def. Mem. at 14.) This claim is wholly unsupported and is without substance. The fact that Keasbey was located in Pennsylvania twenty years ago and that the subject insurance policies were apparently issued and delivered there is irrelevant to the question of whether Pennsylvania would today afford convenient access to proof regarding the terms and conditions of the insurance policies. The only relevant extant Keasbey docu ments of which we are aware are now located at T&N's offices in England. (See Graham Aff. fls 10cf 13) American Mutual has informed T&N that its only documents relating to the insurance coverage of Keasbey were moved some time ago to American Mutual's offices in Massachusetts. (Graham Aff. II 14) To T&N1 s knowledge, no witnesses with information regarding Keasbey's policies reside in Pennsylvania (Graham Aff. IIs 13-16), and American Mutual has identified none. Even assuming arguendo that some as yet unidentified witness or document is in Pennsylvania, that jurisdiction is only a few hours by train or car from the District of Columbia.* * Defendant suggests (Def. Mem. at 14n*) that the court_ files of a twenty year old government antitrust case in Philadelphia may contain some relevant papers. If so, no subpoena power or pending proceeding is required to inspect those files. In fact, our own review of those documents (for defense of the asbestos cases) was commenced with a Freedom of Information Act inquiry ijp Washington. (Graham Aff. H 15). -18- Defendant asserts that Pennsylvania is a signifi cant source of proof because 136 of the 507 Keasbey-related asbestos complaints transmitted to American Mutual (as well as a number of settled suits) were brought in various Pennsylvania courts (Def. Mem. at 14). In fact, the.prin cipal, if not exclusive, sources of information about the nature of those plaintiffs' claims against T&N will be documentary. In the first instance, the pleadings often reveal whether Turner & Newall is sued because of the torts of Keasbey & Mattison or on some other basis. For example, in some cases, the caption shows that Turner & Newall is sued as the "former owner," "alter ego" or "successor" of Keasbey. Examples of such complaints are appended to the Graham Affi davit as Exhibits A, B and C. In other instances, the complaint itself will be ambiguous, and it is only subse quent assertions in plaintiffs' court papers that reveal the fact that T&N is sued on the basis of its connection with Keasbey. An example of such a subsequent court paper is attached as Exhibit E to the Graham Affidavit. (See. Graham Aff. II 7) - In the rare instances where statements of plaintiff rather than assertions of legal theories by plaintiff's coun sel might be relevant, deposition transcripts would surely -19- provide the necessary information.* As national coordina ting counsel for T&N, Sullivan & Cromwell is the principal repository of court papers from T&N's lawsuits around the country. Certainly moving this case to Philadelphia away from Sullivan & Cromwell's office will not advance the flow of information on this subject. In short, most facts in the underlying asbestos suits are irrelevant to the rights and obligations created by the insurance policies issued by American Mutual to Keasbey.** It will be a rare occasion indeed when injured plaintiffs or their lawyers are required to testify on these insurance claims, and there is no basis for concluding that such a witness is significantly more likely to be in Philadelphia than in any other state in which claims are pending. Finally, defendant charges that T&N chose this forum solely to take advantage of the decision in Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034 * The Court of Appeals for this Circuit has specifically noted that depositions and affidavits are the preferable method for developing any necessary information not already in the record. "Keene Corp., 667 F.2d at 1052 n.41. ** Cf. Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034, 1040 (D.C. Cir. 1981), cert. denied, 50 U.S.L.W. 3716 (Mar. 2, 1982) (declaratory judgment action by asbestos company against insurer held justici able despite defendant's claim that the rights and obligations created by the policies could not be deter mined without consideration of the facts of each under lying tort suit). -20- (D.C. Cir. 1981), cert, denied, 50 U.S.L.W. 3716 (Mar. 2 1982). (Def. Mem. at 15n.*) In addition to being untrue, this allegation does nothing to satisfy American Mutual's burden of showing that the District of Columbia is sig nificantly less convenient than the Eastern District of Pennsylvania. See Securities and Exchange Commission v. Savoy Industries, 587 F.2d at 1154. Indeed, defendant's failure to make any such showing strongly suggests that it is defendant who is shopping for a forum -- any forum other than the. one in which Keene was decided. In any event, a plaintiff is not prohibited from seeking a forum with favorable law as long as the chosen forum is not oppressively inconvenient to defendants. See Austin v. Johns-Manville Corp., 524 F. Supp. 1166, 1168 (E.D. Pa. 1981); Cheeseman v. Carey, 485 F. Supp. 203, 215 (S.D.N.Y.), remanded on other grounds, 623 F.2d 1387 (2d Cir. 1980). Indeed, the United States Supreme Court held in Van Dusen v. Barrack, 376 U.S. 612 (1964) that if a defendant's 1404(a) motion to transfer is granted, the law of the transferor court should apply. In doing so, the Court recognized that a plaintiff is entitled to choose a forum with favorable law and should not by virtue of a transfer motion lose any advantage gained from that choice. 376 U.S. at 635.* * While Van Dusen addressed the issue in terms of state law under Erie R.' Co. v. Tompkins, 304 U.S. 64 (1938), the Court's recognition that a plaintiff may choose a forum with favorable law and be protected in that choice is of broader application. -21- II. THIS COURT'S DECISION IN OWENS-ILLINOIS, INC. V. AETNA CASUALTY & SURETY CO. IS FULLY APPLICABLE TO THE FACTS OF THIS CASE On March 30, 1982, this Court rejected a defendant's 1404(a) motion to transfer a declaratory judgment brought by an asbestos company seeking a declaration of its rights to coverage in multi-state asbestos ligigation under standard insurance policies issued by the defendant insurer. As demon strated below, the reasons given by this Court in Owens-Illinois for refusing transfer are fully apposite to the facts of this case: Reasons Given in OwensIllinois for Refusing Transfer_____________________ Facts of This Case "The litigants are two large corporations who conduct extensive business in the District; neither party will be materially inconvenienced if suit proceeds in this forum." Slip Op. at 1. Both T&N and American Mutual are large corporations (see pp. 3, 7, 9 supra). American Mutual conducts extensive business in the District (pp. 3, 7-8 supra) and will not be materially inconvenienced if suit proceeds in this forum (pp. 7-9, supra). While it is true that no forum is entirely convenient for this foreign plaintiff, it is clear that defendant may not assert plaintiff's inconvenience as a reason for transfer. See, .., American Can Co. v7 Crown Cork & Seal Co., 433 F. Supp. 333, 338 (E.D. Wis. 1977) (and cases cited therein). Moreover, this District is more convenient for plaintiff than the proposed transferee District. (See pp. 9-10, supra). -22- Reasons Given in OwensIllinois for Refusing Transfer Facts of This Case "Further, defendant has not demonstrated that suit in the District will significantly inconvenience potential witnesses." Slip Op. at 1. "It appears that many of the underlying issues are purely legal in nature and that the re sidual factual inquiries can be largely resolved through documentary evidence. In addition, many of those witnesses who may be called are experts or officials of organizations responsible for drafting 'boiler-plate' language who are presumably dispersed throughout the country." Slip Op. at 1. "It does not at this stage appear that the legal issues presented would most effectively and efficiently be resolved by a court familiar with state law. Ohio has no cases bearing directly on the issues before the Court. Further, plaintiff has not demonstrated that Ohio insurance law deviates from general insurance jurisprudence in important respects or American Mutual has totally failed to identify any wit nesses located in Pennsylvania or elsewhere, let alpne ones who would be significantly inconvenienced by trial in the District of Columbia. (See p. 10-12, 17-20, supra). The heart of this case is the interpretation of standard policy clauses, such as the "bodily injury" clause at issue in Keene and "shareholder-acting-as-such" clause discussed in Sherman v. Ambassador In surance Co., 670 F.2d 251, 255-59 (D.C. Cir. 1981). Thus trial witnesses, if any, would likely be those officials, of presumably diverse residence, responsible for the "boiler plate" provisions at issue here. (See pp. 10-11, 16, supra). Other than one case -- which squarely rebuts one of defen dant's substantive arguments against liability (see p. 14, supra) -- Pennsylvania has no cases bearing directly on the issues in this action. In contrast, courts in this District are quite experienced in dealing with such questions (see pp. 14-17, supra). "American Mutual fails even to suggest that Pennsylvania law deviates from general insurance juris prudence or contains nuances unique to that jurisdiction. -23- Reasons Given in Owens- Illinois for Refusing Transfer ___ Facts of This Case contains nuances unique to that jurisdiction". Slip Op. at 2 (citations omitted). "Conversely, Keene Corp. v. Insurance Co. of North America, No. 81-1179 (D.C. Cir. October 1, 1981) , cert, denied, 50 U.S.L.W. 3711-12 (March 8, 1982) strongly suggests that the issues before the court will not turn on legal principles to Ohio but, rather, the court will primarily be guided by 'basic