Owens-Illinois, Inc. v. Zenobia

ON MOTION FOR RECONSIDERATION ELDRIDGE, Judge. The defendant Anchor Packing Company has filed a Motion for Reconsideration, requesting that certain “attached documents be made part of the total record” in this case and that the Court reconsider in part its decision. See Owens-Illinois v. Zenobia, 325 Md. 420 , 601 A.2d 633 (1992). Specifically, Anchor asks this Court to review a portion of Part V of the opinion holding that Anchor was not entitled to indemnity or contribution from Raymark Industries, Inc., in the Zenobia case because Raymark had never been named as a defendant by the plaintiff Zenobia and had never been properly named as a third party defendant by Anchor.

Anchor requests that we change our decision regarding its cross-claim in the Zenobia case. ⁶⁶⁸ Anchor asserts that the plaintiff Zenobia in fact named Raymark in the original complaint but that the copy of the original complaint included in the record extract omitted one page, namely the page upon which Raymark was named as a defendant. The defendant Anchor has also attached as exhibits to its motion a stipulated cross-claim filed by all of the defendants against all other defendants and a cross-claim for indemnity filed by Anchor against all other “defendants” except Garlock, Inc. Neither the original complaint in the Zenobia case, nor the stipulation as to cross-claims, nor Anchor’s cross-claims for indemnity were included in the record on appeal transmitted to this Court pursuant to Maryland Rules 8-412 and 8-413. The original complaint, apparently with a page missing, and a portion of the cross-claim stipulation, were included in the record extract under Rule 8-501. These partial documents indicated that Raymark had never been a party in the Zenobia case.

Anchor’s proffered cross-claims for indemnity against “all defendants” was not included in the record extract. The plaintiff Zenobia has not opposed the request to correct the record in this case. Since the exhibits attached to Anchor’s Motion for Reconsideration indicate that the plaintiff Zenobia had named Raymark as a defendant and that Anchor had filed cross-claims for contribution and indemnity against all defendants, including Raymark, we shall pursuant to Rule 8-414 correct the record to include these papers, and we shall proceed on the basis that the cross-claims were filed against Raymark in the Zenobia case. 1 ⁶⁶⁹ Nevertheless, we shall not modify the judgment vacating the circuit court’s granting of the cross-claims against Raymark in the Zenobia case, and we shall deny Anchor’s Motion for Reconsideration. As in the Dickerson case, the evidence in the Zenobia case was insufficient to show that Raymark was a joint tortfeasor.

At the cross-claims trial the deposition of Theodore Grant, an Anchor employee, was entered into evidence. Grant was asked: “During the period from the early ’40’s to the late ’60’s what percentage of the asbestos containing products sold by Anchor Packing would you estimate were purchased by Anchor Packing from [Raymark]?” He responded: “I’d only be guessing. I’d say maybe fifty percent, but its only conjecture on my part.” Grant also testified that during this period warnings did not appear on Raymark’s products. At the trial of the Zenobia case, the plaintiff Zenobia testified that during the two year period that he worked at Maryland Shipbuilding and Dry-dock he was exposed to