Graffagnino v. Fibreboard Corp. (1985)

Our plain-English summary of Graffagnino v. Fibreboard Corp. (U.S. Court of Appeals, Fifth Circuit, November 25, 1985).

Steve Graffagnino worked as an insulator at Texaco's Port Arthur, Texas, refinery for about forty years and handled asbestos products made and distributed by the defendants. In 1981 he and his wife sued over his asbestos exposure and settled for $175,000, signing a broad release that also assigned any remaining claims to the released parties. At that time asbestosis was the only asbestos disease he had shown symptoms of. In 1983 he was diagnosed with mesothelioma and died within a month. His wife then sued several defendants, some of whom had been released. The district court dismissed all defendants for failure to state a claim. The Fifth Circuit affirmed. Relying on its earlier decision in Gideon, it held that Texas law allows only one cause of action for all injuries from asbestos exposure, so the release covered the later mesothelioma. It also held the assignment valid under Texas law, which barred claims against defendants who were not parties to the release. The court found the release unambiguous and saw no alleged facts showing mistake or unconscionability.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. Court of Appeals, Fifth Circuit
• Decided: November 25, 1985
• Citation: 776 F.2d 1307
• Docket: No. 85-2146 Summary Calendar
• Stage: Appeal from motion to dismiss

Outcome. The Fifth Circuit affirmed the dismissal with prejudice of all defendants, holding that the widow's wrongful death and survival claims were barred by the 1981 release for released defendants and by the release's assignment for unreleased defendants.

What the court held. Under Texas law, asbestos exposure gives rise to a single cause of action covering all resulting diseases, so a valid release of that claim bars a later action for a disease diagnosed afterward, and a release's assignment of remaining claims is valid and bars suit against unreleased parties.

Issues decided: Wrongful Death and Survival, Settlements and Releases.

The people and their exposure

• Steve A. Graffangnino: asbestosis, mesothelioma; died

Who	Work	Where	When	Products
Steve A. Graffangnino	insulator (refineries and petrochemical plants)	Texaco, Inc.'s Port Arthur refinery, Port Arthur, Texas	about forty years	pipe and block insulation

The defendants

• Fibreboard Corporation (manufacturer) · its asbestos trust
• Pittsburgh Corning Corp. (manufacturer) · its asbestos trust
• Raymark Industries, Inc. (manufacturer)
• GAF Corp. (manufacturer) · its asbestos trust
• Eagle-Picher Industries, Inc. (manufacturer) · its asbestos trust
• Celotex Corp. (manufacturer) · its asbestos trust
• Owens-Illinois, Inc. (manufacturer) · its asbestos trust
• Keene Corp. (manufacturer)
• Nicolet, Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Gideon v. Johns-Manville Sales Corp. (U.S. Court of Appeals, Fifth Circuit, 1985). The Fifth Circuit affirmed the jury verdict for plaintiff Gideon against five asbestos manufacturers, reversed it and entered judgment for defendants Raymark and Standard Insulations, and remanded for the damages to be recalculated.

Later decisions citing this one

5 later decisions in our library cite this one:

• Pustejovsky v. Rapid-American Corp. (Texas Supreme Court, 2000). The Texas Supreme Court reversed the court of appeals' affirmance of summary judgment for Rapid-American on limitations grounds and remanded to the trial court, so Pustejovsky's mesothelioma suit may proceed.
• Pustejovsky v. Pittsburgh Corning Corp. (Texas Court of Appeals, 4th District, 1998). The court affirmed summary judgment for Owens-Corning Fiberglas, Pittsburgh Corning and Rapid-American, holding the widow's mesothelioma claim was barred by limitations because it accrued in 1982 with the asbestosis diagnosis.
• Pecorino v. Raymark Industries, Inc. (Texas Court of Appeals, 9th District, 1988). The court of appeals affirmed the summary judgment for Raymark Industries and the other asbestos product defendants, holding Mertice Pecorino's mesothelioma claim barred by limitations, and said the 1981 release and assignment would also have barred it.
• Kozak v. Guard-Line, Inc. (U.S. District Court, Northern District of Texas, 2008). The court granted plaintiffs' motion to remand, holding that removing defendant UOP failed to show Texas-citizen defendant Guard-Line was improperly joined, and sent the case back to the 116th Judicial District Court of Dallas County, Texas.
• Matter of Celotex Corp. (U.S. Bankruptcy Court, Middle District of Florida, 1994). The bankruptcy court granted the debtors Celotex and Carey Canada partial summary judgment, holding the policy term "asbestosis" and the phrase "asbestosis and related diseases arising out of asbestos products" unambiguous, and denied the insurer defendants' cross-motion.

Amounts in the opinion

• $175,000.00 (settlement)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

776 F.2d 1307 (1985)

Steve GRAFFAGNINO, et ux., Plaintiff-Appellant,

v.

FIBREBOARD CORPORATION, etal., Defendants-Appellees.

No. 85-2146 Summary Calendar.

November 25, 1985.

United States Court of Appeals, Fifth Circuit.

[*1308] Walter Umphrey, Jeff Branick and Greg Thompson, Port Arthur, Tex., for plaintiff-appellant.

George A. Weller, Edward H. Green and R. Lyn Stevens, Beaumont, Tex., for Fibreboard Corp.

