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.

Georgia

• Georgia-Pacific, LLC v. Fields (2013). A party may rely on allegations and admissions in the opposing party's pleadings as evidence to contest summary judgment, even if later amended or withdrawn, and an appellate court cannot affirm on a ground such as causation that the movant never raised in its summary judgment motion.
• Union Carbide Corporation v. Fields (2012). A defendant cannot have fault allocated to a nonparty under OCGA § 51-12-33 unless it presents competent evidence that the nonparty's product actually contributed to the plaintiff's injury; inference, unverified allegations, or settled status alone are not enough. An employer owes no duty for take-home exposure, so it bears no allocable fault.
• John Crane, Inc. v. Jones (2004). Where several defendants' tortious acts may have combined to cause an injury, Georgia law does not require each defendant's conduct to be a "substantial" contributing factor to be a proximate cause; it is enough that the conduct was a contributing factor.

Hawaii

• Dias v. Fisher Controls Int'l (In re Hawaii State Asbestos Cases) (2017). Under HRS § 663-15.5 and Troyer v. Adams, a trial court has discretion to find a settlement in good faith under the totality of the circumstances. Where settlements are confidential, disclosing the settling parties and the aggregate amount can give non-settling defendants sufficient information.
• Nobriga v. Raybestos-Manhattan, Inc. (1984). Adherence to government specifications is not an absolute defense to strict liability where the product is inherently dangerous because of the specified material. Under HRS § 663-14, multiple separate releases must be treated collectively, so the verdict is reduced by the total consideration paid or the releasees' total liability share, whichever is greater.

Illinois

• Ramirez v. Avon Products, Inc. (1st District, 5th Division, 2024). A trial court's decision to sever and stay third-party contribution claims, made by weighing competing factors and managing its docket, is reviewed for abuse of discretion. There is only a policy preference, not a rule, for trying contribution claims together with the underlying action.
• Daniels v. ArvinMeritor, Inc. (1st District, 4th Division, 2019). A trial court may use the standard Illinois pattern proximate-cause instruction in an asbestos case, and need not give a 'substantial factor' instruction. A manufacturer that actually knew of the danger is not entitled to a 'state of the art' instruction, and settled defendants need not appear on the verdict form.
• John Crane, Inc. v. Admiral Insurance Company (1st District, 2nd Division, 2013). Under Zurich, coverage for asbestos personal injury claims is triggered by proof of exposure, sickness, or disease, and all triggered policies are jointly and severally liable for all sums up to their limits. Under horizontal exhaustion, the insured must exhaust the original primary limits before excess or umbrella insurers must pay, and an agreement amending those limits after the fact cannot lessen that requirement.
• John Crane, Inc. v. Admiral Insurance Company (1st District, 2nd Division, 2013). Under Zurich v. Raymark, coverage for asbestos personal injury claims is triggered by proof of exposure, sickness, or disease, and all triggered policies are jointly and severally liable rather than pro rata. Horizontal exhaustion requires the insured to exhaust all triggered primary policies at their original limits before excess coverage applies, and an insured and primary insurer cannot lessen those limits by retroactive amendment.
• Zickuhr v. Ericsson, Inc. (1st District, 6th Division, 2011). In an asbestos case a plaintiff shows causation by the frequency, regularity and proximity of exposure to the defendant's asbestos product, without proof of the exact quantity of fibers; the jury's credibility choices on product identification stand where evidence supports them.
• Burgess v. Abex Corp. (4th District, 1999). A defendant who understands the general objectives of a conspiracy to conceal asbestos hazards, accepts them, and agrees explicitly or implicitly to further them is liable as a coconspirator. Plaintiffs must prove the conspiracy by clear and convincing evidence, reviewed under the manifest weight standard, and the jury's finding here had sufficient support.
• Spain v. Owens Corning Fiberglass Corp. (4th District, 1999). Once a plaintiff shows frequency, regularity and proximity of exposure to the defendant's asbestos product, the defendant is presumed a proximate cause and may not introduce evidence of other asbestos exposures unless it files contribution actions against those other manufacturers. Under amended Rule 213, the treating physician exception to opinion disclosure no longer exists.
• McClure v. Owens Corning Fiberglas Corp. (4th District, 1998). Evidence of parallel conduct, if persuasive enough, can alone support a jury finding of civil conspiracy among asbestos manufacturers (the antitrust rule on parallel conduct does not apply). Once a conspiracy is shown by clear and convincing evidence, proximate cause need only be shown by a preponderance.
• Barry v. Owens-Corning Fiberglas Corp. (1st District, 1st Division, 1996). A jury damages award in a wrongful death and survival case will not be disturbed unless it results from passion or prejudice or falls outside the limits of reasonable compensation, and awards are not measured by comparison with other asbestos verdicts. A verdict form giving separate wrongful death amounts to each survivor was error under the Wrongful Death Act but was not prejudicial.
• Hartman v. Pittsburgh Corning Corp. (5th District, 1994). Circumstantial evidence of regular exposure to the defendant's asbestos product over several months, together with medical evidence, can support an inference that the product probably caused mesothelioma. Trial courts keep discretion over sanctions for late expert disclosure under Rule 220, and a settlement may be allocated to a spouse who signed the releases, so that part is not set off against the verdict.
• Keystone Steel and Wire Co. v. Costa (3rd District, 1994). A denial of summary judgment is merged into the trial and not reviewable where the defendant's own refusal to produce a witness led to a sanction judgment on liability. Section 2-1101 permits conditioning denial of a motion to quash on advance payment of expenses but does not authorize reimbursing expenses after production.
• State Farm Mut. Auto. Ins. Co. v. WR Grace & Co. (1993). The Illinois construction statute of repose protects a product manufacturer only if it substantially participated in construction activities or custom-made and installed its product for the project, and only for claims arising from those construction activities, not manufacturing-related negligence such as failure to warn.
• Betts v. Manville Personal Injury Trust (4th District, 1992). A new trial was required because of plaintiffs' counsel's prejudicial tactics, an undisclosed expert, speculative cancer-risk evidence, evidence from another plant not shown to be similar, and over-broad collateral estoppel against Grefco. A prior finding fixing when a plaintiff learned of her injury can bar a later suit on limitations grounds, and a plaintiff who gets no allocation of an earlier settlement bears the burden on the setoff.
• Owens Corning Fiberglas v. Ind. Comm'n (4th District, 1990). Under section 7 of the Workers' Occupational Diseases Act, a widow has an independent cause of action for death benefits even if her husband received disability benefits during his life. The date of death is the date of injury for determining the applicable statute and minimum rate, and an employer's reimbursement right under section 5(b) reaches only recoveries by the employee or his personal representative.
• Zurich Insurance Co. v. Raymark Industries, Inc. (1987). Under the policy language, an insurer must cover an asbestos claim if the claimant suffered bodily injury (at or shortly after exposure), sickness, or disease (when reasonably diagnosable) during the policy period. The duty to defend ends when policy limits are exhausted by payment of judgments or settlements.
• Zurich Ins. Co. v. Raymark Industries, Inc. (1st District, 1986). Under comprehensive general-liability policies, coverage for asbestos claims is triggered both by exposure (bodily injury) and by manifestation (disease), but not by the intervening period; each triggered insurer owes full indemnity and defense to the insured, and the duty to defend ends when policy limits are exhausted by payment of judgments or settlements.

