Fault, Apportionment and Settlement Credits in Asbestos Cases

Decisions in our library in which the court ruled on fault allocation: 480 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

Texas

• Owens-Corning Fiberglas Corp. v. Schmidt (9th District, 1996). A defendant seeking a settlement credit must prove the settled claim compensated the same damages. A defendant that timely elects a dollar-for-dollar credit under Chapter 33 cannot later switch to a pro rata credit, and prejudgment interest must be calculated after settlement credits.
• Boyett v. Keene Corp. (1993). Under general maritime law, a non-settling defendant gets a settlement credit only if it proves the settlement and judgment cover common damages and that the settling party is a joint tortfeasor. A shipowner that is not negligent is not a joint tortfeasor with a negligent manufacturer, and a settling party cannot get indemnity for payments that did not discharge the manufacturer's liability.
• Fibreboard Corp. v. Pool (6th District, 1991). In a Texas strict-liability failure-to-warn asbestos case, manufacturers are held to an expert's knowledge, and industry documents such as the Sumner Simpson papers may show what was known about asbestos hazards. Future medical expenses need proof of reasonable probability, and punitive damages need evidence of gross negligence or conscious indifference.
• Celotex Corp. v. Tate (13th District, 1990). Where several suppliers' raw asbestos combined to cause a worker's mesothelioma, a defendant shown to have supplied some of it cannot escape liability because other suppliers' asbestos also contributed, and the defendant bears the burden of apportionment. A successor-liability defense is an affirmative defense that must be pleaded, and Texas punitive awards that combine several purposes cannot be reviewed for cumulative-award due process claims absent separate findings.
• Cimino v. Raymark Industries, Inc. (1990). In an asbestos case under Texas law, prejudgment interest runs from six months after the plaintiff's last asbestos exposure. Damages for a large class may be set by averaging jury verdicts from a statistically representative random sample without violating due process.
• Cimino v. Raymark Industries, Inc. (1990). A supplier of raw asbestos may not rely on intermediaries to warn users unless that reliance is reasonable, but plaintiffs must still prove exposure to that supplier's product to recover compensatory damages. In an asbestos personal injury case, prejudgment interest accrues six months after the last exposure to asbestos.
• Hardy v. Johns-Manville Sales Corp. (1981). A federal court sitting in diversity predicted that Texas would adopt some form of Sindell market-share liability in asbestos cases, so market share discovery may lead to admissible evidence. The court also held that Borel precludes relitigating whether asbestos causes asbestosis and mesothelioma, and that the Borel duty-to-warn findings preclude warning and state-of-the-art evidence for insulation products.
• Migues v. Nicolet Industries, Inc. (1980). In a Texas-law diversity case involving an industry-wide asbestos tort among strictly liable producers, the non-settling defendant that went to trial receives a credit for the settlement amount rather than pro rata apportionment among settling defendants. An excessive verdict requires remittitur or a new trial.

Utah

• Riggs v. Asbestos Corp. Ltd. (2013). A tort claim for asbestos disease accrues when the disease is diagnosed, not at exposure, so the law in force at diagnosis governs. A raw-material supplier can obtain JNOV under the bulk supplier rule only if the evidence shows as a matter of law that it met its duty to warn.

Virginia

• Goodrich v. John Crane, Inc. (2018). A manufacturer cannot offer evidence of the Navy's knowledge or negligence as a superseding cause, because the Navy's failure to protect workers from asbestos was foreseeable. Evidence of the Navy's knowledge also is not state-of-the-art evidence, because it shows the hazards were known to experts and so supports a duty to warn.
• Hopeman Brothers, Inc. v. Continental Cas. Co. (2018). Under New York law, as stated in Viking Pump, non-cumulation clauses like these call for all-sums allocation and vertical exhaustion for long-tail claims. Such clauses reduce limits only to the extent the insured has already recovered for the same loss from prior insurance in the same coverage layer.
• John Crane, Inc. v. Hardick (2012). Nonpecuniary damages are not recoverable in a wrongful death action for a seaman, whether under DOHSA, the Jones Act, or general maritime law, and a Navy sailor who contributed to the function of vessels and had a substantial connection to them is a seaman. Arguments not briefed under Rule 5:27 are waived.
• Garlock Sealing Technologies, LLC v. Little (2005). Federal maritime tort law governs an asbestos claim based on exposure during repair and construction of vessels in navigable waters, and a party that induced the jury's apportionment among non-parties cannot then complain about how it was applied.
• Roller v. Basic Const. Co. (1989). In an occupational disease case, the employer's and employee's rights under the Workers' Compensation Act become fixed when the diagnosis is first communicated to the employee, so the statute in effect on that date governs. A repealed five-year limit from last injurious exposure therefore created no vested right of repose and the 1983 amendment applied without unconstitutional retroactivity.

