855 F.2d 1571 | Fed. Cir. | 1988
Lead Opinion
This is an appeal from a decision on the merits by the United States Claims Court entered August 6, 1987, and reported as Johns-Manville Corp. v. United States, 13 Cl.Ct. 72 (1987). The Claims Court held Johns-Manville failed to establish an entitlement to recovery on any of the theories of liability tried. We vacate and do not reach the merits.
BACKGROUND
During World War II (WWII) Johns-Manville sold asbestos-containing products to the United States for use in naval and maritime transport ships. Due to the heat resistant and fire retardant properties of asbestos it was used in insulating ships’ boilers, steam pipes, pumps, and other equipment. Asbestos is now known to cause at least three major diseases: (1) asbestosis (inflammation of the lungs), (2) pulmonary and bronchogenic carcinoma (lung cancer), and (3) mesothelioma (cancer of the lining of the lung or abdominal cavi
Johns-Manville brought suit against the government for indemnification of settlements and judgments resulting from 57 third-party personal injury claims or injury claims or suits which were closed prior to Johns-Manville’s filing of this suit. Johns-Manville also sought damages for 327 third-party claims or suits which were not closed when Johns-Manville filed suit. The damages requested in the complaint for the closed claims were $768,361.09 for settlements and judgments and $185,741.55 for attorneys’ fees, costs, and expenses in defending the claims. The damages sought for unclosed claims were unspecified.
The case in the instant appeal is a test case based on four test shipyards and 15 test claimants (shipyard workers), five of whom were exposed to asbestos in shipyards after the war. Johns-Manville sought recovery on four separate legal theories: (1) the United States breached an implied warranty of specifications that the design of the asbestos products was safe; (2) the United States breached a duty to disclose superior knowledge of the shipyard working conditions; (3) the third-party damages were foreseeable; and (4) the trial court should apportion losses between the parties under the doctrine of mutual mistake. Those issues were tried for six weeks and reported in an exhaustive published opinion of 93 pages. The trial court found for the government and dismissed the complaint. The government’s 33 — billion — dollar counterclaim was also dismissed.
Johns-Manville also sought damages for increased insurance and business costs and for loss of business and business reputation. These claims were not tried.
OPINION
A threshold question in reviewing the trial court’s decision is whether the trial court properly had jurisdiction over the claims in issue. In Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed.Cir.1988), decided concurrently with the instant case, this court reviewed on interlocutory appeal an order of the Claims Court dismissing its case No. 465-83C.
CONCLUSION
In accordance with our decision in Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed.Cir.1988), the United States Claims Court had no jurisdiction to decide the claims brought by Johns-Manville against the United States. The trial court’s decision is therefore vacated and this appeal on the merits is mooted.
VACATED.
In addition to dismissing No. 465-83C, the Claims Court order also dismissed case Nos. 688-83C and 1-84C. Only the first case, however, was tried and is before us in the instant appeal. When granting Johns-Manville’s petition for permission to appeal the trial court’s April 6, 1988 order of dismissal, the court granted its request to stay that order pending resolution of the interlocutory appeal and to stay the briefing schedule of the interlocutory appeal in this court pending completion of the trial in the Claims Court. The purpose of this was to avoid requiring Johns-Manville to simultaneously try the Claims Court case and to brief the jurisdictional issue in the interlocutory appeal. That would have resulted since the order of dismissal would only take effect if the prior-filed cases in issue were not dismissed within 60 days and the trial was scheduled to begin within that time. See Keene Corp. v. United States, 12 Cl.Ct. 197, 212, 216 (1987), aff’d sub nom., Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed.Cir.1988).
Dissenting Opinion
dissenting.
I dissent for the reasons stated in my dissent filed in 855 F.2d 1556, 1568.