princi ples governing the inter pretation of insurance policies.' I<3., slip op. at 10-11." Slip Op. at 2. "In fact, the 'interests of justice' may suffer if the case is transfered. It is undis puted that the docket in the District of Columbia is less congested than that in the Northern District of Ohio and that there is only one active judge sitting on that court. Thus, the com parative speed of resolu tion of the dispute favors retaining the case in this jurisdiction." Slip Op. at 2. Because the crucial issues in this case involve the inter pretation of standard insurance policies, Keene's observation that such principles are not unique to the law of any particular state applies here. Even the issues raised by American Mutual concerning the effect of Pennsylvania's dissolution statute (Def. Mem. at 3, 12) are not legal principles specific to Pennsylvania, inasmuch as the dissolution statute is based on a section of the Model Corporation Law which has been adopted in a great many jurisdictions. (See p. 14, supra). While there are numerous active judges sitting in the Eastern District of Pennsylvania, the docket in the District of Columbia is less congested than in the Eastern District of Pennsylvania. (See p. 17, supra). -24- Reasons Given in OwensIllinois for Refusing Transfer Facts of This Case "Finally, because the case involves the relative responsibility of two interstate corpo rate entities for damage suits filed throughout the United States, it is inaccurate to characterize the dispute as an Ohio controversy. It is actually a dispute that spills over state bound aries in terms of interest and effect and, as such, it can just as appropri ately proceed in the District of Columbia as in Ohio." Slip Op. at 3. Like Owens-Illinois, this case is intended to resolve the issue of liability for hundreds of asbestos damage cases pending across the country. It is no more a Pennsylvania case than Owens-Illinois was an Ohio case. CONCLUSION For the foregoing reasons, American Mutual's motion pursuant to 28 U.S.C. 1404(a) to transfer this action to the Eastern District of Pennsylvania should be denied. Dated: July 19, 1982 Respectfully submitted, SULLIVAN & CROMWELL 1775 Pennsylvania Avenue Washington, D.C. 20006 (202) 857-1000 -25- STATE OF NEW YORK ) :ss.: COUNTY OF NEW YORK) AFFIDAVIT OF SERVICE MARK F. ROSENBERG, being duly sworn, deposes and says that on July 19, 1982, I served a copy of Turner & Newall PLC's Statement of Points and Authorities In Opposi tion To Defendant's Motion Pursuant To 28 U.S.C. 1404(a) To Transfer This Case To The District Court For The Eastern District of Pennsylvania and the Affidavit of Philip L. Graham, Jr., In Opposition to Defendant's Motion to Transfer, and Exhibits appended thereto, personally upon Siff & Newman P.C., Attorneys for Defendant American Mutual Liability Insurance Company, 233 Broadway, New York, New York 10279, and by United States mail upon Cole & Corette, Attorneys for Defendant American Mutual Liability Insurance Company, 1200 17th Street, N.W., Washington D.C. 20036. Sworn to before me this 19th day of July, 1982 YN Vi \ v. \V_v-v Notary Publi 51WEY KOENIG .NOTARY PUBLIC. Stale of New York, l Residing in Bronx County / 1 f froflx Co. Clk's No. 03-46409427 Certificate Filed in New York Co. Clk's ision Expires March 30, 1983 MARK F. ROSENBERG-s^ UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TURNER & NEWALL PLC Plaintiff v AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Defendant x Civil Action No. 82-1339 ' (Judge Flannery) x AFFIDAVIT OF PHILIP L. GRAHAM, JR. IN OPPOSITION TO DEFENDANT'S MOTION TO TRANSFER STATE OF NEW YORK ) : COUNTY OF NEW YORK) ss. : Philip L. Graham, Jr., being duly sworn, deposes and says: 1. I am a member of the Bar of the State of New York and of the law firm of Sullivan & Cromwell, counsel for plaintiff Turner & Newall PLC ("T&N"). I have been admitted to practice before this Court with respect to the present action. 2. Since 1977 I have been the lawyer at Sullivan SjCromwell responsible for coordinating the defense of T&N in all of the asbestos-related litigation brought against it throughout the United States. As a result, I have personal knowledge of the cases that underlie the present insurance claims, of the location of documents and witnesses, and of numerous other aspects of the asbestos litigation. On that basis I set forth below some of the factual background upon which T&N relies in the memorandum being submitted to this Court in opposition to defendant's motion to transfer. 3. T&N is a large English corporation; however, it has no offices or operations in the United States. From 1934 until 1967 T&N owned stock in Keasbey & Mattison Company, a Pennsylvania corporation with factories in Pennsylvania, Missouri and California. 4. From 1934 until 1937 T&N owned a majority of the stock of Keasbey; from 1937 until the dissolution of Keasbey, T&N owned beneficially 100% of Keasbey's stock. During that period, T&N owned Keasbey's stock directly until 1951. Thereafter, the stock was owned through a Canadian company, Turner & Newall (Overseas). The sole function of Turner & Newall (Overseas) was to hold T&N's North American investments. At all times T&N owned 100% of the stock of Turner & Newall (Overseas). 5. In 1962 Keasbey's assets were sold to several operating companies in the United States unrelated to T&N. Keasbey thereupon ceased doing business and filed a certifi cate of dissolution. The dissolution became finally effec tive in 1967. 6. T&N has been sued in over two thousand cases brought by asbestos workers throughout the United States -2- against most of the asbestos industry. Several hundred of these cases were brought against T&N by plaintiffs and third party plaintiffs on the theory that T&N is liable to plaintiff because it was a shareholder and/or the alleged alter ego of Keasbey. Claimants in these cases take the position that TSN is responsible for injuries caused by exposure to asbestos products manufactured, sold or distributed by Keasbey. 7. Claims against T&N with respect to Keasbey take several forms. In most of the more recent cases, allegations regarding Keasbey are explicit. Attached as Exhibits A, B and C are examples of typical assertions of liability on account of the acts of Keasbey. Exhibit A alleges that T&N is the "former owner" of Keasbey, Exhibit B alleges that T&N is the "alter ego" of Keasbey, and Exhibit C alleges that T&N is the "successor" to Keasbey. Other complaints, such as Exhibit D, consist of boilerplate pleadings that do not on their face show a connection between the lawsuit against T&N and the connection between T&N and Keasbey. In such instances, subsequent court papers may reveal that plaintiff has asserted a claim against T&N on account of the torts of Keasbey. Attached as Exhibit E is an example of such an assertion, relating to the boilerplate complaint attached as Exhibit D. . 8. American Mutual is a substantial insurance company that is incorporated in Massachusetts and does business in the District of Columbia, in every state and -3- in Puerto Rico and Canada. Attached as Exhibit F is a copy of the relevant portion of Moody's Bank and Finance Manual showing pertinent financial information about American Mutual as well as the fact that it operates throughout the country. 9. Although American Mutual has stated that it has no office in this District, it advertises in the yellow pages of the Washington, D.C. telephone directory and lists itself both in the yellow pages and white pages of this directory as having an office in Towson, Maryland with a "Washington Area" telephone number. Attached as Exhibit G is a copy of these telephone listings. I am informed that Towson, Maryland is an hour or less by car from the courthouse. 10. Prior to commencing this action T&N conducted an extensive investigation, including converations with American Mutual, to determine the extent of coverage that Keasbey had under policies issued by defendant. Although the details of our case on the merits are not relevant to this motion, it may be useful to set out the basis on which we conclude that standard form insurance policies were issued to Keasbey over a period of many years. a. Prior to the commencement of this litigation American Mutual was apparently sued * by injured asbestos worker plaintiffs. In that series of actions, the first of which -4- is entitled Brandon, et ux. v. American Mutual Liability Insurance Company, et al.. No. 1-387-80 (Circuit Court, Knox County, Tennessee), American Mutual admitted in its court papers that it was "the insurer of Keasbey & Mattison for a period from approximately 1946 through 1965. Coverage was written for products liability, comprehensive general liability and liability." American Mutual attached to its papers in that action standard form insurance policies that it said had been issued to Keasbey during the time period indicated. b. American Mutual supplied to T&N index cards purportedly showing each policy issued by American Mutual to Keasbey along with the effective dates of those policies. It was from this set of cards that T&N compiled Exhibit A to plaintiff's complaint, which organizes all the policies listed by prefix and places them in chronological order. c. For the later years, unequivocal business records of Keasbey & Mattison now in the possession of Turner & Newall in England reflect the existence of products liability coverage. An example of such records, showing products liability in the amount of $250,000 per -5- person with an aggregate limit of $500,000 under the policy is attached hereto as Exhibit H. 11. Sullivan & Cromwell has been nationwide coordinating counsel for T&N throughout T&N's involvement in the asbestos litigation. For a substantial portion of that period, lawyers responsible for T&N's defense were located in Sullivan & Cromwell's Washington office. Although those lawyers are no longer with the firm, the staff of our office in Washington is fully familiar with the litigation and the best means of communicating with Turner & Newall in England, both directly and by courier through Sullivan & Cromwell's London office. Teletype facilities in our offices allow easy direct connection with Turner & Newall's offices from our offices here. In addition, Sullivan & Cromwell has compu terized typing facilities that permit briefs, affidavits and other documents typed in Washington to be typed automatically on compatible equipment in our London office. From there, transmission of physical documents to Turner & Newall's headquarters is quite simple. Rapifax communications are similarly available for transatlantic photocopying of rele vant documents. A paralegal in our Washington office has been working on many aspects of the T&N asbestos cases for several years. 