Washington

• Wright v. 3M Company (1st Division, 2021). An owner does not retain control over an independent contractor's work merely by requiring compliance with safety laws and general safety rules, but an erroneous retained-control instruction did not require reversal because the verdict also rested on premises liability. RCW 4.22.060 requires settling parties to provide a copy of the proposed settlement agreement, so a reasonableness ruling made without the full agreements is an abuse of discretion.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). A plaintiff's inability to prove exposure or causation against one defendant does not eliminate other defendants' affirmative defenses of alternative asbestos exposure, and the plaintiff did not show there was no genuine dispute of material fact on them.
• Estate OF Brandes v. Brand Insulations, Inc. (1st Division, 2017). A contractor that installed asbestos insulation and created dust without labeling or controls owed a duty of care to the spouse of a nearby worker who was exposed through laundering his clothes. A denial of summary judgment on disputed material facts cannot be appealed after a trial on the merits.
• Estenson v. Caterpillar Inc. (1st Division, 2015). An asbestos plaintiff may prove exposure to a defendant's product by direct or circumstantial evidence and need not show inhalation of airborne fibers from that product. Causation may be shown under the substantial factor test, and a large noneconomic award is not shown to be the product of passion or prejudice by its size alone when substantial evidence supports it.
• Weyerhaeuser Company v. Fireman's Fund Insurance Company (2008). The rule from Weyerhaeuser II, which required coverage for damage before the insured's connection to a site, is not extended beyond hazardous waste cleanup. Weyerhaeuser also did not show it was actually held jointly and severally liable for exposures before it made the products.
• Mavroudis v. Pittsburgh-Corning Corp. (1st Division, 1997). In multi-supplier asbestos cases where the expert says all of the plaintiff's exposure probably played a role and the actual cause cannot be identified, a substantial-factor causation instruction is proper instead of but-for. A claim arises under the Washington Product Liability Act when the plaintiff is exposed to asbestos, not when the disease is discovered.
• Brewer v. Fibreboard Corp. (1995). Under RCW 4.22.060, a settlement found reasonable can be used to set the offset against a judgment, but where a structured settlement with a bankrupt-company trust is unlikely ever to be paid in full, the offset is the amount actually received. A failure to give notice of the settlement was cured when the court held a reasonableness hearing on the defendants' motion before final judgment.
• Krivanek v. Fibreboard Corp. (1st Division, 1993). The 1981 Washington product liability act does not apply where substantially all injury-producing asbestos exposure occurred before its adoption, so pre-act instructions without state-of-the-art evidence were proper. A jury award outside the range of the uncontroverted evidence of economic loss is an abuse of discretion to uphold.
• Sofie v. Fibreboard Corp. (1989). A statutory limit on noneconomic damages that reduces a jury's damages finding violates article 1, section 21 of the Washington Constitution, because determining damages is part of the jury's protected fact-finding role. The asbestos case also fell within the hazardous-substances exception to the limit on joint and several liability.

West Virginia

• Amick v. Ohio Power Company (2013). Discovery relevance is broader than admissibility, and the party resisting discovery must substantiate its objections. Confidential settlement agreements are not privileged, and basic information about who settled is discoverable, especially where the agreements permit disclosure by court order.
• Adams v. Consolidated Rail Corp. (2003). Under FELA, a railroad employee's smoking can be raised as contributory or comparative negligence that reduces damages, and a court may exclude smoking evidence where the disease is mesothelioma, which smoking does not bear on.
• In re Celotex Corp. (1997). A contribution action against a debtor's contractual indemnitee is "related to" the bankruptcy case under the Pacor test, giving federal subject matter jurisdiction. Stream-of-commerce allegations without conduct purposefully directed at the forum cannot support personal jurisdiction over a successor, and a forfeited error is corrected on civil appeal only if the Olano plain-error requirements are met.

Wisconsin

• Lorbiecki v. Pabst Brewing Co. (2024). Under Wisconsin's safe place statute, a property owner's duty is non-delegable, so a contractor's negligence is imputed to the owner. The punitive damages cap in Wis. Stat. § 895.043(6) is twice the plaintiff's total recoverable compensatory damages from all liable parties after statutory caps, not twice the defendant's apportioned share.
• Lemberger v. Honeywell International, Inc. (1st District, 2013). A trial court may not change jury answers that are supported by any credible evidence, even if it thinks the jury misread the verdict form or instructions. Its options in that situation are to send the jury back to reconsider or to order a new trial.
• Anderson v. Combustion Engineering, Inc. (2002). A jury verdict stands if any credible evidence supports it, and the jury may draw reasonable inferences from expert and lay testimony about exposure without expert proof tracing specific fibers to one defendant. A jury's apportionment of fault is not disturbed unless the percentages are grossly disproportionate or the proof so lacking that the verdict is speculation.
• International Paper Co. v. Labour & Indus. Rev. Com'n (2001). Under the statutes in effect in 1983, the twelve-year limit for a dependent's death benefit claim runs from the worker's death, not the injury. The earlier Kohler and Weissgerber decisions no longer control because the statute they relied on was amended.