Gordon R. Pate, Beaumont, Tex., for Pittsburgh Corning Corp.

Elizabeth M. Thompson and John S. Serpe, Houston, Tex., for Raymoark Ind., Inc.

John Tucker, Beaumont, Tex., for GAF Corp.

Andrew T. McKinney III, Houston, Tex., for Eagle-Picher Ind., Inc.

Gail C. Jenkins, Beaumont, Tex., for Celotex Corp.

Richard L. Josephson and Arthur Stamm, Houston, Tex., and Sandra F. Clark, Beaumont, Tex., for Owens-Illinois, Inc. O.J. Weber, Beaumont, Tex., for Keene Corp.

James H. Powers, Houston, Tex., for Nicolet, Inc.

Before CLARK, Chief Judge, and WILLIAMS and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Under Texas law, exposure to asbestos can give rise to only a single cause of action for all injuries that are caused by that exposure, whether or not all the injuries have become manifest at the time the cause of action accrues. When a plaintiff and his wife have executed a valid release of an asbestos-related claim and the plaintiff dies of an asbestos-caused disease that was diagnosed after the execution of the release, the wife cannot maintain a wrongful death or survival action against the released parties. When the release purports to assign to the released parties any remaining claims, the wife cannot maintain an action against other, unreleased, parties.

I

The facts, construed most favorably to the plaintiff, show that her husband, Steve A. Graffangnino, worked as an insulator at Texaco, Inc.'s Port Arthur, Texas, refinery for about forty years. In the course of his work, he handled asbestos products manufactured and distributed by defendants in this case.

In early 1981, Graffangnino and his wife filed suit for injuries caused by his exposure to asbestos insulating materials. That case was settled for $175,000.00. The plaintiffs, joined by their attorney, signed a detailed and comprehensive release of their claims; this release also purported to assign to the released parties any remaining claims. On March 10, 1982, the court issued an agreed take-nothing judgment. At the time that case was settled, asbestosis was the only asbestos-caused disease of which the decedent had shown symptoms.

In 1983, the decedent was found to be suffering from mesothelioma, from which he died within a month of the diagnosis. Like asbestosis, mesothelioma is a lung disease caused by exposure to airborne asbestos. Two days after his death, his wife filed this diversity action against several defendants, some of which had been parties to the earlier release.

Pursuant to Fed.R.Civ.P. 12(b)(6), the district court dismissed all defendants for plaintiff's failure to state a claim upon which relief can be granted. The court found that the 1981 release, which purported to cover "any and all claims which [Graffangnino and his wife] may have or may hereafter have" for injuries caused by "working with and exposure to various insulating materials and other products, some of which contained asbestos, manufactured, sold, or distributed by Released Parties,"[1] unambiguously barred an action [*1309] based on the mesothelioma that developed after the execution of the release. The court also found that the assignment contained in the release[2] was valid and that an action against defendants that were not party to the 1981 release was therefore barred.

Plaintiff appeals to this court from the district court's dismissals, with prejudice, of all defendants. II

The district court's decision was based solely on the terms of the 1981 release. Since that decision, we have had occasion to hold, in another Texas diversity case, that a plaintiff who has been exposed to asbestos may not split his cause of action to correspond to the various diseases that may be produced by that exposure.

[O]nce injury results there is but a single tort and not a series of separate torts, one for each resultant harm. The cause of action thus created is for all the damage caused by the single legal wrong, and a plaintiff may not split this cause of action by seeking damages for some of his injuries in one suit and for later-developing injuries in another.

....

[The plaintiff's] injury is ... the inhalation of fibers and the invasion of his body by those fibers, thus causing him physical damage.

Under Texas law, therefore, [the plaintiff] has but one cause of action for all the damages caused by the defendants' legal wrong; the diseases that have developed and will in probability develop are included within this cause of action, for they are but part of the sequence of harms resulting from the alleged breach of legal duty. [He] could not split his cause of action and recover damages for asbestosis, then later sue for damages caused by such other pulmonary disease as might develop, then still later sue for cancer should cancer appear.

Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1136-37 (5th Cir.1985) (footnotes omitted). Because only one cause of action for exposure to asbestos fibers existed and because the 1981 release covered that cause of action, the district court was correct to dismiss the present action as to those parties that were released in 1981.[3]

III

Plaintiff also argues that the 1981 release is void insofar as it purports to assign any wrongful death claim to the released parties. The plaintiff contends that such an assignment is "contrary to the public policy of the State of Texas," but she cites not a single apposite case or statute. Such an assignment is valid under Texas law, Tex.Prop.Code Ann. § 12.014 (Vernon 1984), and the district court in this case properly dismissed those defendants that were not parties to the 1981 release. Duke v. Brookshire Grocery Co., 568 S.W.2d 470, 472-73 (Tex.Civ.App.1978).

AFFIRMED.

[1] The release also contained several other recitals of an intent that the release be as broad as possible. [2] "If any other claims exist, whether released herein or not, whether foreseeable or unforeseeable, the undersigned hereby assign those claims in full to the released parties."

[3] The plaintiff urges us to rescind the 1981 release, which was executed on the advice of an attorney in consideration of a substantial sum of money, on grounds of ambiguity, mistake, or public policy. The release, however, is not ambiguous, and plaintiff has failed to allege any facts suggesting either mistake or unconscionability.

Sources

• The opinion on Google Scholar