12. Sullivan & Cromwell has no office in Philadelphia and, although -- at a price -- facilities of the kind described above are probably available, the cost to T&N will undoubtedly be higher. This is a major consideration -6- given the ever-increasing cost of the asbestos litigation and the fact that T&N has incurred very substantial losses worldwide for several years. 13. Defendant suggests that Philadelphia is a logical forum for this litigation because Keasbey & Mattison operated there. Our investigations have shown, however, that there is nothing to be gained by conducting this litigation in Philadelphia. Keasbey's assets were all sold in 1962 and were absorbed into ongoing businesses unrelated to T&N. None of the principal officers of Keasbey at the time of its dissolution remains in Philadelphia. The president of Keasbey, for example, moved to California, the next senior officer moved to Montreal and the corporate secretary moved to Baltimore. We are not aware of any Keasbey files located anywhere in Philadelphia. The only relevant extant Keasbey documents of which we are aware are now located at T&N's offices in England. 14. Several years ago we did write to one Patricia Light, at the Bryn Mawr office of American Mutual, seeking information about the whereabouts of Keasbey policies. Ms. Light did not supply any information and, in subsequent conversations with American Mutual's internal counsel and claims personnel, I was told that it had been foolish to write about such a matter to Ms. Light rather than addressing m^; questions to American Mutual at its corporate headquarters in Massachusetts. In the course of those same meetings I was also told by Mr. Lake, Assistant Vice President of American -7- -- Mutual, and Mr. Brady, Assistant Vice President and General Counsel of American Mutual, that no pertinent documents were located in Philadelphia and that its only documents relating to insurance coverage of Keasbey were moved some time ago to American Mutual's offices in Massachusetts. Indeed, Lake produced from the Wakefield, Massachusetts files of American Mutual the index cards from which T&N compiled Exhibit A to plaintiff's complaint. Lake represented that the only other pertinent documents still in existence were copies of standard form policies in effect during the relevant time periods. He subsequently supplied me with copies of those policies from his office in Wakefield, Massachusetts. 15. Like American Mutual, we thought it possible that relevant documents would be found in the court files re maining from an antitrust action brought by the United States against Johns-Manville and Keasbey many years ago. We sought those files first by a Freedom of Information Act inquiry in Washington and subsequently by a supplementary search of files in the courthouse in Philadelphia. We found nothing of relevance to the insurance litigation, and doubt that American Mutual will fare any better. In any event, litigation need not be pending in Pennsylvania in order for American Mutual's New York counsel to"visit the Philadelphia courthouse to make that inspection. -8- 16. Despite months of investigation, we are not aware of a single witness likely to testify at trial who lives in Pennsylvania or of a single document likely to be offered in evidence that is located at present in Pennsylvania. Significantly, American Mutual names no such witness and identifies no such document despite its ..1 -9- /ViSritlA. PlePOn^T FerR. o II. 13 H.'SURAHCS -- PHYSICAL ASSET'S ACT C-5EEHAL ! j Eeccripticn Coverage us . of 3/31/61 Prooiuns Approx. Annual Per Current Data Claias - Incurred Paid and Pending 4/1/60- - 3/31/61. (unless othorvise Indicated) j 1. ` i Fins PROPERTY DAKSC-Z-All Pleats Govern: Blanket Coverage-Bldg, end Coatents-Fira, Lightning, Sprinkler Leakage, Extended Coverage, Riot aad Civil Cosnotion sod Vauaeiisn:, Earthquake Benese-Vcrta Clara Plant onlyLLcit of Liability Carrier: Factory Insurance f.aBOciiticn Vote: "'anas Plant Builders' Dial: Policy cancelled 2/23/61 cad coverage transferred to Blanket Policies $ 37,260,000 3,000,000 $ 29,200 $ 635 2. F3S 2CECS3SS IirsEF.RUPTIOfl-All C- ' ' Plants Lovers: Sure perils as'Fire ' i Property Fsnsge. Earthquake . * Dcrir-g e-Santa Clcra Plant only Linit of Liability Carrier: Factory Insurance Assoaiaticn 7,020,700 2,470,COO 5,S8o 0 3. FIFE FSOPEair EAM/diE-Contents Brand Offices Cavers: Fire, Lightning, Extended Coverage, Sprinkler Laatuse Carrier: Eostou Inouranca Co. i 4. PIPE PROPERTl' D.'JL'EE-Buildings Rev Orlecas, Lu. Plant Insures ikas-icen liarise Corp. loss payable to Efi Co. - covers: Fire, Lightning, Extended j Covereje Carrier: Fire Association of j Philadelphia 26,000 252,000 55 6,050 (Paid by Tenant) i 5. pomp AID MACKEEfit 5,250 . ! Covers: The Ccrrnay is insured I lor r. less fron cn accident defined j . in tie policy to cn object insured j . whila connected or in use for: 1. l~r.a cn the Ccnpaay'6 property j 2. Erpscitiog Expenses for tea- | pcrsryrepairs not to exceed 1000 j 3, Frcpertp Dexcge Liability for j loss : propertyofothers 1 -i. Bcdily Injury Liability ` 5* Dceir.asa Interruption resulting 24,000=a::. free boilers cad uafirtd Daily Indcrnity i pressure' vessels 3,600,000 Limit of Loss Fer Accident Objects secured ere: 1. Boilers 2. Vo fired Pressure Vessels 3- TrF-JC-Geoeixiors of 1CC3 1CV capacity or rare 0 .0 13,250 :` T>ssc Vption Coverage a* of 3/31/61 9. AI3T0 EIS0SAKC2 (Coat'd) Bodily Injury Liability Linits per person Bodily Injury lability Liait3 per accident Property Deasge Liability Halts per accident Carrier: The Aetna Casualty and Surety Company $ 250,000 500,000 25,000 10. COHPREnSnSIVS GSE3AL LIABHITf Covers: Tee Company's legal liability for: . 1. Bodily injury, sickness or disease including death. 2. Dccoges because of injury to or destruction of property including loss of use thereof. A. Eezaros Covered are: 1. Premises Operations 2. Elevators 3. Independent Contractors Operations j~.. 1. Products (__/ 5 Contractual . 6. Malpractice of nurse 7- Company Sponsored Athletic Genes fer Employees B. Limits of Liability 1. Bodily Injury per person " per accident aggregate products 2. Property Eonage per occurrence aggregate operations aggregate protective aggregate products aggregate contractual Carrier: American Mutual Licbillty Insurance Company 250,000 500,000 500,000 50,000 300,000 300,000 300,000 300,000 ii,A-'<o:r-ov.TEzi aecpjst lusuxts Jovarn: ?he Ccrpany:s legal liability for Bodily Injury and Property Damage to otters resulting fron the operation or use of e ncn-O-uned aircraft bavins Dot more than 5 passenger scats. Limit of liability resulting fren any and all occurrences or accidents 2,000,000 Medical Paymonis-Kexiaum eech passenger (not crev) 2,500 Medical Paymante-Kaxinum eech cccidcnt 12,500 Admitted Liability-Kaninum each pasoengcr 50,000 Admitted Liability-.'irdcun each accident 250,000 Carrier: Insurance Company of 1,'orth /.Tcrica Operators of Cenuaay airplane carry licbillty insurance protecting their interest or. '.fill S3 1ZJ-I. Kaxlnus single Unit per accident 2,000,000 Premiums Approx. Annual Per Current .Data Clnimn - Incurred Paid and rar.diuc k/l/aO - 3/3I/0I (unless otbervice indicated) $$ t,908 2,?95 (Vl/60 - 1/1/61,' 1,1*00 o AMERICAS I--AMERICAN P I'.Ji* i 7* tif lx * DISTRICT Of COLUMBIA a Amr.can ?'ter Centrals ln< Ar.a*ic?nC--cmtnc Assn I'll v j: A me* -cnC-n-:*:iej-:U*-3n Amer-can V "tra! l--c Tlln C:m` N.v- 265*970? AMERICAN MINI STORAGE CCS? Ar-<- tar.2'e.dat":ic4si:c.a:.on Ame''Cn Irtffr Grc.C i::5C*r-i.NA --........................... S61-47C0 American t-terr-j-.ionaitneurtrieslne :;;:t;Ai.\A................................ E57-OC44 Arrftcmf rf.-jscnii ?urtrr P*.at? ..................................... 293-3276 AMERICAN LEGION LAP0NAL AmHEerAicOaCnULAeRc-TvsaR'iSvt lia`.:l.-*.asnSg:s.Cvo..u..n..c.i.l... 44-x^r7rci ea-rs. tHin-Si-.are. Lina--c.asv- e.s.lr.-.c....... 361*2700 547-4646 4S9-6020 *a,rv.: .......... Fair'ai Tel No - -471*1497 Amenca.nMir.ingCsnjreiS ltC?*SrN.V J6t*2530 American Minor.:) Review ?C7i a S: *.v. ** 633-3363 America* r.'-coite Home Towns Inc !S64P-.*S: .-'Sc5 --:-............................. 321-??6 Amfca-t-tcncc'i-pCc ?*. * S'Ne................ 769-0911 Ar-c- cj-OttycsatN.cNcs: sal AMcra'.tn 4 2 Sii.jt--**.... APca;e <pess Carriers Asscc ::;r- s ; *..y............... Ari'.ti v-.ei.cLs Co AMF^rCiMST-r.SiTICMiLKr-fr-A CAR 262-*.*"c"s'' Ci< American lrttr-a:.c*al Traing U^'ICE* Corporate *< 15 j-;5` *?................... A-W'ican I* '* fto-a! TraJ.r.j Group 737-2380 ............................................ 223-31SS AMERICAN IN7IRFLEX CGRP 53=31 -243-4769 imericin^me-!|r'C S2:*SaAvNW * - 629-6330 AMERICAS IRON AND STEEL fNSTiTUTE-- Kr- ii-'o--jrc- UsieC trw* &*:- --------- <52-7160 American leoresy Fi..-da: cn $ American L.tra-y 4sj-t 1.1 ,.,i-,L,->C<. s * * 547-4440 American life Inii.rc.'Ue < tsui:cp. ::-!<S'V.v..................................................S62-40C0 American Lite Insurance Ccvncil 1*50<S:n#................................................ 