Document rpyJbXNrNgo2Rj9RqYDBEJY4E

DVERSARYPROCEEDING COVER SHEET (Instruclions on Reverse) ADVERSARY PROCEEDING NUMBER (Court Use 0 nly) THIRD-PARTY PLAINTIFF Armstrong World Industries, Inc. THIRD-PARTY DEFENDANTS Monsanto Company and Solutia, Inc. ATTORNEYS (Firm Name, Address,and Telephone No.) Joanne P. Pinckney (I.D. No. 3344) Bouchard Margules & Friedlander 222 Delaware Avenue, Suite 1400 Wilmington, DE 19801 (302) 573-3500 (302) 573-3501 Facsimile ATTORNEYS (If Known) PARTY (Check one box only) 1 U.S. PLAINTIFF 2 U.S. DEFENDANT H 3 U.S. NOT A PARTY CAUSE OF ACTION (WRITE A BRIEF STATEMENT OF CAUSE OF ACTION, INCLUDING ALL U.S. STATUTES INVOLVED) Suit for declaratory judgment regarding indemnification and/or contribution for liability. 454 435 458 424 To Recover Money or Property To Determine Validity. Priority, or Extent of a Lien or O ther Interest in Property To obtain approval for the sale of both the interest of the estate and of a co-owner n property To object or to revoke a discharge 11 U.S.C. 727 NATURE OF SUIT (Check the one most appropriate box only.) 455 426 a 434 o 457 To rovoko an order of confirmation Ofa Chap. 11,Cap. 12, or Chap. 13 P tan To determine the dischargeability Of a debt 11 U.S.C. 523 To obtain an injunction or other equitable relief To subordinate any allowed claim or Interest except where such subordination is provided in a plan 456 To obtain a declaratory judgment Relating to any of foregoing causes Of action a 459 To determino a claim or cause of action removed to a bankruptcy court 498 Othe r (specify) ORIGIN OF PROCEEDINGS (Check one box only.) a 1 Original a 2 Removed Proceeding Proceeding 0 4 Reinstated Or Reopened 5 Transferred from Another Bankruptcy Court o CHECK IF THIS IS A CLASS ACTION UNOER F.R.C.P, 23 DEMAND NEAREST THOUSANO OTHER RELIEF SOUGHT Declaration that Third-Party Oefendants are solely liable on claims. a JURY DEMANO BANKRUPTCY CASE IN WHICH THIS ADVERSARY PROCEEDING ARISES NAME OF DEBTOR Armstrong World Indus ries, Inc. BANKRUPTCY CASE NO. 00-4471 (RJN) DISTRICT IN WHICH CASE IS PENDING Oelaware DIVISIONAL OFFICE NAME OF JUDGE Randall J. Newsome PLAINTIFF RELATED ADVERSARY PROCEEDING (IFANY) DEFENDANT ADVERSARY PROCEEDING NO. DISTRICT FILING FEE (Checkone box only.) DIVISIONAL OFFICE a FEE ATTACHEO FEE NOT REQUIRED NAME OF JUDGE a FEE IS OEFERREO DATE January 31, 2003 PRINT NAME Joanne P, Pinckney SIGNATURE OF ATTORNEY (OR PLAINTIFF) Is! Joanne P. Pinckney HARTOLDMONOQ95412 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re Chapter 11 ARMSTRONG WORLD INDUSTRIES, INC., et al., Case No. 00-4471 (RJN) ;Debtors. DIANA BIEHN and LISA BARNES SCHULYER, Executrixes of the ESTATE OF PATRICIA BARNES, and HERBERT FRIESE, individually Plaintiffs, v. (Jointly Administered) Civil Action No. 02CV5109 (JBS) ARMSTRONG WORLD INDUSTRIES, INC. Defendant. ARMSTRONG WORLD INDUSTRIES, INC. Third-Party Plaintiffs, v. MONSANTO COMPANY, a Delaware Corporation and SOLUTIA, INC., a Delaware Corporation Adv. Pro. No. Third-Party Defendants. THIRD PARTY COMPLAINT OF DEFENDANT AND THIRD-PARTY PLAINTIFF, ARMSTRONG WORLD INDUSTRIES, INC. TO THE HONORABLE RANDALL J. NEWSOME, UNITED STATES BANKRUPTCY COURT JUDGE: Defendant, Armstrong World Industries, Inc. ("AWI"), through its attorneys, files this Third- Party Complaint and in support thereof avers as follows: JURISDICTION AND VENUE 1. This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. 1334(b) and (e). HARTOLDMONOQ95413 2. This action is a non-core proceeding pursuant to 28 U.S.C. 157(b). This adversary proceeding, however, is related to AWI's chapter 11 case and, thus, this Court may preside over the adversary proceeding. AWI consents to the submission of this adversary proceeding to this Court pursuant to 28 U.S.C. 157(c). 