DEWALT v. DOW CHEMICAL CO.


237 N.J. Super. 54 (1989)

566 A.2d 1168

KAZY DEWALT AND PEARLINE DEWALT, HIS WIFE, PLAINTIFFS-RESPONDENTS, v. DOW CHEMICAL COMPANY, DEFENDANT-APPELLANT, AND CHEVRON OIL REFINERY; CELOTEX CORP., INDIVIDUALLY AND AS SUCCESSOR TO PHILIP CAREY COMPANY, PHILIP CAREY MANUFACTURING COMPANY, SMITH & KANZLER, QUEBEC ASBESTOS MINES, BRIGG MANUFACTURING COMPANY AND PANACON, INC.; ROBERT A. KEASBEY COMPANY; PORTER HAYDEN CO. A/K/A H.W. PORTER CO. AND REID HAYDEN; STATE INSULATION CORP.; MADSEN & HOWELL; OWENS CORNING FIBERGLAS; EAGLE PICHER INDUSTRIES, INC.; JOHN DOE CORPORATIONS (A FICTITIOUS NAME REPRESENTING ONE OR MORE CORPORATIONS, COMPANIES, PARTNERSHIPS OR OTHER BUSINESS ENTITIES OR ORGANIZATIONS, WHOSE IDENTITIES ARE PRESENTLY UNKNOWN, ENGAGED IN THE MINING, MILLING, MANUFACTURE, SUPPLY, DISTRIBUTION, INSTALLATION AND/OR REMOVAL OF ASBESTOS OR ASBESTOS CONTAINING PRODUCTS TO WHICH PLAINTIFF WAS EXPOSED); JUDY DOE CORPORATIONS (A FICTITIOUS NAME REPRESENTING ONE OR MORE LEGAL ENTITIES WHO STAND IN THE SHOES OF THE JOHN DOE DEFENDANTS EITHER AS SUCCESSOR IN INTEREST, ALTER EGO OR BY OTHER EQUITABLE DOCTRINE WHICH MAKES THEM RESPONSIBLE FOR THE JOHN DOE LIABILITY); RICHARD ROE CORPORATIONS (A FICTITIOUS NAME REPRESENTING UNSAFE WORKSITES WHICH ARE PRESENTLY UNKNOWN AT WHICH THE PLAINTIFF WAS EMPLOYED), DEFENDANTS.

Superior Court of New Jersey, Appellate Division.

Decided December 8, 1989.


Attorney(s) appearing for the Case

Richard J. Shackleton argued the cause for appellant (Shackleton, Hazeltine and Bishop, attorneys, Richard J. Shackleton, on the brief).

Frances A. Tomes argued the cause for respondents (Garruto, Galex and Cantor, attorneys, Frances A. Tomes, on the brief).

Before Judges GAULKIN, DREIER and SCALERA.


The opinion of the court was delivered by SCALERA, J.A.D.

This case requires us to expound again on the principles governing a successful litigant's attempt to recoup counsel fees pursuant to R. 4:22 and R. 4:23-3.

Plaintiffs, Kazy DeWalt and his wife Pearline DeWalt, instituted suit on May 12, 1987 to recover damages against a series of defendants, contending that Kazy DeWalt had been injured as a result of exposure to asbestos from 1973 through...

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