{ "id": 8526694, "name": "MARIE R. LEONARD, Administratrix of the Estate of Samuel L. Leonard, Deceased v. JOHNS-MANVILLE SALES CORPORATION, A Delaware Corporation; UNARCO INDUSTRIES, INC., An Illinois Corporation; GAF CORPORATION, A Delaware Corporation; ARMSTRONG CORK COMPANY, A Pennsylvania Corporation; RAYBESTOS-MANHATTAN, INC., A Connecticut Corporation; OWENS-CORNING FIBERGLASS CORPORATION, A Delaware Corporation; PITTSBURGH CORNING CORPORATION, A Pennsylvania Corporation; THE CELOTEX CORPORATION, A Delaware Corporation; NICOLET INDUSTRIES, A Pennsylvania Corporation; FORTY-EIGHT INSULATION, INC., An Illinois Corporation; EAGLE-PICHER INDUSTRIES, INC., An Ohio Corporation; STANDARD ASBESTOS & INSULATION CO., A Missouri Corporation; OWENS-ILLINOIS, INC., An Ohio Corporation; H. K. PORTER, A Pennsylvania Corporation; NATIONAL GYPSUM CO., A Delaware Corporation; FIBREBOARD CORPORATION, A Delaware Corporation; GARLOCK, INC., A Foreign Corporation; KEENE CORPORATION, A New Jersey Corporation; NORTH AMERICAN ASBESTOS CORPORATION, A Foreign Corporation; CAREY CANADIAN MINES, LTD., A Foreign Corporation; LAKE ASBESTOS OF QUEBEC, LTD., A Foreign Corporation; AMATEX CORPORATION, A Pennsylvania Corporation; SOUTHERN ASBESTOS COMPANY", "name_abbreviation": "Leonard v. Johns-Manville Sales Corp.", "decision_date": "1982-11-16", "docket_number": "No. 8214SC22", "first_page": "454", "last_page": "458", "citations": [ { "type": "official", "cite": "59 N.C. App. 454" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "148 A.L.R. 1126", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1943, "pin_cites": [ { "parenthetical": "situs state's rule not allowing contribution between joint tort-feasors is a substantive rule" } ], "opinion_index": 0 }, { "cite": "26 S.E. 2d 911", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "parenthetical": "situs state's rule not allowing contribution between joint tort-feasors is a substantive rule" } ], "opinion_index": 0 }, { "cite": "223 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607842 ], "year": 1943, "pin_cites": [ { "parenthetical": "situs state's rule not allowing contribution between joint tort-feasors is a substantive rule" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0360-01" ] }, { "cite": "146 S.E. 2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "266 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561149 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0458-01" ] }, { "cite": "113 S.E. 2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621782 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0339-01" ] }, { "cite": "75 S.E. 2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617001 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0619-01" ] }, { "cite": "148 S.E. 2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559889 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0565-01" ] }, { "cite": "4 S.E. 2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "216 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600460 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nc/216/0333-01" ] }, { "cite": "229 S.E. 2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557448 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0156-01" ] }, { "cite": "73 S.E. 2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "236 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627394 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/236/0663-01" ] }, { "cite": "65 S.E. 2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 600", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614183 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0600-01" ] }, { "cite": "Va. Code Ann. \u00a7\u00a7 65.1-41", "category": "laws:leg_statute", "reporter": "Va. Code Ann.", "opinion_index": 0 }, { "cite": "277 S.E. 2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "221 Va. 979", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2138810 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/va/221/0979-01" ] }, { "cite": "75 S.E. 2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615939 