3. AWI submits that it consents to entry of final orders and judgments by this Court pursuant to Rule 7008(a) of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"). ' 4. Venue is proper before this Court pursuant to 28 U.S.C. 1408 and 1409. FACTUAL BACKGROUND 5. On December 6, 2000 (the "Commencement Date"), AWI and two of its affdiates (collectively, the "Debtors"), each commenced a case under chapter 11 of title 11 of the United States Code. 6. By previous order of this Court, the chapter 11 cases of the Debtors are being jointly administered pursuant to Fed. R. Bankr. P. 1015. 7. Since the Commencement Date, the Debtors have remained debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. 8. On or about December 12, 2002, Plaintiffs filed an Amended Complaint against AWI, alleging that a ceiling tile product manufactured by AWI and installed at Burlington County College ("BCC") was coated with a plastisol formulation that included as a component polychlorinated biphenyls (PCBs), and that those ceiling tiles had injured Patricia Barnes and caused her to contract lung cancer. A true and correct copy of the Amended Complaint filed in the Diana Biehn and Lisa Barnes Schulyer, Executrixes of the Estate of 2 HARTOLDMON0095414 Patricia Barnes and Herbert Friese, Individually v. Armstrong World Industries Inc, case (No. 1:02cv05109) in the U.S. District Court for the District of New Jersey is attached hereto as Exhibit "A" (the "Barnes Complaint"). 9. On or about December 30, 2002, upon the request of AWI and with the consent of Plaintiffs, U.S. District Judge Jerome Simandle entered an Order granting AWI an extension of time through and including February 1, 2003, in which to answer or otherwise respond to the Complaint. 10. This Third-Party Complaint is being filed pursuant to Rule 14 of the Federal Rules of Civil Procedure, which permits a Third-Party Complaint to be filed without leave of court at any time prior to or within ten days after the date on which the Answer to the Complaint is filed. 11. Third-Party Plaintiff AWI is a corporation organized and existing under the laws of the State of Pennsylvania, with its principal place of business located at 313 W. Liberty Street, Lancaster, Pennsylvania 17603. 12. Third-Party Defendant Monsanto Company ("Monsanto") is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business at 800 N. Lindbergh Boulevard, St. Louis, Missouri 63141. 13. Third-Party Defendant Solutia, Inc. ("Solutia") is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business at 10300 Olive Boulevard, St. Louis, Missouri. 14. The Estate of Plaintiff-decedent, Patricia Bames, alleges that Patricia Barnes contracted lung cancer at BCC through exposure to ceiling tiles containing PCBs. HARTOLDMON0095415 According to the Barnes Complaint, the ceiling tiles at issue were coated with Aroclor 1254, a chemical consisting of, or containing, PCBs. 15. AWI did not manufacture or supply Aroclor 1254. AWI purchased Aroclor 1254 exclusively from the manufacturer of that chemical product, Third-Party Defendant Monsanto, for the purpose of using it in a fire retardant plastisol coating to be applied to certain ceiling tiles manufactured by AWI. COUNT I ARMSTRONG WORLD INDUSTRIES. INC, v. MONSANTO COMPANY 16. AWI incorporates by reference the allegations of paragraphs 1 through 15, inclusive, as if fully set forth herein. 17. At all times material to the Barnes Complaint, Monsanto was in the business of manufacturing, supplying, distributing and/or selling Aroclor 1254. 