662-4380 AmericanLiteLobOylncabSrs.-yCt& A.-nericanlrtNcInc 5221 V*nro^,ar3. 546*5550 * jn-5871 - 927-4M9 AMERICAN MORTGAGE INSURANCE CC levies* As4`:LJe................... 2S6-C39C American Mortgage investment Inc-- 5:c:wt;jns:r A. v.v...................................651-2150 I2MW-s:*m.*AVw.....................................651-2155 2!t a- *g:an - ..a .'a -ta*................................631-2160 0tc63HA-!:ng:5nB-<f*.r?a*...................... 573-779? 57L1 A:-e*:own As Came So-r.ss - - - - - - - - 449*3788 American Mosaic Companylnc 3713 V.-estS: Uncc.fr..................................... JS6-2120 American Mote* Printers Inc ClCAa-iaiA.N.Y........................................ 829-7250 PUNT PRODUCTS Cj AME^'lcVNpAif.TlNG & 93: DtCCSATlNGlj-'-^r.i.Aici.............. M9Arne car. r j ace Teen Center 22 Z v* - - * Amcr-can Pa.eat.nt Educatitnal Foun.iitisnj,;: s a. s.v................... - AmcncanPaiut:n< Ebucat.dnal Fe.msalicn 52ICs A. s.v * Amer can Paper institute 1:19 vast < r..v mrrt'ctn Pj-en.ts C?rm.r.*e lOMlir.S* nw-- CsinT!>ra lu*s Srxw Accountm; .................................................<52-7153 Co^ni-^jipjrj ...v..-..--..... 452-7122 CntQiWaie-vats - 452-7267 htwio.................................................. <52*7214 .anon..........................................................<52-7115 l^er-'s..............-....................... <52-7231 -*"vv-xtEnergy*-*---- <52-7271 Gfur^r:Roijcnt - ------------ <52-7230 Jnowjtnai aeJjnoro- <$2-7210 Internaw-a17rc* *................................ <$2-7130 Wanulactvnng Andnesaaro -?* -- - <52-7265 u*rei.-: Ans 6wndmCorwrwct * * <52-7176 Memae-v-ic*---*---***---*--** <52-7160 Slawc...................................................... <52-7219 Pwotior*' Comn.-ees-- 6arRttci-1->,^vM^>njucen----------- 4S2-7233 U<9< O-f-'e:*'Ime* oehrasucert ..... <$2-726? Seemiei* ie*:,*.-. Tfc.-e 452-726S 6V--S-.e-f-c.;oce.................................. 4S2-71S4 S:*r-.e<ts:m- tcu<*<s <S2-72S2 y.*f"n\ T*ou*e-P-ocuca ................ *....... ................... 4C2-72S2 Stee- ----- ......-------- -- 452-72SS S t-- ** Sr-vr--*' S:>>rt^:tn --------- 452-/;S5 T r. w i A-ac.cx .......... 452-7176 Toc.5.h-->-rr^.-3-.................................... 452-7252 ^-Somers ............. . CT-'.em-- ^o^r-................................................. <52-7146 Ue-:.i. . te-tindr-eeure- -- <52-713? aw'tte a-4 aeo.s^ v.ce ..................................................... <52-7140 2ow<-t*i AnC S^ei*.-? - <52-7143 c/nerican Iron noiu Inc 22=1 keei-rt-i. vv-rnsa-g 277-8444 AMERICAN LUBRICANTS CO 3C10 Ln Pis........................... A.VERICAN LUMBER COSP trt--wf w: srom wasn>-j*,e- Meroag^an American MotoNol Supply Corporation 13<6 Cow Avfcw.......................................... 293*2785 American Motorist Insurance Agency IMSUttlt.tNfN................................... 536*2222 American Motorist Insurance Agency 7320 Little Aivfr lnmpikeAnn*ns*e- 750-0922 He Charge To Ca ing Part American Motorists ins Coc^m oeot Sia Oi'trilv By........................ nterprue 1-3084 5610 v/-*cA .\w.......................................... 966-8019 American Lumber Standards Committee Nignts Sundays 6 hoi-cays Call- ------- ..... 785-4442 20C1G Cf.ntjrr ?nrd ...... .......................... 972-1700 American Movers Conference American Lung Assoc 972$ Main SMa>rti -- 593-6504 L117!9?iNAri............................................. 524-5440 American Lung Aasocia nen American Muffler 2117 8:acnt?*; aoK- - * S32-4C00 Gcuemmen:AeationC*r,ce lo29 4$tNW 6S9-4W0 American Museum Case Co *61 h$:nw - - - 842*1943 r*r?onji h-MOvare-i 174C 6-oacwa* American Musum Cons^ucuon Co V-YoritCmNewYxr........................212 245-8000 *61HStmv.................................................... 842-1511 Recignai hme 4a smg Center Amencan Music Boosters Assn 9737 Uair5;7ulaa............................. ....... 591-6504 6709Pa-r> In A^i WasningtonTfi Vo * * * - - 293*5853 D-rrtctO*Co.'v--ti4 1511 r.$:Nw - * - 783-5664 American Mutual Corporation AMERICAN LUTrrERAN CHURCH 7215-AYcrt fid EASTERN DISTRICT nis r/.s A. Sr.n - * * 652*1338 Toiler..... Washington Area Tel No- 621-1790 American Macnm.e Tool Distnejtors Association i7T2 . l- 5--- AMERICAN MACMN5RY& SUPPLY 654-1200 AMERICAN MUTUA11NSURANCE COMPANIES 721S-* t>w"........... Washington Area Tel No--623-1790 CO Lie* f.rs: S: S............................... 455-7533 r>c.*^ Sw-Cars Ho<ars Ca......................... .... American Macr.iftis! *-es: 5!oo * 624*7500 American Mutual InsuranceCo Cl Boston American Macitme nc- fct.u --- 244*8678 7115-Atsn?c American Ma-'f? L sa C:rpcruon 7c*sor............ Wasfincson Area Tet So- - 62i -1790 7777 Leest.r? 1 s C.-............................. 893*2340 American Mutual Liac-iiity insurance A.ne''Can Mar.tgemen: Associations Comeanj 7215*4. i5-Ss iSCOrStL*............................................... 223*5856 low^c- - - * - Watnmston Area Tel ho* 621 1793 Ame-icaYi Manase^ent & Erg-neenng Co ** r-cs-inc f AMERICAN NATIONAL INSURANCE ?e*f'Ji *ee*it "1st ...!.... V'iis7ing:on Tel No* - 625* 1316 immejn Mj.m :e--ent Syitcms Co 6--:: .rr.a- neaC k., O.on ...................S39-740O American hat.onai !nsuranctCo<npan<^- ................................................... 393-6521 Cc--:.r-a:iopC's:r.aCn>ce Li^ntanrv-- AMERICAN MANAGEMENT SYSTEMS H W o sen Cisl mgr INC-- 121K /.jki 5: A.<i................ * ------- 545*1355 Am6enrfcatn.'P*aMrkhmsHonDj s-eue AwociaL--o-.-n- American Parklme Ccrp 20CCcr-:jtn a nw.............................- Amencan Pjrklme Inc 721 lOtr.e.},* v;h DcW^l................... Anver.can Pirklintlnc 721 ICmStNW - - - - American Peace Sot 4C0C A~mr*e va* * - - AMERICAN PECC0 C0RP A*a*tuttVa. Fairfax?tlNo' AMERICAN PERSONNEL AND GUIDANCT ASSOCIATION 52:iietli.fPVfnisCh - 820- AMERICAN PERSONNELSERVICES erx*me; i?Ci <StNW - --- 331 American Personnel Temporaries 331 AMERICAN PETROLEUM INSTTTUTE American Petrjieum Refiners Aasaciaiicn 1232 iir-i<- km- ........ Americ jn PharmaceuticalAssn <57 331 Ame-itan Ptverrr.aceuticelAssn Founotn 2215 Co^r* Ms*. Mv............. .. ....... .. American P-i'i-pmes Enterprises 62? 625 ameri^Vphotoccpyoe 882 W:;.A4S-AH3IN<Gr'TriO.eN-w-^erirs - - -------- Ame-.can Pnyvtil Fitness Ca Inc Ame-can Pnyucat TherapyAssn America* Physical Therepy Association P*s:e Fracnce Section American Israe1 Put Attairj Comm *NC*c5:................................................. 633-2256 -mencar Jamtsmel Window I Building Ceaning Cl 9-3r\S:Nw* .......... - 4S2-7C-00 -m*nc an Japanese Trade Committee 1/77 * Sells: Art...................................... Ml-6000 ikcuwnnr.;........... .. ' 841-6040 ------- 841*6201 ------- 841-6065 ^L7s*S:sw.......................... -............... 296-4464 .... 841-6100 '.mec'ean j*wrvh Committee **4S Co.-OLlr'Ce'i-f--- BlfilitrEtsw................................... 296*6757 -mencanvewtinCongress 1522* St h*-- - 635-3999 Ccmouter Oc^-ato-n ------- ------- 841-6200 -------- 841-6066 nericanucurra.'cl Internet! Law tejr.n^i$s'ar-. ......... ------- 841-6255 r:ani;sn--->................. me'icanJourael Cl Nuning The 265-4313 AOieTs;ii<a>rr.smtrtaniaieMn o: LiTKA.A.o.*e*............. 884411--66220030 Nan Press d<s............................................. .nencenJoumalOtPsychiitry ------------1 347-0721 . A1K7S7C7 oKmAorru.tteSriGAunttu.-..M..-.c.r.o.li.-r.v.--.............841-6205 1/W1*oiS:na........ .............--------J97-4918 Ooerauona.-...................................................S41-620S .MER5CAN JOURNEYS INC - - - - - - Uar.etirvg---.............................................. 841-60S5 2.T7Sw*i*>l....................... -................. 549-6125 Ame/>car Manor CSina 6 Crystal MFRICANJUSK-C:**?**................ 232-5762 ST7e remcn 8: Sc; ..................... 585-1919 vVcRlCAS KIDNEY FUK0 ........... American Mar.utactunng Co 7215VMIA. 6er........................................ 9S6-1444 S^loArcmofeSsLanoor--............. ------- 322-1000 mefican Seiner Mrg Co.Inc American Manume Assn lit? r.St ------- 331-1562 wrr-4.-3;erMs....................................... 301876-2:59 American Maritime 0*fictrs Service mencanltbei Couriers IQlOVt AvNW - - - 783-1S77 aS6\S;SW................................................ - 554-9407 -mericin Laoorfcfiuca-onCenter Amemcan Market-ne Assooation Of 17<7Can"A.nw............. 337-6753 WtsSmgton 9tD l?r-.S: nw * 6S9-5322 MERICANLtFRANCE . Amencan Massame Sonoid tow Co i?*SJe*m-C*v.*n..kr.............................. 920-8990 3S7MS:w -........... -.................... - 342-0852 mencen Land Development Association AMERICAN MASSAGES THERAPY lCC=l6lh:h*.................................... 1* 6S9-4SS2 mencan Land P?'v-i Inc 1025 Vi 1. vw- - K7*55 ASSOCIATION INC 112? N "-gn anc a-.----........... .. -52S-3019 me-ican Land 7-*r* Ass.n 121JL s-.v........... 296-3671 American Mea Cc me 1260*0 St *. - - 546-5100 MERiCAS LANGUAGE ACADEMY American Meat Ins:,: ................................................. 529-0400 L790 s MooieSi ....................................... 841-2400 me'icar. ^ancuage Academy American Media Services Inc -i-.-f' i-r---* Cjrss-cu-.........................S26-C300 15T! w.s iNw.................. * - ........... 963-1584 UERlCAH LATVIAN ASSOCIATION mencin taunern 32 22 G ace Jr vw-..... 333*0454 -t-ican La* l-torcemen: OTNcers <socii:.sn *-.:.................................... 292-K)65 ^ERICAS LAWhSERVICE INC -irilO-.rX'.an ........................ 'c'.*inTe-Nf-734-j2C5 ArIr1^TncAanj*lSi*MeCia.S..e.rv.i.c.e.s..In.c. 965-1554 American MeaiCJl Asssc 515 Sorm0**r>:- C'icjcoT- v-asni-ctor AresTe'ND- <84-2451 AMERICAN MEDICAL ASSOCIATION Alr/r?^*e-r*a5ri:MNe'.cv.c.a..',..A...u..s...c..a..t..i.^..n........................C57-13O0 ''tR'CA*- LEAGUE FCR EXPORTS 6 h -c,* hc-*i........... ..................... <62*76:3 'ACimT' ASSISTANCE INC American Med'C?! Asjac.aLon ......................................5W-U07 '-'ERICAN LEAGUE Cf ANGLERS BlO.i-NA...........