Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

GAF CORP. v. UNITED STATES

August 13, 1984

GAF CORPORATION, Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, District Judge:

 In recent years, numerous asbestos workers have brought personal injury and wrongful death suits against the GAF Corporation, alleging harmful exposure to asbestos fibers contained in thermal insulation products manufactured by GAF. In this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80, GAF seeks indemnity, contribution or apportionment from the United States for the money GAF has expended in settling 766 of those asbestos suits. See Lockheed Aircraft Corporation v. United States, 460 U.S. 190, 103 S. Ct. 1033, 74 L. Ed. 2d 911 (1983) (holding that manufacturer may seek indemnity from the United States for its tort liability to civilian employees).

 As a threshold question the government challenges GAF's right to bring this suit and has filed a motion to dismiss for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1). The issues presented in that motion are, first, whether GAF prematurely filed its complaint before the completion of administrative proceedings; and, second, whether GAF's administrative claim complied with the administrative presentation-of-claim requirements of the FTCA.

 The Court finds that GAF's complaint was not prematurely filed, but that the administrative claim did not comply with the FTCA's requirements and that consequently this Court lacks subject matter jurisdiction over this action and must dismiss the complaint.

 BACKGROUND

 A prerequisite to the filing of suit against the United States under the FTCA is the submission of an administrative claim to the appropriate federal agency or agencies. A claimant may not file suit in district court until that claim "shall have been finally denied by the agency." 28 U.S.C. § 2675(a). Should the agency fail to make final disposition of a claim within six months, such failure, "at the option of the claimant," constitutes a final denial for purposes of filing suit.

 Subsequently, on May 6, 1983, -- more than six months after the filing of the original notice of claim but less than six months after the filing of the amended notice of claim -- GAF filed its complaint here under the FTCA. The complaint explicitly relies upon the original Notice of Claim of November 2, 1982, as its administrative predicate, and, of necessity, does not seek recovery for any of the claims that were added in the amended notice of claim of December 30, 1982. It states that the government's failure to make final disposition of the November notice within six months gave GAF the option to file suit.

 GAF alleges a number of different theories in the complaint to justify recovery from the United States. Plaintiff states that the 766 claimants were employed by the United States and government contractors when exposed to asbestos. It adds that the United States specified that asbestos be used in the insulation products being installed; the United States knew of the hazards of asbestos yet failed to provide a safe work-place environment; it sold asbestos to GAF without warning GAF of asbestos' dangers; and that it induced or encouraged GAF to increase its production of asbestos products.

 Despite these various theories of liability, the complaint treats all of the 766 claimants indiscriminately in the complaint. GAF does not treat any of the claims individually, or sort out the theories of liability and apply them to specific underlying claims. Rather, GAF's complaint speaks of the claims only as a group, despite the fact that the claims arise from individuals scattered across the country who worked for different employers.

 The complaint seeks $2,050,369.71 for the full amount of all settlements paid by GAF to claimants in the 766 asbestos cases, as well as $1,504,125.28 for all legal costs associated with settlement and defense of the cases.

 On August 15, 1983, the government filed its motion to dismiss, in which it makes essentially two arguments. First, that the six months that GAF is required to wait before filing suit must be calculated from the amended notice of claim, not the original. Since less than six months elapsed from the submission of the amended notice of claim on December 30, 1982, to the filing of the complaint, the government argues that this Court lacks subject matter jurisdiction. Second, the government argues that the notice of claim, be it the original or the amended notice, fails to provide the minimum amount of information necessary to constitute a valid notice of claim.

 The Court rejects the government's first argument but accepts the second. As shown below, the proper date for reckoning the six months is November 2, 1983, the date of the original notice of claim. Consequently, GAF's lawsuit is not premature. However, the Court must dismiss the complaint for lack of subject matter jurisdiction for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.