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Com. v. Johnson Insulation7/30/1997
Asbestos. Uniform Commercial Code, Warranty. Sale, Warranty. Warranty. Contract, Warranty. Actionable Tort. Consumer Protection Act, Availability of remedy, Attorney's fees, Damages. Limitations, Statute of. Interest. Damages, Repairs, Remittitur. Practice, Civil, New trial.
GREANEY, J. Asbestos was widely used as an insulator and fire retardant until the 1970's, when it became evident that the material posed health hazards (including lung diseases and cancer) even at low levels of exposure. As a result, the Commonwealth undertook a program to identify and remove asbestos containing materials that had been installed in its buildings over several decades. To recoup the costs of these remediation activities, the Commonwealth brought an action against numerous companies that had manufactured, supplied, and installed the asbestos-containing products, seeking damages for the costs of removing these materials on the theory that the companies had breached an implied warranty of merchantability. The Commonwealth also sought multiple damages and attorney's fees for violations of the consumer protection statute, G. L. c. 93A. The trial Judge ordered the action to be split into three phases, according to the type of asbestos product installed; the case before us involved thermal insulation products, such as those applied to pipes and boilers. All defendants in this phase settled before trial, with two exceptions: Owens-Corning Fiberglas Corporation and Johnson Insulation (Johnson). At trial, the jury found that the defendants had furnished products that were unfit for their intended use, and assessed damages for twenty-one of the twenty-two buildings at issue. After judgment was entered against both defendants for damages and interest, Johnson moved, pursuant to Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974), for judgment notwithstanding the verdict (judgment n.o.v.) or, in the alternative, pursuant to Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974), for remittitur or a new trial on the damages awarded for two of the sites. Johnson also moved to amend the judgment to reduce the amount of prejudgment interest. The Judge allowed the motion for judgment n.o.v., and dismissed entirely the complaint against Johnson. He denied Johnson's other motions as moot, and also denied the Commonwealth's subsequent motion to set a date for trying its claim that Johnson had violated G. L. c. 93A. Owens also filed motions for judgment n.o.v. or a new trial, but subsequently settled with the Commonwealth. Therefore, Johnson is the only remaining defendant in this action. The Commonwealth appealed from the Judge's grant of judgment n.o.v. to Johnson and his dismissal of the Commonwealth's G. L. c. 93A claim, and we granted the Commonwealth's application for direct appellate review. We now reverse the judgment n.o.v., and reinstate the jury's verdict. We conclude that the Commonwealth's G. L. c. 93A claim was properly dismissed. We also conclude that prejudgment interest was properly calculated. We remand for a reconsideration of Johnson's motion for remittitur or a new trial.
We address in turn each of the principal issues on appeal, including (1) Johnson's liability to the Commonwealth for the cost of asbestos removal, (2) the Commonwealth's contention that Johnson is liable as well for having engaged in practices that violated G. L. c. 93A, (3) the proper basis for computing prejudgment interest on the award of damages, and (4) Johnson's objection to the amount of damages imposed on it for asbestos removal at two sites.
1. Johnson's liability under an implied warranty of merchantability. The Commonwealth argued at trial that Johnson was liable for breach of the implied warranty of merchantability, as defined by
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