-.................................... 347-7475 -,er.can Lj-run- Src:eTy In; r--ent a sro-er ! 111 . AN .v * * -- 393*2330 Amvnan MeCicil Ct:if5*s Acui<cat>on Sernce I 0w--C - *-* .......... 625-0600 American Med-cal And 5er*jl Su3C`y Co -Tv................................................. 363-3566 uY.u* t. .v........................... 245-22 50 -ERICAS LEASING S FINANCIAL AMERICAN MrT`CAL OrCinaiy ira-.v. OiXrs Liie-Hea':*.-- j.mC"3oeiiC''i *of-* 35 W.sconsir C.-- C**i C* i>* - ........... 657-3226 Da*-i Z.;si ;*- ;e-t 901 fiect-anc-fitCsarr-a----- 3C1596-57S7 Dane. iwows. C-rr. A;-: 901? *ec S^avc.- fiZ Coiur.>*Mo..............- Berwyn Tel Nc- - 9S2-192S fijio.'. Ofr Cm 1 471CA.n9tva-ic-ne.s-j...................... 899-2323 ai5.i.e'G*r.;i;er.: 6192 O*o* h.n S; Oton Hiil... 839-7400 Ordinary Agenc-d fitgienai Cttite-- H C Kooerson Cl'J Oir 0t *><noe *?21 Sa-ca-ve fic Sum-** * - 229-1150 AMERICAN NATIONAL METRIC COUNCIL U2S Mass * nw.......................232-5545 AMERICAN NATIONAL MORTGAGE C0RP :?2Sx$:v*..................................... 466-2040 Amencan National Standards institute 15l-iS:8nv*y\v. - -- --................... 635-4546 Amencan National Standards Institute Inc Mau < thon-as CirNW........................ 623-4625 American Natural Resources Co 1899 L 5; NW.................................................. 466*7430 American Near East Refugee Aid Inc 152? k S' nw.................................... American Needie-ork Center Inc 347-2S58 2SC3MNW..................................................... 337*1534 Ame-.can Ne-s Features 5?9 1*~. S: .*/ 753* 1770 American News Letter Se-vices 17i: Co-* i. nw.......................................... 387-7099 American Newsoaoer Pub<ishers Assocrat-on i:s:i$.-.-.ia /*'? 2American Newscact' Pub'isners Association Foundation 620-95C0 li600S.~:ti'.a.eO*ef::*. - ................... 620*9500 America-. Ne-ssaaer Women's Clue *nc ' 332-677 Amer.car. Nuclear Erte-gy Council <:3:*s:j:St............................................... 484*?s?0 American NuclearSocietr 7=7? <St vw----- 463-7223 American Nurses' Assooaeoiv-- 0" :t HIM:- S*vw..................................... 26-6C10 vCa; lil3C15:nS*.v..................................... 29d-SCli American OcCLdat.snal The-aey Assoc.at'on inn. 1251Pc:j*d>C:--.?*:........................... 948-9626 American OccuaationalTnt racy Pcunca- cn i:3f ::'dC-C. --.c-;--------- 94S-9626 Ane- C2*Ocean-cO-ganicsiicn AmencanPilcuAssn 1CTI >?- *. Jf'vn it NW* - * - - -........... American Planning Association Ame-'Cin Fad<t-y Association 2CC.`e> C`aseC -mnw ------- --------------Ar.*ncanPc,.ceAcademy8*-*oaVp * Amecan Pot.:el Research Ccro ;3'-'V3-::*Mnftir............................. Arne-car. Political Science Assn . 1527 mi a* sw..................... Ama-icanPostaiWornermag^i ' . 412 842 AMERICAN POSTAL WORKERS UNION AFl-GO-- NsJCAAfcCtiSl* l*th. 51 nw OClxai235vssacnusens*NE........... Hcsr'-a'P.an 642 847 123-15 Ca.ra.a Pie S'.er Sarmg........... 622 Amencan Prttil Workers L'mpn A7L-O0 8<7 AMERICAN PRECISION WATCH B CLOCK SERVICE ?12 wimc Cn 513- AMERICAN PRE5I0ENTUNE5LTP 16*51 NW.......................................... - 131 AMERICAN PRESSING 10CeN AancocMrl sr American Presd Institute r,l*2$v--eV..*,Drfieron................ ' AMERICAN PRINTING CO SA8 H NW - - Amencan Pr&ducvon & Inventory Cor-trpl Soc.ety Inc 21C3 V*A* NW........... 62: 842 American Prseuctwity Center lETikS'NW............................................ Ame-ican P-oelies Team Ir.c iCii'nc^sDrhisje................................ Am'ij*n Pfdtr-ive Service 2=7 r. A. NW AMERICAN pFiCTESTAVTHOSPITAL ASSOCIATICN .9'.lvfv.-.0-4-i Ame1 canFs.c* .''ricAssPCiJtion-- 1?CC $:sw................ <nr up4our-j Of Pstcr..asy...... - * - 0*uf^yets .......................... .. 6ce~"'I fit f.ms* -...........- * M6s:-^.8C: -- ................ Pcs:'J s Cc-**.*.*/P%?* *:rr<.'. :e - - ;?r` l-'rrm* t-Fe's-ce^.r .a: :-s - * S3 BS1-LSC0 -e-.car'.tsa-isej nlormatien Center :::b:$-nw....................................................sr2-:o -f'.jnle':.*'S*s;ems :::: :7m5* Snr 633-V770 ^ekicanleganlssLeague -ITS I i: ...................................................... SS2-0620 |:hc:15ctK^.N'A-^TIwO.'-iA^l.s.v.v.............. 333*4590 AMERICAN MEC 1CAL LABORATORIES INC-- l!'.*lMa.n5tfa--:..................................... 273*7400 lS J.Cn* - w:uan........................ 356-0313 flat s-ai lz;.................................................. 625-A433 American Cceanic Orga.'ccafion 5-s.v............................................. 347*6553 AMERICAN OrfICE PRODUCTS C0RP American 0`ea-s TL Co .................... 463-7727 iSTlI S6<-7<1< . V>-1' >ti.rjnee........... SEE -- YELLOW PAGES INDEX Intunnu SOS :vibci {(bTd) /v A pvtdt proupad by 'ill JJL -Tl icoatra innadmaiy * Iguowinp that* litU/vga UULCMMTtD UHMLTT UBUUXCI DO-- AHUICAR MUTUAL UOWUJCt CBfr-- Cantlattf* aauoaflati IKSUJUKCI IhC------------------ I "Make a Data SOUTHEAST L i> s insurance uency * _ >429 b:^4i> > ...--.73S-155C STAPLETON INWAAXCL ACWCY *5S4 OlS 8-*A A* Ci>v Sprint...............-........... 444-53*5 AmHu.1 Uvim! Inimt Cl Of IntM tj;s-a van m I With Armorplato" lama* -----WaMiAmTiI Ha--421-4770 AmrieaA Mtrtwtl Lkbriiv mi-itMU a AUTO INSURANCE lamaia - WttHAniTtl Na-Ul-4779 FOR ALL DRIVERS Ajaaipa^autf Casual^ !*** C 40 irM-m-reo Ajnrriua kiaitaaui tiuartaei Caneaftp-- OntHct CHao Ufi-Ha*!*Jv-- -STATE INSURANCE--Cuitbwad NORTHERN VIRGINIA SALES kmM OaJUl K 7?ClftrMaekM Sprr?U-770-778* H W Oum PA M*r 121 N wadi tln-54-UU Ortftna.-y BnK*. 0*e-lNa^aall* OFFICES--C*nti*m4 AfJIJUCAX AU7C IXSU&AKCt ACWCY-------- Jtn Cambali 4aI Ayvat AHtuta Inwtsci Cc.*cp*Ala*--CaatlfeMd SpriRP**'*-- Jr i Watt SpHn**et4 Caatar i:i9-U PaUlay M -............Mf-MOO Sp'utgAcid Mari 47C1 f714KM Ws:rt*:*a*-9tla Cltr- AUTO - CYCLE ALL DRIVERS 524-8500 )}w.tCP OCk ...........--........... 457*3221 Awrlcaa ftaitf CaTba llS26Ani*r-0r P:tM....................... 448-3400 AMERICAN SECURITY INSURANCE 435 Man Av nw.................... 124-4127 Annua Warmup C*rperUan 17540mpinAiaA*irW --...............347-C32 Crw Plata -..................703 490-2266 OS? tl SN.................. 703 470-3141 AMICS INSURANCE SERVICE-------------------44) k (Ml U AH------------ ---244300 u-ctoiD Ktrurto latho IMMEDIATE COVERAGE euDorr payment plan O.C., MO.. VA. Opan Salty Ta 4 PM; Sal To t PM B fn 0f A4 At TAia Haatfay WASHINGTON, D.C. 529-5660 tttl lattne AvaLN.L 507 MUU An................ ^...JII USO Fall* C*w*s^- AMERICAN CAWAL LITE INSURANCE CO tAf'-eaJ S*wppIm7 Ctr 1170-M PimmJi Or.............--373-0440 Th* Family laagraact Cwwmw AUTO Fa>rfa" FaiHai Sawn 115 Malx St..............-........591*4164 Ur.wnitjr Mall Amarlaga Capital Ufa 1mm 19*17 Snenelr ..................... $71-1449 3735 I St MW .........................................454-MM 1509 krn*T*'.ri ----47I-82M. A**rle* Cattwiaa las Apm lac INSURANCE WE INSURE EVERYONE NORTHERN VIRGINIA SALES 412 H St NC......................................... $44-3077 OFFJCES--SEARS BLDG AMIff ICAR CtTtZDU LIFE IRSMUUCI Alliuti irsmnu Ccnrpafllai CORF a Local CoR**f Ufa Ewrfgmmcmi Fl'rOftI Mall................... *71-0*50 Mcattlt. MctOomt MaapftMaatfm 57903 L Jactaax Nlftwcy * --273-8CJ0 ltSha.B.RiV ................................. 724^890 StB'ii*-*-- Arwlcaa Caandi M Uft lasuoaca Taw* Intir Stappiny Clr - 430-0227 104 k Stim.842-4000 AHltytan . lrx vnu* im . ......------ 527-2263 IMMEDIATE COVERAGE LOW RATES EASY TERMS AUTO - TRUCK - CYCLE list Wisaa- 11x4....................... sn-we 4'nx4'l-- A17S>l*rSprhnA> 387-2424 S*C9plr<f Cb ......354*7564 AawntaA Fvis lawraaca Atwciatlaa-^ LtO-tf'r Stotfinf ZV ......354-1234 tAiuui*-- M*NLpo-t Skaaylna Cant* va.................................. 703 341*7111 UrroP1f -- M. v--irr Plata VA............ 7C3 4*4-WC Sal AfjA Amrian tia arm 4 LUAUttjr laiarraaea Eaacutlva Plata IV Kwat Valirr -- Wt*MrJ*AnaTaJ Na--421-024 Wku taM-aaca AamcUUm 2C25C*aaAxNW-27)*2440 567-5112 80 OXON HUN DR. OXON HILL UO WASHINGTON GROUP SALES OFFICE AmrtcsB lanraao AsbcIiiIm 16A5CamAvMW -273-3010 EASTOVEA SH07PINQ CENTER F tnvj * 105 K St HW-.I214S23 Lamzxs rrrcuuriouL cmfanie CLA1HS OFFICE ANCHOR ASSOCIATES------------------------------- A'l:*.r!t )riK'*f> Campaalti V'*T*r>i| Claim ti:c AH't-dr Hr* r*!r|i------ 470*4309 v.i*r c: - Satitstr* Ml Palm 1SC-: ArHisfim PIrt Fa.Hu -475-4409 to My AjYKfteAn Koam Ajkourtnca Company American tntemattaul Ult WE INSURE It itAaM 14 Ulttwnbvri -- -230-5700 Iruvrorvoe Companf REJECTED CANCELLED NEW DA UNDEAaCE DRIVEM (Nr tovia Dakota Ava.| DISTRICT HT*. TAKOMA PIC. 736-6380 270-0200 8018 Marlboro'Pika 8801 Lovrol Ava. (At etlrar NHI BE.) (At Eoaktm Am.) Aroarplala InurtAc* |ac liltUvlKRPli OiUMfti............. --.734-4789 5a* Our A| At Tfcll NaoPUlf A/oneFf Mltkaal J A Ataaa St/nr>aPl*At2S*>J.aa2aM*r .............................................................. 471-4400 Aakkr laiuraRet Aptney lac AN Umi al foavaaNC* leeiliriM SiiSm........................ 383-7400 Aiaa6attF Inivrariea Uanaitmik i):a3HM jiijp-5l7*4Mi USCCUTlDk CROUP INSURANCE AOUtN.'STftiTORS PlaRA/ny A*t AOmfAlet/fflo* ?135*Viitsya ..................... 3)3-4242 assurance incorporated PrafaatJaMl /A#uraca 4/o3a#a - Aioapa AfUtobio ............................... 337-4282 ATLANTIC COMPAXILS TNE Lirrin Pit IM Codyivla - -lfu1f-C'r*R&lr1l Ni-42M270 ATUNTIC UCTUAL IN3URANU lOMPAXY CM! 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Zxtrc. v;c-?r*. Ser.tur Exec. V:ce*?r. . Land1:!:, Scruer Ytce-Pre*. ri-L-J. SerJcr Vice-rrw. M--a.tnr.u:i. SerLcr Vice-Pro* rj^-r App Vice-??**. ? y.Vllt* e.H H ..:--.an f.twe: >. Krr.r.ce: - Jr. F. . s:.L.*.;?r.ifc W? S:.c: Jr. "irfdtn -ezr.ev. Arcnzmoaui: S.N. Betas V1* _tjvI,_;..LRa.i-.ucnr.aa.rJdr. S7C.iT.5D...RSReLruitmachsiararcisane? * . '.v.K;e `i.^Iempcr. Jr. J.R. Cc.:"i2 J.3. L-ar.termaa : <!