NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4636-05T14636-05T1

DANIEL FACKELMAN and

BARBARA FACKELMAN, h/w,

Plaintiffs-Appellants,

vs.

LAC d'AMIANTE du QUEBEC, LTEE and

RAPID AMERICAN CORPORATION,

Defendants,

and

THE ST. PAUL TRAVELERS

COMPANIES, INC.,

Defendant-Respondent.

__________________________________

Argued: September 19, 2007 - Decided:

Before Judges Cuff, Lihotz and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3352-04.

Hal Pitkow argued the cause for appellants.

Francis X. Manning argued the cause for respondent (Stradley Ronon Stevens & Young, LLP, attorneys; Samuel J. Arena, Jr., of counsel; Mr. Manning and Sean R. Adam, of counsel and on the brief).

The opinion of the court was delivered by

CUFF, P.J.A.D.

This appeal concerns whether the workers' compensation insurer which performed industrial hygiene studies for plaintiff's employer at plaintiff's place of employment had a duty to educate and warn employees of any danger. We hold that the insurer did not have such duty and affirm.

Plaintiff commenced this action against Lac d'Amiante du Quebec, Ltee (Lac d'Amiante), Rapid American Corporation (Rapid American) and The St. Paul Travelers Companies, Inc. (Aetna). Lac d'Amiante and Rapid American mined, manufactured and supplied asbestos products to plaintiff's employer, Owens Corning Fiberglas Corporation (Owens Corning). Aetna performed industrial hygiene studies at the Owens Corning facility in Berlin. Plaintiff was employed by Owens Corning at the Berlin facility, where he was exposed to asbestos, from 1967 to 1968.

In his complaint, plaintiff alleged that Aetna "assumed a duty and contracted to provide [Owens Corning] with information, dust studies, inspections, instructions, supervision, recommendations, assistance, notices, reports, methods, findings, cautions, warnings, designs, devices, equipment, safeguards, guidance, and services to adequately and reasonably provide safe working conditions, and to preserve and protect the life, health and safety" of Owens Corning employees. Plaintiff further alleged that Owens Corning employees depended on Aetna to protect their lives and health, that Aetna knew that Owens Corning was not taking the measures necessary to protect the health of its employees, and that Aetna, through its active and passive negligence, failed to exercise the care and skill required to preserve and protect the health and safety of Owens Corning employees. Plaintiff also asserted that Aetna expressly and impliedly warranted that its undertaking was reasonably accurate, reliable and professionally competent and that Aetna breached its warranties by failing to disclose to Owens Corning and its employees the existence of dangerous conditions at the Berlin facility. Finally, plaintiff alleged that he and other employees at the Berlin facility were third-party beneficiaries of the undertaking between Aetna and Owens Corning and that Aetna's negligence, breach of contract and breach of warranties caused and permitted injury to the third-party beneficiaries.

The facts, viewed in the light most favorable to plaintiff, are as follows. Plaintiff commenced employment at the Berlin facility of Owens Corning in July 1967. He was nineteen years of age. His principal job during the next ten months was a "stripper on the line." Plaintiff explained that he took Kaylo, or asbestos pipe covering, out of a mold and stacked it in a bin. Sometimes the product broke or shattered. Plaintiff gathered the fragments and threw them in a dumpster. The area was dusty. He described the air conditions as "[s]ometimes it was tough to see like a bad, foggy day."

When he commenced his employment, plaintiff was placed on a practice line to determine if he had the dexterity to do the job. His employer gave him no information about asbestos. He was not required to wear a mask or other breathing protection, although "white painting masks" were available for use by employees and some employees wore these masks. Plaintiff also testified that at some time during his employment a co-worker was given a device to wear on his chest by "strangers" to test the air. Some of these strangers examined equipment, some observed how the workers performed their job functions.
According to plaintiff, the employees were not informed of the results of any testing. He expected his employer or the company that performed the tests to inform the employees or their union of the test results and "if it was anything dangerous or something [that] would hurt us or whatever."

Plaintiff left his employment with Owens Corning in May 1968. In 2002, his physician advised him that he had asbestosis.

