Document zzjNKLB2zBZGrjdov7GqNQRRB

(united STATES DISTRICT CCURT EASTERN DISTRICT OF NEW YORK IN RE NEW YORK CITY ASBESTOS LITIGATION X INDEX NO. NYAL-PH- 5 o i THIS DOCUMENT RELATES TO: ALL POWERHOUSE CASES VERIFIED CROSS -CLAI y. FOR CONTRAC: The third party defendant, Consolidated Edison Ccmpar. New York, Inc. ("Cor. Edison") by its attorney, Ricr.ard w. 3aoir,ecz, as and for a cross-ciaim against defendant/third-par defendant, 3abcocx & Wilcox, individually and as successor to i w Refractories, Ltd., Standard Refractories,- Ltd. and Heirs 31 Ltd., 1010 Common Street, 3ox 61038, New Orleans, La. "1161, .respectfally alleges upon information and belief: iI FIRST: That the plaintiffs herein have alleged tr.a: {sustained personal injuries or death as a result of exposure t various asbestos containing products at electrical generating stations owned by Con Edison. SECOND: That the plaintiffs herein further allege tr those .injuries were sustained during the construction, mamter and/or repair of electrical generating facilities owned by Cc Edison. THIRD: That beginning prior to approximately 1913 a continuing at least until approximately 1962 Babcock and Wile manufactured and sold to Con Edison and its predecessors r.o "fewer than 74 boilers, and stalled those boilers and steam generating stations owned by Con Edison. e _e A schedule is annexed hereto. The schedule specifies the generating facility a which each Babcock and Wilcox boiler was installed, the date tnat each boiler went into service, the boiler number, the work order number, the Con Edison purchase order number, and the name of the installation contractor. FOURTH: That in addition to the foregoing, Babcock i Wilcox manufactured and sold to Con Edison a nuclear reactor, an installed that nuclear reactor at the Indian Point Generating Station in Buchanan, New York. The location, the reactor number the work order number, the Con Edison purchase order nuAber, anc the name of the installation contractor are included on the Schedule annexed hereto. FIFTH: That the equipment set forth on the annexed schedule was sold and installed pursuant to contracts between 'Babcock and Wilcox and Con Edison. J. SIXTH: That the aforesaid contracts between Babcock a j! -Wilcox and Con Edison incorporated terms and conditions under which Babcock and Wilcox was obligated to work. Babcock and Wilcox was obligated to supply equipment and to perform work i accordance with the specifications and conditions# and in a careful and workmanlike manner. SEVENTH: That under the terms and conditions of the aforesaid contracts between Babcock and Wilcox and Con Edison 2 Ii jpabcock_and'Wilcox was required inter alia to: j 4. SAFEGUARDS IN CONSTRUCTION if ' In the case or a lump Sum Contract, tne Contractor expressly undertaxes ana agrees to provice and maintain it his own cost and expense . . . ail necessary arc proper equipment, apparatus and appliances useful m carrying on the worx and to maxe tne place cr worn ar.c the ways and approaches thereto safe and free from avoidable danger or as may be requirea oy puoiic authority or local conditions, .... The Contractor shall be responsible for any failure or neglect on ns part to perform this covenant. 1 18. DUST OR FfJME CONTROL Whenever demolition or other work of any kind creates harmful dust or fumes, equipment for the protection of property against dust and fumes and also the workmen against the inhalation of "harmful dust or fumes* shall be installed, maintained and effectively operated by tne Contractor as required by law. All such equipment is to be of a type approved by the State, County and/or Municipal regulatory body or in accord with the specifications adopted by such regulate: body and "harmful dust or fumes" is to be as defined ty the Industrial 3oara of the State Labor Department or other governmental body having jurisdiction. 11 jH EIGHTH: That under the terms and conditions of the j I aforesaid contracts between Babcock and Wilcox and Con Edison, i Babcock and Wilcox agreed to indemnify Con Edison. The contract provided as follows or in substantially similar language: 26. .INDEMNIFICATION 'The Contractor shall indemnify and save harmless the Company from and against any and all liability arising fro* injury to person or property occasioned wholly or part by any act or omission of the Contractor, his agents* servants or employees* including any and all expense* legal or otherwise* incurred by the Company i the defense of any claim or suit. 3 I ; --' NINTH: Thar giver, rr.e expedited trial procedure adrrrer > Ii 'iy the Courc in rhese cases, Ccr. Edison has nor yer beer, crcvicer iy plaintiffs and third-parry plaintiffs with me exact locations and rimes at which plaintiffs allege exposure ro asoesrcs containing products. Therefore, Con Edison reserves the rign.t rr supplement this cross-claim m the event that additional i information becomes avaiiacle. TENTH: That by reason of the contracts between 3acccc< .and Wilcox and its predecessors and Con Edison and its predecessors and ail the matters and things set forth herein, 3abccck and Wilcox is contractually obligated to indemnify and same harmless Con Edison for any and all liability and/ox reccve: ; against it by any party m this litigation, and to defend and sa harmless Con Edison and ro reimburse it for all costs and expenses, legal or otherwise, incurred in the defense of mis :actior.. !;' WHEREFORE, the third party defendant, Consolidated Edis :! jiCompany of New York, Inc., demands that pursuant to FRC? Rule II it have judgment over and against defendant/third party defencar Babcock and Wilcox for the amount of any verdict or judgment -h may be recovered herein by any plaintiff, third party plamti or other party against Con Edison, together with the costs and disbursements of this action and all expenses, legal and l Mi otherwise, incurred m the defense thereof. i i! RICHARD W. 3ABINECZ Attorney for Third Party Defendant Consolidated Edison Company of New Yorx, Inc. Address: 4 Irving Place New York, N.Y. 10003 TO: jAHMUTY, DEMERS & MCMANUS, ESQS. Xounsel for Bahcoc* & Wilcox 200 I.U. Wiliets Road Albertson, N.Y. 11507 .'(BY FAX AND BY MAIL) ALL COUNSEL ON SERVICE LIST (BY MAIL) ,I I i* !l i 5 EXHIBIT B