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Gail Garner As Administratrix of the Estate of Angelo Palermo v. Bodily Injury

August 15, 2012


The opinion of the court was delivered by: Siragusa, J.



This diversity asbestos litigation case is before the Court on Defendant's motion to dismiss, filed on April 4, 2012, ECF No. 9, and Plaintiff's cross-motions for (1) leave to amend, filed May 9, 2012, ECF No.18, and (2) leave to file sur-reply, filed June 12, 2012, ECF No. 23. For the reasons stated below, Defendant's motion to dismiss is granted and Plaintiff's applications are denied as futile.


The following facts are taken from the Complaint, filed November 17, 2011, ECF No. 1, and the documents referred to in the complaint or upon which the complaint relies. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) ("Documents that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered."). This action is brought by Gail Garner ("Plaintiff") as administratrix of the estate of her father, Angelo Palermo ("Palermo"). NGC Bodily Injury Trust ("Defendant," or "Trust") is the trust, established in bankruptcy, which assumed asbestos claim liability for National Gypsum Company. During Palermo's life, National Gypsum Company was the market leader in the manufacture, sale, and distribution of asbestos-containing construction insulation products.

Palermo worked as a union insulation mason in the construction industry for various employers from 1937 until 1966. Palermo was exposed to asbestos-containing construction and insulation materials at work, including personally handling and spray coating various asbestos-containing materials. Plaintiff alleges that "[a]s a union mason, [Palermo] would have worked with National Gypsum Company construction and insulation products regularly." Compl. ¶ 14. Palermo also worked for National Gypsum Company directly in 1958.

Palermo died on April 23, 1966, at age 51. He was survived at the time of his death by his wife and three children, including Plaintiff. The death certificate stated that Palermo's cause of death was "acute liver failure due to metastatic cancer due to primary stomach." Id. ¶ 20; Exhibit, Garner Decl., May 2, 2012, ECF No. 14.*fn1 The doctor who signed the death certificate was a resident at the time, and went on to practice cosmetic surgery.*fn2

Plaintiff alleges that Palermo's family did not suspect asbestos exposure as the cause of Palermo's death until 2000, when the family learned that a co-worker of Palermo was diagnosed with mesothelioma.*fn3 Since then, four other asbestos claim trusts have provided compensation to Palermo's family for Palermo's work-related asbestos exposure.

Nation Gypsum Company filed for bankruptcy protection in 1990. In 1993, National Gypsum Company was restructured and renamed Asbestos Claim Management Corporation ("ACMC"). In 2002, ACMC again had to file for bankruptcy reorganization under Chapter 11. The Texas Bankruptcy Court approved the new reorganization plan, which included the creation of Defendant NGC Bodily Injury Trust to resolve all asbestos-related bodily injury claims. The plan was subsequently confirmed by the Texas District Court on August 6, 2003. During the bankruptcy reorganization process, all claims against Defendant were tolled.

Plaintiff filed a claim on behalf of Palermo with Defendant on March 11, 2004. Defendant evaluated Plaintiff's claim using the court approved Claims Resolution Procedures ("CRP") and determined there was insufficient evidence to prove Palermo died of mesothelioma. Plaintiff then requested that the Trust consider Palermo's claim as an Extraordinary Claim under the CRP. The Trust denied this request. Next, Plaintiff requested non-binding arbitration to review the Trust's decision. Such arbitration was held, and the Trust's denial of Palermo's claim was affirmed. Finally, Plaintiff rejected the non-binding arbitration award and requested permission to commence this lawsuit, which the Trust granted on August 30, 2011. Plaintiff filed this action in on November 17, 2011.

Plaintiff also previously filed a similar action on April 5, 2010, against DII Industries, LLC ("DII Industries"). Garner v. DII Industries, LLC, No. 10-CV-6345-CJS, 2011 WL 573567, *1 (W.D.N.Y. Feb. 15, 2011) ("Garner I"). The defendants in that action had assumed asbestos claim liability for Harbison-Walker, among others, and Plaintiff alleged that they were liable for Palermo's death. Id. at *2. The claim was removed from New York State Supreme Court to this Court, and DII Industries filed a motion to dismiss on August 4, 2010. Id. at *1. In its Decision and Order dated February 15, 2011, this Court granted defendant's motion to dismiss on statute of limitations grounds. Id. at *5. The Court held that Plaintiff's claims of personal injury due to asbestos exposure accrued from the time they were aware of the injury, specifically at the time of Palermo's death in 1966. Id.

In the present action, Plaintiff alleges that Defendant is liable for Palermo's death. Plaintiff also makes claims of fraud and breach of fiduciary duty.*fn4 Defendants filed a motion to dismiss the complaint on April 3, 2012, ECF No. 9, pursuant to Fed. R. Civ. P. 12(b)(6). Defendant contends that Plaintiff's claims are barred by collateral estoppel, the applicable statute of limitations, and other available defenses. Plaintiff responded in opposition to Defendant's motion on May 2, 2012, ECF No. 12, and moved for leave to amend the complaint and response on May 9, 2012, ECF No. 18. Additionally, after Defendant filed reply papers, Plaintiff filed motion for leave to file sur-reply in opposition to Defendant's motion to dismiss, ECF No. 23.


Motion to ...

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