The record reflects that between 1958 and 1972, Aetna performed various air sample surveys, industrial hygiene studies, and special hazard studies at the Berlin plant. The engineering department of the Philadelphia division of Aetna performed inspection and advisory work for Aetna underwriters on new and existing accounts. Aetna "serviced [its] larger insureds in various safety matters, training programs, literature, helping them hold safety meetings, assisting them as best [they] could in their particular safety program." Between 1958 and 1965 Aetna may have been the only entity performing air sampling at the Berlin plant. Following receipt of results of periodic air sampling, representatives from Aetna met with Owens Corning representatives to review the results, to discuss the Owens Corning response and to offer advice. The purpose of the meetings was to prompt Owens Corning to reduce high exposure levels and to contain the dust in the plant.

According to the record, between 1958 and 1972, there were occasions when dust levels at various places or worksites at the Berlin facility exceeded air quality thresholds. At other times, dust levels were at or under air quality thresholds. During this period, air quality thresholds progressively declined from 10,000,000 particles per cubic foot to 5,000,000 particles per cubic foot and eventually to 2,000,000 particles per cubic foot. The record also reveals that Aetna acknowledged and commented positively when conditions had improved and when masks or other protective devices or measures had been implemented by Owens Corning.

The record also demonstrates that Owens Corning had personnel assigned to workplace safety companywide and at the Berlin facility. In August 1969, Owens Corning adopted a safety program. Upon receipt of the program, Aetna requested its personnel to "attempt to determine whether or not the plant is complying with the program." Aetna personnel were encouraged to advise and help the plant to implement the program. The Owens Corning program recommended the creation of a plant safety committee. The program addressed the entire spectrum of safety issues from workplace accidents and investigations to special hazard surveys that addressed industrial noise, machine guarding, health hazards of materials, fire and explosion, and other industrial exposures. The program anticipated that "Aetna engineers will assist local personnel in their follow-through of a corporate loss control program -- working with management, safety personnel, and supervisors at each plant."

Moreover, the Berlin plant manager confirmed that Owens Corning adopted a more affirmative program to address health hazards posed by asbestos in 1968-69 and that the company consulted with Aetna. The program included education about the health hazards of asbestos, the need to wear respirators, and enforcement of the use of respirators. By July 28, 1971, the Owens Corning training program on health hazards was mandatory for all employees. In 1972, Owens Corning eliminated asbestos as a constituent material in its production processes.

Judge Little granted the Aetna motion for summary judgment. In his oral opinion, the judge found that Aetna had a contract with Owens Corning to make certain studies and did so. He found that Aetna provided the results of the studies and certain recommendations to Owens Corning. In addressing the duty owed by Aetna to Owens Corning, the judge found that "[w]hat Owens did with [the survey results] is Owens' business." The judge then held that "if there was any duty to the employees[,] that duty was owed by Owens." Plaintiff appeals from the order granting Aetna's motion for summary judgment.

Plaintiff contends that Aetna is liable to him because it undertook to perform industrial hygiene surveys, including dust studies of the Berlin plant, which were necessary for the protection of employees of that facility, and that it failed to warn the employees of elevated dust levels of substances, such as asbestos, or educate the employees on measures to avoid or to minimize the danger caused by the substances to which they were exposed. Plaintiff does not assert that Aetna negligently performed these studies. He does allege that Aetna assumed the duty owed by his employer to provide a safe place to work, and that employees knew of Aetna's undertaking and relied on it to inform them of any dangers.

Aetna responds that it performed any and all surveys competently and that it never assumed any duty of the employer to provide a safe place to work for its employees. It argues that the duty plaintiff urges this court to recognize is unsupported by the facts and established legal principles.

The precise issue presented in this appeal has been raised in other cases and decided in favor of the insurer in each instance. Such cases filed in state court have not been the subject of published opinions. The cases filed in federal court applied the law of this state, which expressly rejects plaintiff's theories of liability. See Daraio v. Carey Canada, Inc., 309 F. Supp.2d 706, 709 (E.D. Pa. 2004). Plaintiff urges that the facts of this case demonstrate that liability should be imposed on Aetna because it assumed the duty of the employer to provide a safe place to work, or that plaintiff and other employees reasonably relied on Aetna to communicate to them the known dangers in their work environment. We find no basis in law to reconsider the prior precedent and no factual basis to impose any duty on Aetna to the Owens Corning employees.

Restatement (Second) of Torts