*. c*i:: :.;jr c::v :::: :>. :5 ' :..:i comparry: no c*p.t-J tj.: ;Sa>2< j*. t Pfeniumi WnSifl, SC-.v:: 'rn- art. S; .teamn .. . > JuiJT'' wc-i-jpeo's wap. ... r.-oeusy ......................... gfy........................... ' .rc-im- (< the"......... c.er L macc............ A-;-.: rr't. tarn. ... 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Incorporated under M***ach'_~t*.s lav.** ^ Mnrca. i*7. Coaamer.cec hujinesa In Cm, Type* o: insurance ^mitten; See tabulation "Net Prtayjm* M'r.ttsn'- c;^-- ?. ; rrr^c: Preess.cent H.B. O' C a nr. o r. Seruc-r V.ce-rrw.csi; Vjce-Pre* ttr:, V--.? Mop-sa G#o*c. S<"r.-:?<e. w.K. Lnt.c.-. Mar-- *. `O: rr.o.- T.?. GaOac.te n..` Crrrr.c ''s'.r '.%r.crsc ..:r Si-vje. nrav`5ur>' Sv-.-ja : r. Br.a.e.-... . He::err.ar. LX. . j-rek. `..S. 'A cod a n. rcr.roecer AMERICAN MUTUAL INS. CO. OF SCSTCN (WAKEFiELC) lr.corpora-.ec in Maasacr. oACtt*. .N'cv c. :t?C. x* .vluec .Amer.ca-r. Mutua. Auicnto-e Insurance Co : name cr.ar.rec to ALore .-jT.en- re insurance Cc ir. J-----iuruai r:re I.-.sura: p:e*er.: name *ccpiec nt T.~ze-? o: msurar.ee -ri:ter.: Fire, motor vf h:;.es. torr.aco. ""-ica:crr,. erersed cc'-erart. r.ct. ct'*u ccnncjcn ar.c explc-sjor.. ea.--mouake. ir.lar.c r.av-.rauor. anc spr_*odtr Ifkxtrt a.rcm:. rauinpie perL. crc-jp ace;Ccr.t 5. .-.(.a.tn. v-c:/nr.<nA ccmp.. ?.!:>. ex* C-A Cf i'oSS Cowrites in nZ suio and D. c: C. e-cept v.- a.H. Sc.'t.vmen. ^'iCe*_Pre*. A C.A. Harroner. '-'.ceH W. Cca V/.J. Barney. Jr. Pw.'.'. .-.can_i ?.X. RoPersor. .* .H. Clearer. Irrot "vperpe.Tiir.* V\'.~._A"i.ee.r i: J.R. r.e.*.Srty. Jr. *.H. Mar-or. ? C. Nicholson. Jr. V. iUiam C r-oiiul. Jr. _ lomer. Jr. Annual Wn:!n; T5_rd *.t'?dreciv ir. ?-Iar. QW*-b.cCrn. eT*UCrkfioccI -7 `.MRSo-'SuOteCO.'. TS Wakefieiit. NL-K ?v.. Rcberso.n. C.tarr.u S M riusr.es. Vice-Chaarman R.j. nre-^er. Prwicem Vice- ?Tidenta s.nnor T.? He:Jrr.an . .'io'.'Mi \V H. L--T.cn Z.?. Brrc> L Z. T.rrrJ R.n. n- r.;ifCrr W f. Ar.ccr-on. Jt Ar:r Gooi^ie. Jr. i .?. GaLacher M C Sad LI Gium `V.'. Jvf.ua Z J Creme 5 i_T j = 1 P rdbu.-y M.A Carney R 1-1. Sc.'.-"..'.e.n. `''tre-Pre*. A Sec. Z- A Hammer. V :e-?rrs. 1: Ccr.tr. K V\ . Cr^i erse. T-enaurer rr. Goocm. J: ? C. N.cr r-is-or.. R V AciT Gnr*ce putr..`-.m. V' .H. Raye. Jr .-.meet .- eaer.Sem-.e; ?. Z Ko:cnor R C. Irr: .-jt, Tr. V/ F. U --eicr. *r. T.H. Mmin `-5'^*e CMice: \\'.Vriej .e,C. M.A. Ts J'O.K;. r?I Tr`_ Slc.tiic* i jS.; *v 1.1 fc-i ,;v"" u.mt *5; r-.r'r r.*e.................................. A Lee L-.es..................... ;vrJ.............. _*_i.~.C ".arne . u rz tree 1 r_m. .. .vor^mter j'.mp ... Ctr.er .. i r ^ rv ........... A -to J.:r ?.-:s- carr. .---car. m r-er.is . . arance . .... C~me:........................... 3..h: cj 5.0JI . 35 3 -v : r r.7 s 15 ;t ;.s .35 t<2 Cli 0.57 t 4.1*5 5C-.SS4 j:: 5 c i ak : .W.f-i* 7:u. . 7v3.2.'4 :*c.:vfe income account. yAP> tnen: Sec. 71 {JtVJV ; 'v icre .rt p re rj. *m 11 e r. . . :* :.:6 ::u.io#> . r.ra m. ::em. trs . . r*im_-rr-! t u -- cC c--.m* i^2 r-- -rr.t. s: r .'(6 fclf --r*-rs .rrurree. : . -U'^r.; exp 42.TJ0 :r. Litf-Tu. r.a p. i; . . enj .: -r.r_".ei pa.r. Net utU A :crta . .et re*- .r <. .* 7.*j: ^ _. iirlj.'. :j rr-5o u :: 1 :.l.t -t; er .r.iie.e cu. ,r.cj--.e _'.**. ta p..n :.,cn .r.con-.e 'i* w 'f. _-.fn.me . Net .r.v. sal. L-v. u.--i7 ;; . .",!h * ;: 5 : '-'3 yr .4 u ; 4.s.i tn '.VA m.i ;o 3. t<5 TOR THE EASTER!. DISTRICT OF TENNESSEE, SOUTHED; DIVISION WILLIAM RALPH HOLTON and wife, ONEDA ANN P. HOLTON., Plaintiffs, VS. JOKNS-MANVILLE SALES CORPORATION, ET AL, ) c ) ( ) ( CIVIL ACTION NO. 1-77-294 Defendants. ) . ' PLAINTIFFS' BRIEF OF LAW IN SUPPORT OF THEIR RESPONSE TO DEFENDANT'S, TURNER & NEWALL. LIMITED, MOTION TO DISMISS ; I. The Defendant', Turner A Newall, Limited, controlled and is therefore liable for the tofts' of its subsidiary, Keasber and Mattison Company. It is generally held that it is necessary that some thing more than ownership of virtually all of a subsidiary's stock by a parent corporation be shown prior to holding the parent liable for the torts of the subsidiary. Cal'iff v, CocaCola Co. (D.C., 111.) 326 F. Supp. 540;' Lucas v. Mobile Oil Coro. (D. C., Tex) 331. F. Supp, 957. The principle is also well-established that where a parent corporation not only owns all of the common stock of the subsidiary but there is also an identity of directors and other "enlacements and interweavings between the two companies" the parent should be held to answer for the tor'ts of the subsidiary Hctnolds' V. Litton Industrie's',' Inc, , (D.C., Wise.) 326 F. Supp. 965. In the case of American Trading a Production Corp. Fischbach A Moore,' Inc. , (D.C., 111.) 311 F. Supp. 412, the Court stated that there were three elements necessary to estab lish a parent company's liability for tire torts of its subsidicThesc elements are as follows: 0 c UMMCN5 IN i. Vt iu At. riON ^4 f'tatrs Bistrirt (Court FOR THE EASTERN DISTRICT OF TENNESSEE, SOUTHERN DIVISION tHTERth CIVIL ACTION FILE NO. 1-77-294 WILLIAM RALPH HOLTON and wife, ONEDA ANN P. HOLTON Plaintiffs JOHNS-KANVILLS SALES COR?., RA Y-3EST0S-MANHATT. N, INC., THE CELOTEX COX?. ROCK WOOL MANUFACTURING CO INC. , FORTY EIGHT INSULATIO^j^gg*, EAGLE-PICKER I!., INC. cmninvc ARMSTRONG CORK AND INS. CO., UKARCO INDUSTRIE^. INC., KEENE COR?., ?ITTS3URG-c5RNIKG , COR?., OWENS- lORKING FIBERGLASS CORPORATION, FI3RE30ARD COR?., ATLAS ASBESTOS CO. . GAF CORPORATION, NICOLE INDUSTRIES, SOUTHERN ASBESTOS COMPANY, HOLME! INSURLATICNS, LTD., OWENS-ILLINOIS CORP., 7TRNSR-.NZWRLL, LTD., EMPIRE-ACE INSULATION MANUFA C TURING CORPORATION Defendant To the above named Defendant : You are hereby summoned and required to serve upon plaintiffs attorney , whose address Paul T. Gille.nwe ter Gille.nvater and Voelchel 6401 Bant Drive Knoxville, Tennessee 5SS-7465 an answer to the complaint which is herewith served upon you, within 20 cays after iervice of this summons upon you. exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint KA RL _ D_._ _S AUL ?_A W, _ _JR._.............................. 7 Clerk of Court. Dite: .Vcverier 21, 1977 tteputy Clctk. [Se*i of Court] V.'OTE:--This s-t'-mnn* if 1 Mil pursuant lo Kulc 4 of Ihe Federal Rules of Ci'il Prr*eedjre. twri,' IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE. SOUTHERN DIVISION c WILLIAM RALPH HOLTON-A ,,ife ONEDA ANN P. HULTUK~ Plaintiffs, vs. ( ) ( no. 1-77- 2*f- ) JOHNS-KAKVILLE SA1.es CORPORATION ( successor by mergeT'to Johns-Manville jI Products, Inc c/0 1614 Island Home Pike, Knoxville, Knox County, Tennes ) i see; ( RAYBESTOS-MANHATTAN JNC.. A New Jersey Corporation,' ) c/o C. T. Corporation System, Statutory Agent ( Union Centnerce Building Cleveland, Ohio 44115- ) THE CELOTEX COKPQRatton, ( A Delaware CorporationT' c/o C. T. Corporation System 1412 hamili.cn oank Building Knoxville, Tennessee- ) ( ) I ROCK WOOL MANUFACTURING COMPA.WY. INC., An Alabama Corporation Leeds, Alabama; ( THE FLINTKOTE COMPANY ) A Massachusetts Corporation, c/o C. T. Corporation System Statutory Agent Car ex Tov.-er ( ) Cincinnati, Ohio; ( f FORTY-EIGHT INSULATION TWO , An Illinois Corporation--1--'' Post Office Box 1148 Aurora,'Illinois; EAGLE-PICHER IKDUSTRTrc jnC An Ohio Corporation------- -- ---------580 Walnut Street Cincinnati, Ohio 45201- ) ( > ( ) ;\ j ARMSTRONG CORK AND INSULATING COMPANY A Pennsylvania Corporation c/o Attorney Robert R. Campbell Hodges, Doughty & Carson 911 Hamilton Bank Building Knoxville, Tennessee; UNARCO INDUSTRIES, INC., A.n Illinois Corporation c/o C. T. Corporation System Statutory Agent 1412 Hamilton Bank Building Knoxville, Tennessee; KEENE CORPORATION A Delaware Corporation c/o Prentice-Hall Corporation System 450 Maclellan Building Chattanooga, Tennessee; PITTSBURGH. -CORNING CORPORATION A Pennsylvania Corporation One Gateway Center Pittsburgh, Pennsylvania 15222; OVENS-CORNING FIBERGLASS CORPORATION A Delaware Corporation c/o C. T. Corporation System Statutory Agent 1412 Hamilton National 3ank Bldg. Knoxville, Tennessee; . EIBRZ50ARD CORPORATION, A Delaware Corporation c/o C. T. Corporation System Statutory Agent 1412 Hamilton Bank Building Knoxville, Tennessee; ATLAS ASBESTOS COMPANY A Canadian Corporation 5600 Hoche]aga Street Montreal, Canada; GAP CORPORATION, A Delaware Corporation, c/o Hugh J. Mcore, Esq. Attorney at Law 1100 American National Bank Bldg. Chattanooga, Tennessee; KICOLBT INDUSTRIES, successor by merger to Kcasbcy & Mattison Company A Pennsylvania Corporation 25 Skippack Pike Broad Axe, Pennsylvania 19002 ) ( ) ( ) ( ) ( ) C ( ) ( ) C ) ( ) ( ) C ) C ) C ) ( ) KT T 'TJ.'I-Ht rIT 1, ^ V" 7 i p Q SOUTHERN ASBESTOS COCTANY. Thermoid Division, Subsidiary of H. K. Porter Company, Inc. Seabord Street. Charlotte, North Carolina 2S206; HOLMES INSULATIONS, LTD., Subsidiary of Babcock &Wilcox, 561 Scott Road Post Office Box 2079, Sarnia, Ontario, Canada N7T7L4; OWENS-ILLINOIS CORPORATION. An Illinois Corporation, c/o C. T. Corporation System, Statutory Agent, 1412 United American Bank Bldg,, Knoxville, Tennessee; ) . (_ ) ^ ) ( ) ( ( ) TURNER-NEWALL,' LTD,. A foreign corporation, upon whom service of process may be had through the Secretary of State at their registered address at 77 Fountain Street, Manchester, M22EA, England; I EMPIRE-ACE INSULATION MANUFACTURING CORPORATION. A toreign corporation, 1 Cozine .