18. If Plaintiffs establish that they suffered the injuries and damages as alleged (which allegations AWI denies), the injuries and damages were caused solely by Monsanto's negligence in failing to provide a safe product in the following respects: a. carelessly and negligently manufacturing, distributing, supplying and/or selling a PCB-containing product in a dangerous condition so as to cause injuries; b. carelessly and negligently creating and allowing a dangerous condition to exist by failing to provide proper instructions for the handling of and exposure to a PCB-containing product; c. failing to exercise the requisite degree of care and caution in the manufacture, distribution, supply and sale of a PCB-containing product; d. failing to warn of the dangers of a PCB-containing product when Monsanto knew or should have known that the use of and/or exposure to a PCB-containing product would cause disease and injury; 4 HARTOLDMON0095416 e. failing to test a PCB-containing product in order to ascertain the dangers involved; f. failing to remove a PCB-containing product from the market when Monsanto knew or should have known of the hazards of exposure to it; and g. failing to use due care and caution under the circumstances. 19. As a result of the aforesaid acts and omissions, Monsanto is solely liable to Plaintiffs for any alleged injuries and damages they may have suffered. 20. Plaintiffs have alleged that ceiling tiles supplied by AWI were not safe for their intended use because they were improperly designed, contained no instructions for their proper use and were otherwise defective. If, as a result of Plaintiffs' claims of improper design, inadequate instructions or other defect, AWI is held liable for all or a part of such injuries or damages as Plaintiffs may have sustained, Monsanto is the party primarily liable for such injuries and damages, and is liable to AWI by way of indemnification for all or some of such damages. 21. Plaintiffs have alleged that AWI is liable in strict liability pursuant to the common law of the State of New Jersey. If, as a result of Plaintiffs' claims of strict liability, AWI is held liable for all or a part of such injuries or damages as Plaintiffs may have sustained, Monsanto is the party primarily liable for such injuries and damages, and is liable to AWI by way of indemnification for all or some of such damages. 22. In the alternative, if as a result of the matters alleged in the Bames Complaint AWI is held liable for all or a part of such injuries or damages as Plaintiffs may have sustained, Monsanto is jointly and/or severally liable with AWI to Plaintiffs for such injuries and damages, and is liable over to AWI by way of contribution for all such damages. HARTOLDMONOQ95417 WHEREFORE, AWI demands: a. if there is any liability to Plaintiffs, judgment that Monsanto is solely liable to Plaintiffs; b. in the event that a judgment is obtained by Plaintiffs against AWI, that AWI may have judgment over and against Monsanto by way of indemnification and/or contribution for all or part of the judgment against AWI, together with costs; and c. such other relief as the Court may deem appropriate under the circumstances. COUNT II ARMSTRONG WORLD INDUSTRIES, INC, v. SOLUTIA. INC. 23. AWT incorporates by reference herein the allegations of paragraphs 1 through 22, inclusive, as if fully set forth herein. 24. As of September 1, 1997, Solutia, Inc. (''Solutia") assumed all or some of the assets and liabilities of the chemical business formerly owned and operated by Monsanto. 25. At certain times which are or may be material to the Barnes Complaint, Solutia was in the business of manufacturing, supplying, distributing and/or selling Aroclor 1254, or has assumed liability for such activities of Monsanto. 