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COMER v. TITAN TOOL

February 15, 1995

DELORES A. COMER and PATRICIA V. EDELSON, Individually and as Personal Representatives and Co-Administrators of the Estate of MICHAEL T. COMER, Deceased, Plaintiffs, against TITAN TOOL, INC., Defendant. TITAN TOOL, INC., Third-Party Plaintiff, - against - ROCK & WATERSCAPE SYSTEMS, INC., Third-Party Defendant.

ROBERT W. SWEET, U.S.D.J.


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 In this diversity action for wrongful death, third-party defendant moves, pursuant to Fed. R. Civ. P. 56, for an order granting summary judgment and dismissing the third-party complaint. For the reasons set out below, R&W's motion will be denied.

 The Parties

 Plaintiffs Delores Comer ("Delores"), wife of Michael Comer ("Comer"), the deceased, and Patricia Edelson ("Edelson") Comer's mother, bring this action individually and as Comer's personal representatives and co-administrators of his estate. Delores and Edelson are natural persons. Delores presently resides in British Columbia, Canada and Edelson resides in New York State, where she has resided at all times relevant to this action.

 Defendant and third-party plaintiff Titan Tool, Inc., a New Jersey corporation ("Titan"), is the manufacturer of the paint sprayer that Comer was using when he died, assertedly of electrocution.

 Third-party defendant Rock & Waterscape Systems, Inc., a California corporation ("R&W"), has its principal place of business in California. R&W was Comer's employer at the time of his death and supervised the job site in the Republic of South Africa at which Comer was killed.

 Prior Proceedings

 Plaintiffs filed their complaint in this action on February 24, 1993 and Titan answered on April 14, 1993. Titan filed its third-party complaint, seeking contribution, on April 23, 1993, which was answered by R&W on May 26, 1993. During the latter half of 1993 and throughout 1994 motions were brought and resolved regarding subpoenas, commissions, letters rogatory and fees and expenses relative to depositions sought in South Africa.

 R&W filed the instant motion on June 30, 1994. Titan filed its response on October 13, 1994 and R&W replied on October 17, 1994. Oral argument was held on October 19, 1994.

 Facts

 Comer's occupation was that of rock artist, engaged in sculpting artificial rock formations for animal habitats and other displays at zoos, aquariums, theme parks and resorts. Although this occupation is itinerant in nature and Comer resided in numerous locations in the years prior to his death, he maintained his permanent address in New York City, and paid his federal, state and local taxes as a New York resident. He maintained a New York State driver's license.

 Comer died on March 4, 1992, in Sun City, Bophuthatswana, South Africa, while employed by R&W. Plaintiffs allege that he was electrocuted while operating an electric paint sprayer manufactured by Titan. He was twenty-nine years old at the time of his death. In June of 1992 R&W's insurance carrier paid Delores $ 102,500 in death benefits and burial expenses. R&W filed a Workers' Compensation Notice of Injury reporting Comer's death with the Florida Department of Labor in June of 1994, more than two years after Comer's death.

 Between 1988 and the time of Comer's death, Delores resided with Comer in the various locales of Comer's employment assignments, which ranged in duration from three months to over a year. Delores and Comer were married in 1991. Prior ...


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