-.venue Brooklyn, New York 11207; ( ) ( ) ( ) f ) Defendants. rrn COMPLAINT _ Come the plaintiffs, residents of the State of.Tennes ;ee, and sue the defendants, and each of them, for damages both comp m- ; satory and punitive and for cause of action say: I Defendants are all corporations incorporated under th i ; !i lavs of the various States of the United States, as veil as Canada and England, as indicated for each corporation in the I j caption hereof and all of vhca may be served as indicated in the caption hereof or under and by virtue of the Lavs of the State of -3- G Tennessee, either through their authorised agent, servant, and/ or employee for service as indicated in the caption hereof, or through the Secretary of the State of Tennessee. II That defendants, and each of them, in the past have been engaged in the manufacture, sale and/or distribution of asbestos and asbestos-containing materials. : III That the male plaintiff has from 19^2 been an asbesto: insulation applicator who during the course of his employment used and installed asbestos-containing thermal insulation pro ducts manufactured, distributed and/or sold by the defendants. That these products were used by the male plaintiff in the manner -\t- and for the purposes for which they were intended. That these products, at the time male plaintiff used then, were in the same condition as when they left defendants' control and possession IV That when used by the male plaintiff, and manufactured, lV. fc* distributed and/or sold as aforesaid by the defendants, said asbestos-containing thermal insulation products were in a defective and unreasonably dangerous condition in that they were in a condition not contemplated by the male plaintiff as a fore seeable user. V That as a direct result of the defective and unreason ably dangerous condition of the products sold or distributed by the defendant, male plaintiff inhaled asbestos fibers in the oust emitted by the normal use of said products, proximately causing him to develop the disease of asbestosis and/or its relate! maladies. That male plaintiff has suffered and will continue to suffer pain, mental anguish and his life expectancy has bee shortened. Further, his injuries are permanent in nature and he has incurred medical expenses and will continue to incur medical -4 - expenses in the future in an effort to medically control and monitor his disease or diseases. Male plaintiff further alleges that he has been caused to lose wages to date and that his ability to earn an income has been greatly impaired. VI That the plaintiff. Oneca Ann P, Kolton is, and! | was, the lawfully wedded wife of the male plaintiff and as a result of his contracting the aforesaid disease or diseases, she has been deprived of her husband's services and consortium and, therefore, she has been damaged. VII Plaintiffs allege that the defective and unreasonably dangerous condition of the asbestos-containing thermal insula tion products manufactured, sold, and/or distributed by the defendant were the direct and proximate cause of their injuries, losses and damages and that plaintiffs were without fault in the premises. VIII Plaintiff learned of his disease as stated on December 6, 1976. WHEREFORE, male plaintiff sues the defendant for compen satory damages in the amount of ONE MILLION FIVE HUNDRED THOUSAND AND N0/100 C$1i500,000.005 DOLLARS and female plaintiff sues the defendant for compensatory damages in the amount of FIVE HUNDRED THOUSAND AND N0/100 C$500,000.00) DOLLARS; and both plaintiffs sue the defendant, for punitive damages in the amount of THREE MILLION AND NO/100 C$3,000,000.00) DOLLARS and costs and demand a jury to try this cause. WILLIAM RALPH HOLTON and wife, 0NEDA ANN ?. HOLTON A I cer!Hy Ihls Is a (rue and correct copy of the forcc.olng filed i t 'S/ls'c 77 BY GILLENVIATER <. ATTORNEYS FO: , . 6A01 EAUM DRIVE KNOXVILLE, TENNESSEE 37919 . . v. As.- - THIEC-PARTT SUMMONS IN A CIVIL ACTION civ. :: a <s..;) i N T R E ft Hittfrit talrs tfistrirt (Court FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION Civil Action Filc No B-81-S0S-CA RODNEY J. HARGRAVE, Plaintiff FIBREBOARD, INC., ET AL, Defendant and Third-Party Plaintiff SUMMONS TUc-unoo ft N o.W,-.LiL , LTD. , Third-Party Defendant * To the above-named Third-Party Defendant: You are hereby summoned 2nd required to serve upon Alvin E. Nicgins, plaintiff's attorney, whose address is Young t Morrow 520 South Twin City Ewy. Nederland, TX 77627 and upon Jack E. Urquhart, Holtzman i Urquhart, s who is attorney for the above-named defendant and third-party plaintiff, and whose address is Five Greenway Plata, Conoco Tower, Suite 600, Houston, TX 77046, an answer to the third-party complaint which is herewith served upon you within 30 days after t sen-ice of this summons upon you exclusive of the day of sendee. If you fail to do so, judgment default will be taken against you for the relief demanded in the third-party complaint. There is a sened upon you herewith a copy of the complaint of the plaintiff which you may but ore n.v ~-.|uir to answer. Dated: /3 - 7 ' // By ... MURRAY L HARRIS Clerk of Ikt Cour V0 Dtpuly CU- [Seal of Court} Nutt.--Thtf Mjmroons i UMird purscint to Fule 14 o! the Ft-dtre) f Civil rrocrdurc. f C_A<\ IN THE UNITED STATES DISTRICT COURT FIL! U. S. DISmJIC IaSIWn dSisc FOR THE EASTERN DISTRICT OF TEXAS -:EC`4 BEAUMONT DIVISION MURRAY L h* c. 2u r; DEPUTY ^ RODNEY J. HARGRAVE VS. FIBREBOARD, INC., ET AL .S S s S 5 CIVIL ACTION NO.B-81- THIRD-PARTY COMPLAINT TO THE HONORABLE JUDGE OF SAID COURT: NICOLET, INC. ("Nicolet"), Defendant in the above- entitled and numbered cause files this Third-Party Complaint complaining of Turner & Newall, Ltd., (T i N), as follows: I. Nicolet is a New York Corporation with its princip. place of business in Pennsylvania. Turner & Newall, Ltd. is public corporation organized under the laws of the United Ki: T & N may be served by forwarding summons to the Senior Hast' the Supreme Court, Royal Courts of Justice, Strand, London, Y 2, for service on Patrick Walcron Ccbhara Griffith, Chairman, Turner & Newall, Ltd., at its registered office St. Mary's Parsonage, Manchester, M3 2NL, pursuant to the provisions of Convention on the Service Abroad of Judicial and Extrajudici. Documents in Civil or Commercial Matters. T s N has done bu: in Texas giving rise to this cause of action as more fully se in the following paragraph. Jurisdiction of this cause is b; upon diversity of citizenship and amccnt in controversy in e: of $10,000, exclusive of costs. II. This is a complaint by Nicolet seeking a declaratoi judgment, in a case of actual controversy pursuant to 28 USCI S2201, that T s N is the successor in interest to F>easbey anc Kattison Company (K-M) and that T i K is liable for injury ct >* 1 {t.M \ by Plaintiff's alleged exposure to insulation products manufac tured by K-K. Nicolet also seeks indemnity and contribution frc T 4 N in the event a judgment is entered against it. III. Plaintiff has sued Nicolet for damages which he allege to have sustained as a result of exposure to asbestos containing insulation products manufactured and distributed by Nicolet and other defendants. Nicolet specifically denies these allegations. Plaintiff further alleges or will allege that he was exposed to asbestos containing insulation products manufactured by K-M, and he alleges that Nicolet is the successor in interest to K-M and ; liable for injuries caused by exposure to products manufactured t K-M. Nicolet denies each of these allegations, contained in Plaintiff's Original Complaint, a copy cf which is attached to this Third Party Complaint and incorporated by reference. IV. Prior to its dissolution, K-M was a wholly owned sub sidiary of T 4 N. The profits from sales of asbestos insulation products sold by K-M accrued to T 4 N. T 4 N operated KeasbeyKattison as an internal division rather than as s separate corporation, ignoring the separate existence of K-M. T 4 N, or its wholly owned subsidiaries, supplied all of the asbestos used in the manufacture of K-M products prior to September 1962. T 4 1 ultimately received the cash paid by Nicolet for certain assets owned by K-K prior to its dissolution. V. Nicolet has been required and will continue to be required to pay judgments and contribute to settlements where Plaintiffs have not been exposed to Nicolet products, but only K-M products. Consequently, Nicolet seeks a judgment declaring that T 4 N is the successor in interest to Keashey-Kattison or, alterna tively, that Keasbey-Mattiscn was the alter ego of Turner 4 Newell, Ltd, and thus liable for injury caused by K-M products. -2- VI. Alternatively, if judgment is entered against Nicolet based on Plaintiff's alleged exposure to products manufactured bv Keasbey-Kattiscn, Nicolet is entitled to indemnity from Turner i Newell, Ltd. for the full amount of such judgment because T i N supplied the asbestos fiber used in the manufacture of K-K insula tion products. VII. Further, if Nicolet is liable to Plaintiff under the allegations contained in his Original Complaint, Turner Newell, Ltd. would also be liable and is thus a joint tort-feasor, and Nicolet is entitled to contribution for the reasons set forth in the preceding paragraph. WHEREFORE, Nicolet prays that citation issue requiring Turner Newell, Ltd. to appear anc answer and that the Court declare that Turner & Newall, Ltd. is the successor in interest to Neasbey and Kattison and liable for harm caused by its insulation products or alternatively, that Keasbey and Xattison was the alter ego cf Turner and Newall, Ltd. or alternatively, that Nicolet be indemnified by Turner Newall, Ltd. in the event a judgment is entered against Nicolet, or that Turner Newall, Ltd. be required to contribute under the laws of the State of Texas if any judgment is entered against Nicolet and that Nicolet have its costs, and for such other and further relief as to which it may be entitled. K0LT2KAN UKQUKART JACK S. UKCTHART TBA No. 20415600 JAV.ES k. powers TBA No. 16217400 Five Greenway Plaza Conoco Tower - Suite 600 Houston, Texas 77046 Telephone: (713> 850-0511 -3- CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Third-Party Complaint was sent to all counsel of record on this '2>y\J\ day of Q> 1981, by certified nail, return receipt requested. JACK' E.. URQUHART JAMES H. POWERS L. -4- entered. UORLEY, CRAilER, TANSEY, HAGGERTY fc FANNING, 135 Green Street Woodbrldge, New Jersey 07095 Tel. (201) 634-76S0 Attorneys for Defendant, NICOLET, INC. ESQS . SOPHIE VILOIS, as Executrix of the Estate of Joseph M. Vilois, deceased, and Individually, Plaintiff, -vs - SUPERIOR COURT OF NEW JERSEY LAW DIVISION UNION COUNTY DOCKET NO. L-53715-S0 JOHNS-ilANVILLE CORPORATION; JCHNS-1!ANVILLE PRODUCTS CORPORA TION; JONNS-MANVILLE SALES : CORPORATION; AI-IMSTRQNG'-CORK COMPANY, also known as ARMSTRONG : WORLD INDUSTRIES, INC.; THE RUBSROID COMPANY; GAP CORPORATION; ; PABCO, also known as FI5E2BQARD CORPORATION; NICOLET, INC.; : OWENS-CORNING FIBERGLAS CORP.; UNARCO INDUSTRIES, INC.; RAY8ESTOS-?iAI7KATTAN, INC.; STANDARD ASBESTOS li.ANUFA.CT UR IN G : AND INSULATING CO.; KZAS3Y- MATTISON; NICOLET, INC., a successor to KEA'SBY-UATTISQN; CLIFFORD SHZCKLER; JOHN DOE 1 : through JOHN DOE 30, Civil Action THIRD-PARTY COMPLAINT Defendants. ; and NICOLET, INC. Defendant/ Third-Party Plaintiff, -vs - TURNER & NEWALL, LTD., Third-Party Defendant. DefeDdant/Third-Party Plaintiff, NICOLET INC., by * Third-Party Complaint against Third-Party Defendant, TURNER NEWALL, LTD., says: FIRST COUNT 1. Defendant/Third-Party Plaintiff, Nicolet Inc., & defendant In a case entitled Sophie Vilois, etc. -vs- Johr lianville Corporation, et al filed in the Superior Court of } Jersey, Union County on June 1, 1981. Copy of said Conplai: Amendment to Complaint and More Definite Statement to the Complaint is annexed herewith and made a part hereof. 