26. If Plaintiffs establish that they suffered the injuries and damages as alleged (which allegations AWI denies), the injuries and damages were caused solely by Monsanto's negligence in failing to provide a safe product in the following respects: a. carelessly and negligently manufacturing, distributing, supplying and/or selling a PCB-containing product in a dangerous condition so as to cause injuries; b. carelessly and negligently creating and allowing a dangerous condition to exist by failing to provide proper instructions for the handling of and exposure to a PCB-containing product; 6 HARTOLDMON0095418 c. failing to exercise the requisite degree of care and caution in the manufacture, distribution, supply and sale of a PCB-containing product; d. failing to warn of the dangers of a PCB-containing product when Monsanto knew or should have known that the use of and/or exposure to a PCB-containing product would cause disease and injury; e. failing to test a PCB-containing product in order to ascertain the dangers involved; f. failing to remove a PCB-containing product from the market when Monsanto knew or should have known of the hazards of exposure to it; and g. failing to use due care and caution under the circumstances. 27. As a result of the aforesaid acts and omissions, Monsanto is solely liable to Plaintiffs for any alleged injuries and damages they may have suffered, and Solutia has assumed all or part of such liability from Monsanto. 28. Plaintiffs have alleged that ceiling tiles supplied by AWI were not safe for their intended use because they were improperly designed, contained no instructions for their proper use and were otherwise defective. If, as a result of Plaintiffs' claims of improper design, inadequate instructions or other defect, AWI is held liable for all or a part of such injuries or damages as Plaintiffs may have sustained, Solutia is the party primarily liable for such injuries and damages, and is liable to AWI by way of indemnification for all or some of such damages. 29. Plaintiffs have alleged that AWI is liable in strict liability pursuant to the common law of the State ofNew Jersey. If, as a result of Plaintiffs' claims of strict liability, AWI is held liable for all or a part of such injuries or damages as Plaintiffs may have sustained, Solutia is the party primarily liable for such injuries and damages, and is liable to AWI by way of indemnification for all or some of such damages. 7 HARTOLDMON0095419 30. In the alternative, if as a result of the matters alleged in the Barnes Complaint, AWI is held liable for all or a part of such injuries or damages as Plaintiffs may have sustained, Solutia is jointly and/or severally liable with AWI to Plaintiffs for such injuries and damages, and is liable over to AWI by way of contribution for all such damages. WHEREFORE, AWI demands: a. if there is any liability to Plaintiffs, judgment that Solutia is solely liable to Plaintiffs; b. in the event that a judgment is obtained by Plaintiffs against AWI, that AWI may have judgment over and against Solutia by way of indemnification and/or contribution for all or part of the judgment against AWI, together with costs; and c. such other relief as the Court may deem appropriate under the circumstances. BOUCHARD MARGULES & FRIEDLANDER CO-COUNSEL: Stephen Karotkin, Esquire Debra A. Dandeneau, Esquire WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 (212)310-8000 COUNSEL FOR THE DEBTORS AND DEBTORS IN POSSESSION /s/ Joanne P. Pinckney Joanne P. Pinckney (#3344) 222 Delaware Avenue, Suite 1400 Wilmington, Delaware 19801 (302) 573-3500 SPECIAL LITIGATION AND CONFLICTS COUNSEL FOR THE DEBTORS AND DEBTORS IN POSSESSION Craig F. Turet, Esquire Duane Morris LLP 4200 One Liberty Place Philadelphia, Pennsylvania 19103-7396 (215)979-1110 LEAD LITIGATION COUNSEL TO DEBTORS AND DEBTORS IN POSSESSION DATED: January 31, 2003 8 HARTOLDMON0095420 EXHIBIT A HARTOLDMON0095421 01/31/03 FRI 11:46 FAX 305 374 7159 W.G 4 M LLP A'iAi,UK ii, suite 3000 Atriuxn Way Ml IiBUtul, "Hew Jersey 08054 Attorneys for the plaintiffs (856) 727-1991 @002 ' h-Ls'r' IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY " /; 3u DIANA BIEHN and LISA BARNES SCHULYER, Executrixes of the ESTATE OF PATRICIA BARNES, and . HERBERT FRXESE, individually !W,;ws Cuuxr CIVIL ACTION NO. 0ZCV5109(JSS) Plaintiff(s) vs. 1 . ARMSTRONG .WORLD