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0559-01" ] } ], "analysis": { "cardinality": 548, "char_count": 9963, "ocr_confidence": 0.738, "pagerank": { "raw": 2.2436977407863088e-07, "percentile": 0.7804184722738662 }, "sha256": "a29bd1cc56a9f3b1032415ba5a8f0790803a767a0121c441ff8c45cb0f25565c", "simhash": "1:1ca57cbae8c828dc", "word_count": 1579 }, "last_updated": "2023-07-14T18:55:54.350150+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges VAUGHN and WHICHARD concur." ], "parties": [ "MARIE R. LEONARD, Administratrix of the Estate of Samuel L. Leonard, Deceased v. JOHNS-MANVILLE SALES CORPORATION, A Delaware Corporation; UNARCO INDUSTRIES, INC., An Illinois Corporation; GAF CORPORATION, A Delaware Corporation; ARMSTRONG CORK COMPANY, A Pennsylvania Corporation; RAYBESTOS-MANHATTAN, INC., A Connecticut Corporation; OWENS-CORNING FIBERGLASS CORPORATION, A Delaware Corporation; PITTSBURGH CORNING CORPORATION, A Pennsylvania Corporation; THE CELOTEX CORPORATION, A Delaware Corporation; NICOLET INDUSTRIES, A Pennsylvania Corporation; FORTY-EIGHT INSULATION, INC., An Illinois Corporation; EAGLE-PICHER INDUSTRIES, INC., An Ohio Corporation; STANDARD ASBESTOS & INSULATION CO., A Missouri Corporation; OWENS-ILLINOIS, INC., An Ohio Corporation; H. K. PORTER, A Pennsylvania Corporation; NATIONAL GYPSUM CO., A Delaware Corporation; FIBREBOARD CORPORATION, A Delaware Corporation; GARLOCK, INC., A Foreign Corporation; KEENE CORPORATION, A New Jersey Corporation; NORTH AMERICAN ASBESTOS CORPORATION, A Foreign Corporation; CAREY CANADIAN MINES, LTD., A Foreign Corporation; LAKE ASBESTOS OF QUEBEC, LTD., A Foreign Corporation; AMATEX CORPORATION, A Pennsylvania Corporation; SOUTHERN ASBESTOS COMPANY" ], "opinions": [ { "text": "WELLS, Judge.\nThe sole question before us is whether we will apply the Virginia rule or the North Carolina rule with regard to whether a third party may defeat a negligent employer\u2019s subrogation rights when the injured employee sues the third party at common law after recovering worker\u2019s compensation benefits from his employer or his employer\u2019s insurance carrier. Both North Carolina and Virginia law are clear to the effect that a negligent third party may not seek contribution from a jointly negligent employer when the employee obtains a judgment against the third party. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E. 2d 768 (1953); Virginia Electric and Power Co. v. Wilson, 221 Va. 979, 277 S.E. 2d 149 (1981). Under the Virginia Workmen\u2019s Compensation Act, the employer is allowed to recoup from a negligent third party any money paid to its employee under the Act. See Va. Code Ann. \u00a7\u00a7 65.1-41 to -43 (1980). Such a recoupment by the employer is subject to a pro rata deduction of attorney fees and costs for the benefit of the claimant. Va. Code \u00a7 65.1-42. Virginia statutory and case law is conspicuously lacking in any means by which the third party may defeat the employer\u2019s right to subrogation; it appears that Virginia employers are entitled to recoup sums paid regardless of whether their negligence contributed to the employee\u2019s injury for which he seeks recovery from the third party. See 2A Larson\u2019s, Workmen\u2019s Compensation Law, \u00a7 76.20. This is the majority rule. 2A Larson\u2019s \u00a7 75.22.\nNorth Carolina appellate courts developed a rule through which the third party, when sued at common law by an injured employee who has recovered from the employer a worker\u2019s compensation award, could prove the employer\u2019s concurring negligence and thereby defeat the employer\u2019s recovery of sums paid or payable to the injured worker. See Essick v. Lexington, 233 N.C. 600, 65 S.E. 2d 220 (1951); Larson\u2019s \u00a7 75.22. This rule is based on the proposition that a negligent party should not be allowed to take advantage of his own wrong. Lovette v. Lloyd, 236 N.C. 663, 73 S.E. 2d 886 (1953). In 1959, the General Assembly enacted what is now G.S. 9740.2(e), codifying the rule in Essick. Although the North Carolina rule does not subject the employer to joint liability at common law or to actions for contribution brought by the negligent third party, it does require the employer to help pay for injuries caused by its negligence.