2. Plaintiff alleges that Nicolet Inc. is liable her, inter alia, by virtue of its being a successor corpora to Keasby-Mattison Corporation. Keasby-Mattison Corporatic at all relevant times, a wholly owned subsidiary of Turner Kewail, Ltd. and was operated as a mere instrumentality, ag or department of that corporation. 3. Turner L Newall, Ltd., at all relevant times, the alter ego of Keasby-Mattison and, therefore, chargeable its torts, WHEREFORE, Defendant/Third-Party Plaintiff, Nicol* is entitled to ccnnon law indemnification for any liabilit; which it may be assessed baaed upon alleged successor liab including all costs and counsel fees. SECOND COUNT 1. Defendant/Third-Party Plaintiff, Nicolet Inc. herein repeats the allegations of the First Count as if fu set forth at length herein. -2- iccnty of hennepin KO rr V, L i ; fouri... c ' ;-o DISTRICT Alice Kory Garfield and Philip James Garfield, Plaintiffs, 'u i on :/ SUMMONS ENTERED. G^ou-47 cJ - Ci v_* v U 2 70 (T(fv vs. Fibreboard Corporation (formerly Pabco); GAF Corporation (formerly Ruberoid Corp.); Johns-Manville Sales Corporation; MacArthur Corporation, a Minnesota / corporation; Nicolet Industries, Tno . f snccess-or-in-interest to rail Mountain Company and to Koasbcy Mattrson`Company); Owens-Corning Fi.berglas Corpora tion, a Delaware corporation; and Turner and Newall Limited (former owner of Keasbey and Mattison Company), Defendants. FILE 7?0 1D?-_C --r - tiCl ir'LTF 2". 00 1LP.WL * " "" TD*L i'~ '"I i'h'EH ? 2T. F,1; fi`;~i); EE;; rifij.T: ' FrFMFpih C.DW7 !,ie7ph:t ca^-i THE STATE OF MINNESOTA TO THE ABOVE NAMED DEFENDANTS: You are hereby summoned and required to serve upon plaintiffs attorneys an Answer to the Complaint which is herewith served upon you within twenty (20) days after service of this Summons upon you, exclusive of the day of service. If you fail to do so', judgment by default will be taken against you for the relief demanded in the Complaint'. SCUWEBEL, GOETZ, SISBEN , HANSON, i/u: ' " Dv: John C. Gouts 4924 IDS Center /> ^ Minneapolis, Minnesota 55402 (612) 333-8361 P.A. ATTORNEYS FOR PLAINTIFFS  COUNTY OF ULNNLl'ii.' rrr Alice Mary Garfield and Philip James Garfield, Plaintiffs, vs. Fibreboard Corporation (formerly Pabco); G/AF Corporation (formerly Rubercid Corp.); Johns-Manville Sales Croporation; KacArthur Corporation, a Minnesota corporation; Nicolct Industries, Inc. (successor-in-interest to Sail Mountain Company and to Keasbey and Mattison Company); Owens-Corning Fiberglas Corpora tion, a Delaware corporation; and Turner and Newall Limited (former owner of Keasbey and Mattison Company), Defendants. i- GO K'J 2 j- JUDICIAL UibTiCCT entered. COMPLAINT 5" 788270 it Plaintiffs for their Complaint herein, state and allege as follows: I. PARTIES Plaintiffs arc residents of the State of Minnesota. Defendants (which shall be understood to include all entities identified in parentheses in the titles above) are or were manufacturers of thermal insulation products containing asbestos. II. CAUSES OF ACTION ------------- Plaintiffs allege causes of action in negligence, strict liability for manufacture and sale of defective products, and breach of express and implied warranties of merchantability and fitness for intended purposes. III. FACTS 1. At all times relevant to this action, the defendants were engaged in Llie numufaetu 1.e and sale of insulation products containing dangerous amounts of asbestos. 2. Plaintiff Alice Mary Garfield is the wife of plaintiff Philip James Garfield, a member of Local 34 of the Interanticr.al Association of Heat arc Frost Insulators and ,.sncs tins r.c r n ~ 0 . In ;i 1 s 3 r.n i r. " 10 *_o r l [ j. Garfield was rep^-tealy exposed to thermal _nsulation products manufactured by defendants which, although properly used by plaintiff Philip J. Garfield, produced danejerous concentrations of asbestos fibers in the air in the areas where lie worked. These fiber:; accumulated on his clothes and body, and were transported to his home, where they were inhaled by plaintiff Alice Mary Garfield. As a result of that exposure to jsbestos fibers, plaintiff Alice Mary Garfield has contracted severe lung disease. 3. As a result of this disease, plaintiff Alice Mary Garfield has suffered damages in the following respects. She has undergone, and will in the future undergo, great pain and suffering. Her life expectancy has been severely shortened. She has incurred, and will in the future incur, substantial medical expenses for the treatment of her condition. Damages total an amount greater than Fifty Thousand ($50,000.00) Dollars. 4. Plaintiff Philip James Garfield has incurred separate, damages for loss cf the full services, society, and companionship of his wife, Alice Mary Garfield. His damages also exceed Fifty Thousand ($50,000.00) Dollars. 5. Defendants caused plaintiffs' injuries and damages as stated above by their negligence in manufacturing and selling asbestos products which they had reason to know would endanger the health and life of plaintiffs Alice Mary Garfiela_and Philip James Garfield, without warning them at the time of sale, or subsequently, of the danger to their health and life from those products. Defendants were further negligent in failing to adequately test their insulation products to determine the hazards to users of those products and to others exposed to dust from those products. Defendants were further negligent in marketing i nsu.l a Lion products containing dangerous amounts of asbestos when, by the exercise of reasonable care, defendants :h>L Ju:: t.,J n i : 1' I .i.'luc For !ii:; sieg 1 igcnce , defcndan Lr a rr> liable 10 plaintiffs for their damages. 6. Defendants caused plaintiffs' injuries and damages as stated above by 'manufacturing ami selling asbestos insuiation products which were defective in that they were sold without warning of the dangers they posed to the health and-life of plaintiffs and without instructions as to safe use, and which were further defective in that they were net adequately tested by defendants, and which were further defective in that, regardless of.whether they were marketed with appropriate warnings, they were unreasonably dangerous to the user and should have been withdrawn from the market and replaced by safer products not containing asbestos.'. 7. Defendants caused plaintiffs' injuries and damages as stated above by manufacturing and selling asbestos insulation products which failed to meet express and implied warranties of merchantability and fitness for intended purposes upon which plaintiffs Alice Mary Garfield and Philip James Garfield had a right to rely, and did rely. For breach of these warranties, defendants arc liable to plaintiffs for their damages. 8. Defendants intentionally concealed the dangerous nature of their asbestos insulation products from plaintiffs and the public in general in order to increase their own profits, and thus recklessly and heedlessly caused plaintiffs' injuries and damages as stated above. For this intentional and_ reckless wrongdoing, defendants should be subjected to punitive damages as an example to others who might be tempted to engaged in similar misconduct. WHEREFORE, plaintiffs demand relief as follows: 1. Compensatory damages for plaintiff Alice Mary Garfield in an amount greater than $50,000.00; 2. Compensatory damages for plaintiff Philip James Garfield in an amount greater than $50,000.00; 3. Punitive damages in an amount greater than $50,000.00; and _ i_ SCHKE5SL, GOETZ, SIEVES' S HANSON', P.A. ATTORNEYS l'OK PLAINTIFFS Ronald Motley Hiatt f. Fnlos 1G11 Allen Street Barnwell, SC 29812 CO-COUNSEL FOR PLAINTIFFS Dated: February 22, 1982 Ail 1 I' til- i-i.iiSOAAl. Sl.iiV.iUL. stati: ok klknksuta) ) COUNTY OK HENNLil'IN) ss t* i 6 O Connie Mae Skarp', being first duly sworn upon deposes ;iml r.UUi's Hint on the 2 4 th day of Fnbrunrv, 1982, she served the attached Summons and Complaint upon dc fendan t (s)- below named, personally, by leaving with their registered agent for service of process, C. T. Corporation, lO.th Floor, Midland Bank. Building,'Minneapolis, Minnesota, Hennepin County, by handing to and leaving with Millie Knutson, true and correct copies thereof: GAF Corporation (formerly Ruberoid Corp.) Johns-Manvillc Sales Corporation; Ovens-Corning Fiberglas Corporation, a Delaware corporation Subscribed and sworn to before me this, day of ' ;/, >, 1982 A.V , ,, " /(,,;///, /7____/>" ____ Notary Public ^ LINDA M. BOURGEOIS ? 1 C- 'r'A notary PJOLIC - MINNESOTA | i ',Xr ;7V RAMSEY COUNTY t - A.'- ' My Cl------------- ------------ A'.p JO. 1Q6T t <m <~~^0 V r. >. \h I ir