INDUSTRIES, INC. Defendant() OPlOTNAi. I,tj Gtv-~9lW Aii Sh CLERK AHENDSP COMPLAINT AND TORY KKHftNP. Plaintiffs, Diana Biehn, Executrix of the Estate of Patricia Bamee, residing at 352 Shady Lane in the Boro of H&rlton, County of Burlington and State of Nov Jersey, by way of Complaint against the defendant, say3i JURISDICTION AMP.VENUE 1. Jurisdiction is based upon diversity of citicenship and jurisdictional amount pursuant to 28 U.S.C. section 1132, and 28 U.S.C. section 1333. ' 2. Plaintiffs/' Diana Biehn, Lisa Barnes Schuiyor and Herbert Friese are residents of the State of Nov Jersey. 3. Defendant, Armstrong`World Industries, Inc, has its principle place qf business in the Commonwealth ef Pennsylvania. HARTOLDMON0095422 01/31/03 FRI 11:46 FAI 30? 374 7159 ff.G 4 H LLP @003 World Industries Inc., filed for bankruptcy. --:---- ' 5. Patricia Barnes was diagnosed vith cancer on March 9, 2001 and her cause of action did not accrue until that date 6. The matter in controversy exceeds, exclusive of interests and casts, the sum of one hundred thousand dollars. (5100,000.00) 7. Venue lies in this District pursuant to the provisions of 2B u.s.c. section 1391 in that! (a) One or more of the plaintiffs reside in this district ,* (b) A substantial part of the events and omissions giving rise co tbs claim occurred in this District. ' FIRST COPOT 1. In or about 1970 defendant, Armstrong World industries Inc., hereinafter referred tD as Armstrong, was engaged in the business of manufacturing, designing, assembling and/or distributing certain ceiling tiles, coated with Arocler 1254,a, substance containing a chemical known as FCB. . 2. in or about 1970 the defendant, Armstrong, did design, manufacture, assemble and/or otherwise distribute or caused to be distributed, the aferasaid ceiling tiles. Said ceiling tiles were caused to be installed in various areas at the Burlingten County College, Burlington, New Jersey. 3. The flailing, tiles that defendant, Armstrong, made available were not safe for their intended use in that they were improperly designed, contained no instructions for their 2 HARTOLDMON0095423 01/3l/03_FRI. 11:47 FAX 305 374 7159 W.G k K LLP <2)004 __ _____ otherwise defective. Specifically, they contained PCB' a a _ . substance at the tine of its use, known to be a probable human ` carcinogen4. On or about March 9, 2001 Patricia Barnas was diagnosed with lung cancer. 5. As a direct and proximate result of the aforegoing, plaintiff's decedent, Patricia Barnes, was caused to contract cancer, sustained severe, permanent and crippling injuries; has suffered great pain and anguish of mind and body was confined for a long period of time; became seriously j| . . incapacitated and restricted in her normal activities; had to - undergo medical treatment; continued to endure much physical ' and mental pain and suffering, disability and permanent injury and has otherwise been damaged- " S. As a further direct and proximate result and .effect of : the aforegoing, plaintiffs' decedent, Patricia Barnes, was ,. caused to suffer certain severe and permanent personal . .. . injuries- as hereinabove set forth; had., suffered great pain, discomfort and mental anguish, had been forced to expend large suns of money for hospitalization, medical treatment and nursing care in an effort to cure said injuries; had been prevented from attending to her normal daily, economic. and social pursuit*, thereby resulting in a loss of income; and has otherwise bean damaged for which defendant, Armstrong, is liable in strict liability pursuant to the common low of the State of New Jersey.77 ` --i WHEREFORE, . plaintiffs, Diana Bielm and Lisa Barnes 3 . .. HARTOLDMON0095424 01/31/03 FRI 11:47 FAI 308 374 7189 Tf.G k M LLP 21008 ' deceased demands judgment against: the defendant, Armstrong, for such sums as would reasonably and properly compensate the Estate of Patricia Barnes for her damages in accordance with the laws of the State of New Jersey, together with interest ' |j . . . . and costs of suit. SE^QJffl^LJ^ONT 1 Plaintiff repeats and incorporate* each and every allegation contained in the previous counts but for the sake - of brevity 6ame are not set forth herein at length. 