\nGenerally, our courts still apply the law of the state of the plaintiff\u2019s injury, the lex loci delicti. Henry v. Henry, 291 N.C. 156, 229 S.E. 2d 158 (1976); Suskin v. Hodges, 216 N.C. 333, 4 S.E. 2d 891 (1939). We must take judicial notice of the law of our sister states. G.S. 8-4; Thames v. Nello L. Teer Co., 267 N.C. 565, 148 S.E. 2d 527 (1966). We apply the law of other states, even when we are not precluded by the U.S. Constitution from applying our own law, under the doctrine of comity. Ellison v. Hunsinger, 237 N.C. 619, 75 S.E. 2d 884 (1953). Comity will not be so extended where the situs rule is abhorrent to the public policy of our state, Id., or where it would operate in opposition to settled statutory policy or override express statutory provisions of this state. Bank v. Ramsey, 252 N.C. 339, 113 S.E. 2d 723 (1960) and cases cited therein. Where we apply the law of sister states to a cause in our courts, North Carolina law is applied to procedural matters. Young v. Railroad, 266 N.C. 458, 146 S.E. 2d 441 (1966).\nWe hold that the court below erred in denying Stone & Webster\u2019s motion to strike defendants\u2019 last defense and in applying the North Carolina rule with regard to the rights of defendants vis-a-vis Stone & Webster\u2019s subrogation rights. Since the situs of decedent\u2019s injury was Virginia, Virginia substantive law will be applied to the issue before us. Henry v. Henry, supra. The rule with regard to whether a negligent third party tort-feasor may defeat an employer\u2019s right to recoup from it damages paid under a worker\u2019s compensation award is a rule of substantive, not procedural, law. Cf. Charnock v. Taylor, 223 N.C. 360, 26 S.E. 2d 911, 148 A.L.R. 1126 (1943) (situs state\u2019s rule not allowing contribution between joint tort-feasors is a substantive rule). Our public policy is not affected by applying the Virginia rule to the present case; the award paid out was paid from a fund collected from Virginia employers. The rights asserted are rights which arise under worker\u2019s compensation law and the only worker\u2019s compensation law involved in this case is that of Virginia. Decedent\u2019s employment was in Virginia and this state has no interest in how its sister states administer their laws intended to compensate their employees for injuries sustained in employment in those states. The only party to this lawsuit with sufficient North Carolina connections to create a policy-based preference for one of the two conflicting rules of law is the plaintiff, and her right to recover will not be affected by the choice as to which rule we apply. The North Carolina Worker\u2019s Compensation Act has no application to the circumstances that exist in the present case: the injury did not occur in this state, the employer\u2019s principal place of business is not in this state and the record does not show that the contract of employment was made in this state. See G.S. 97-36.\nThe Virginia rule applies: it gives defendants no right to defeat Stone & Webster\u2019s right to recoup monies paid or payable from defendants should plaintiff recover from them in this action. Since the trial court erred in denying Stone & Webster\u2019s motion to strike defendants\u2019 \u201cLast Defense,\u201d the order of the trial court is\nReversed.\nJudges VAUGHN and WHICHARD concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Haywood, Denny & Miller, by George W. Miller, Jr. and Michael W. Patrick, for plaintiff.", "Battle, Winslow, Scott & Wiley, P.A., by Marshall A. Gallop, Jr., for all defendant-appellees.", "Young, Moore, Henderson & Alvis, P.A., by B. T. Henderson, II and William F. Lipscomb, for third party defendant-appellant, Stone & Webster Engineering Corporation." ], "corrections": "", "head_matter": "MARIE R. LEONARD, Administratrix of the Estate of Samuel L. Leonard, Deceased v. JOHNS-MANVILLE SALES CORPORATION, A Delaware Corporation; UNARCO INDUSTRIES, INC., An Illinois Corporation; GAF CORPORATION, A Delaware Corporation; ARMSTRONG CORK COMPANY, A Pennsylvania