2. The plaintiff, Herbert Fries, is the husband of the plaintiff, Patricia Barnes, deceased, and ie entitled to her . aorvtces and society., . 3. The plaintiff, Herbert Fries*, va* deprived of his wife's consortium, Society and services. 4. The plaintiff, Herbert Friase, had been caused to incur great expenses for medical- treatment in an effort to cure his' . wife of the injuries caused her by the defendant's negligence. ' ' . WHEMFOjtH,. plaintiff, Herbert rrieae, demands .judgment, against the defendant-, Armstrong, for damages plus interest and cost of suit. THXBELCiQnWT 1. Plaintiff repeats and incorporates each and every allegation contained in the First, and Second counts but for i the sake of brevity the same are not set forth herein at length. , 2. Patricia Barnes left her surviving her husband, Herbert Frieze, and two daughters, Diana fiiehn and Lisa Barnes, being* 4 HARTOLDMON0095425 01/31/03 FRI 11:48 FAZ 305 374 7158 W.G k M LLP @000 ........... * -` ` i . . . .................. ' instituted on their--behalf. *~1 ' 3. This action is commenced within two years from the date of death of Patricia Barnes. 4. As a result of the negligence of the defendants as aforesaid, and as a result of the death of Patricia Barnes, plaintiffs, Herbert Friese, Diana aieho and Liea Barnes have suffered pecuniary loss including but not limited to loss of income, loss of companionship and loss of advice and guidance and were otherwise damaged. .. WHEREFORE, plaintiff, Diana Biehn and Lisa Barnes Schuyler, Executrixes of the Estate of Patricia Barnes, deceased, 'demands judgment. against the . defendant, Armstrong, for damages, interest and cost of suit. pommessm. 1. Plaintiff repeats and incorporates each- and every allegation contained in the First Count- but-. for the. sale* of brevity are not sot forth- herein at length- . -2. In or about .1970 the defendant,. Armstrong, - thaw or should have known ef the potential health risks to people exposed to the Axoclor 1254. Despite this knowledge, the defendant, Armstrong failed to notify its customers of the potential health risks. 3. The failure q defendant, Armstrong to notify its customers was reckless? , intentional, willful a4nd in wanton disregard ef the health and well boing of its customers and people exposed to the product containing Arodlor 1254 and resulted in the continuous' exposure of this plaintiff s HARTOLDMON0095426 01/31/03 FRI 11:40 FAX 305 3T4 7158 W.G k M LLP @007 _____ OTE&EPORE, the plaintiff, Diana- Bi oho,. Lisa Barnes Schuyler, Executrixes of the Estate of Patricia Barnes and Herbert rriese, individually demands judgement against the defendant, Armstrong World Industries, Inc. for Such sums as would punish and deter the defendant, Armstrong World Industries Inc-, from engaging in such conduct and for punitive damages in accordance with the laws of the State of New Jersey, together with interest, attorneys fees and costs of suit. OTJIM Plaintiffs hereby demand a trial by jury as to all issues, contained herein. . :, 6 HARTOLDMON0095427 01/31/03 FRI 11:40 FAI 305 374 7150 i< W.G & M LLP 0005 C^TmCATISN GARY D. GINSBERG4 Esguire, hereby certifies that there axe actions pending involving the subject matter under docket numbers 95-2849 and 01-05321 -before the Honorable Jerome B. 1 ) Simandle and Joel B, Rosen. . I certify the foregoing *, statements made by me are true. 1 am aware that if any of the foregoing statements made by me are wilfully falsd, I am subject to punishment. Datadt December 6, 2002 7 HARTOLDMON0095428