Corporation; RAYBESTOS-MANHATTAN, INC., A Connecticut Corporation; OWENS-CORNING FIBERGLASS CORPORATION, A Delaware Corporation; PITTSBURGH CORNING CORPORATION, A Pennsylvania Corporation; THE CELOTEX CORPORATION, A Delaware Corporation; NICOLET INDUSTRIES, A Pennsylvania Corporation; FORTY-EIGHT INSULATION, INC., An Illinois Corporation; EAGLE-PICHER INDUSTRIES, INC., An Ohio Corporation; STANDARD ASBESTOS & INSULATION CO., A Missouri Corporation; OWENS-ILLINOIS, INC., An Ohio Corporation; H. K. PORTER, A Pennsylvania Corporation; NATIONAL GYPSUM CO., A Delaware Corporation; FIBREBOARD CORPORATION, A Delaware Corporation; GARLOCK, INC., A Foreign Corporation; KEENE CORPORATION, A New Jersey Corporation; NORTH AMERICAN ASBESTOS CORPORATION, A Foreign Corporation; CAREY CANADIAN MINES, LTD., A Foreign Corporation; LAKE ASBESTOS OF QUEBEC, LTD., A Foreign Corporation; AMATEX CORPORATION, A Pennsylvania Corporation; SOUTHERN ASBESTOS COMPANY\nNo. 8214SC22\n(Filed 16 November 1982)\nCourts \u00a7 21.5; Master and Servant \u00a7 89.3\u2014 action against third party \u2014 subrogation rights of employer \u2014 application of Virginia law\nThe law of Virginia will be applied with regard to whether a third party may defeat a negligent employer\u2019s subrogation rights when the injured employee sues the third party at common law after recovering workers\u2019 compensation benefits from his employer where the employment was in Virginia and the injury occurred in that state. G.S. 9740.2(e).\nCERTIORARI to review Godwin, Judge. Order entered 3 August 1981 in DURHAM County Superior Court. Heard in the Court of Appeals 21 October 1982.\nPlaintiff, Marie R. Leonard, widow and administratrix of the estate of Samuel L. Leonard, decedent, brought this action to recover actual and punitive damages allegedly resulting from defendants\u2019 acts. Defendants are companies involved in the manufacturing and distribution of asbestos products. Plaintiff\u2019s decedent was exposed to asbestos products in the course of his employment and suffered asbestosis, which eventually caused his death in 1978. Prior to his death, plaintiff\u2019s decedent filed a claim against his employer, Stone & Webster Engineering Corp., a user of asbestos products, for worker\u2019s compensation, with the Virginia Industrial Commission. After decedent\u2019s death, the Virginia Industrial Commission made an award to plaintiff, as a dependent surviving spouse of the claimant, in the amount of $175.00 per week for 500 weeks plus all medical expenses and the statutory burial expenses. The total worker\u2019s compensation award amounted to approximately $100,000.00. Defendants in the present action sought to amend their answers to allege as a \u201cLast Defense\u201d that the negligence of Stone & Webster was a contributing cause of decedent\u2019s injuries. This amendment was allowed and Stone & Webster was thus made a party to the lawsuit because, under North Carolina law, an allegedly negligent third party is allowed to show the independent negligence of the plaintiff\u2019s employer from whom the plaintiff has recovered in a worker\u2019s compensation action in order to defeat such employer\u2019s right to recoup from the third party sums paid to the plaintiff under the worker\u2019s compensation award. Stone & Webster moved to strike defendants\u2019 \u201cLast Defense,\u201d asserting that Virginia law controls defendants\u2019 right to assert such a defense and that under Virginia law a third party is not able to prove the independent negligence of the employer in order to defeat the employer\u2019s right of subrogation. Stone & Webster\u2019s motion to strike was denied and this Court allowed review by Writ of Certiorari.\nHaywood, Denny & Miller, by George W. Miller, Jr. and Michael W. Patrick, for plaintiff.\nBattle, Winslow, Scott & Wiley, P.A., by Marshall A. Gallop, Jr., for all defendant-appellees.\nYoung, Moore, Henderson & Alvis, P.A., by B. T. Henderson, II and William F. Lipscomb, for third party defendant-appellant, Stone & Webster Engineering Corporation." }, "file_name": "0454-01", "first_page_order": 486, "last_page_order": 490 }