Indiana

• Casper v. LE Isley & Sons, Inc. (2007). Under Ind. Code § 22-3-7-36(b), an employer is released from liability for compensation once the employee has settled with third parties and received no compensation from the employer, so dismissal is not premature even if further bankruptcy trust claims may be filed.
• Roberts v. ACandS, Inc. (2007). Under Ind. Code 22-3-7-36(b), an employer has no liability for occupational disease compensation once the employee or estate has been paid a third-party judgment or settlements, and applying that release to the Estate did not violate the Indiana privileges and immunities or open courts clauses.
• Psi Energy, Inc. v. Roberts (2004). A landowner may be liable under Restatement (Second) of Torts §§ 343 and 343A to an independent contractor's employee when the evidence lets a jury find the danger was not known or obvious to him and the landowner should have anticipated the harm, including where it saw workers going unprotected. A general verdict stands if the evidence supports any one theory of liability.
• Roberts v. ACandS, Inc. (2004). Under Ind. Code 22-3-7-36(b), an employer's liability for occupational disease compensation ends only when the employee's third-party action is fully concluded by settlement or a paid judgment, not when the employee settles with just one of several third-party defendants.

Iowa

• Kinseth v. Weil-McLain (2018). A new trial is warranted when counsel's closing argument, viewed as a whole, repeatedly and deliberately violates an in-limine order and likely changed the result. Punitive damages under Beeman do not require proof that the defendant's conduct differed from its peers if the defendant had specific knowledge of the hazard.
• Kinseth v. WEIL-McLAIN Company (2017). A trial court abuses its discretion by denying a mistrial when counsel persistently violates in limine rulings in closing argument, such as references to defense spending, corporate wealth, sending a message and other lawsuits, so that a different result was probable. Fault may be allocated only to released parties against whom the plaintiff has a viable claim, which excludes exposures barred by the statute of repose.
• Spaur v. Owens-Corning Fiberglas Corp. (1994). Asbestos plaintiffs may prove causation under a flexible substantial-factor test, with circumstantial evidence of exposure to the defendant's product, without proving how much that product contributed to the disease. Punitive damages in asbestos cases are not per se unconstitutional, and the defendant bears the burden of showing a due process violation.

Kansas

• Dickenson v. Brenntag North America, Inc. (2023). Settlement agreements with other defendants are relevant and discoverable when claims overlap, and confidentiality clauses do not bar discovery (a protective order is the remedy). Settlement communications are not compelled without a showing of relevance and proportionality beyond what the agreements provide.
• Menne v. Celotex Corp. (1986). Predicting Nebraska law under Erie, the court held that Nebraska would adopt alternative liability (Restatement (Second) of Torts § 433B), so once an asbestos plaintiff shows exposure to defendants' products and resulting injury, the burden shifts to each defendant to prove its product did not contribute, failing which the defendants are jointly and severally liable.
• Miller v. Johns-Manville Sales Corp. (1982). In a Kansas-law case, a federal court declined to apply nonmutual offensive collateral estoppel based on the Borel judgment, given the narrow reading of Borel by the Fifth Circuit, differences between Texas and Kansas law, and Kansas comparative fault, which meant the evidence would have to be presented anyway.

Kentucky

• Williams v. Schneider Electric USA, Inc. (2023). Duty turns on foreseeability, not on labels like bystander, and household members who regularly and repeatedly came into close contact with a worker's asbestos-contaminated clothes over an extended period are owed a duty where the take-home danger was foreseeable by the late 1960s. A brief, unrelated stint of employment does not make workers' compensation exclusivity bar the non-work-related claims.
• Papineau v. Brake Supply Company, Inc. (2022). Under Kentucky's comparative-fault statute, a jury may be asked to apportion fault to a party dismissed for lack of personal jurisdiction, because apportionment only limits the remaining defendants' liability and does not impose liability on the absent party.
• Papineau v. Brake Supply Company, Inc. (2022). A foreign manufacturer that sold products to an intermediary distributor, which resold them to another company that independently sold some into Kentucky, lacked minimum contacts and did not fall under Kentucky's long-arm statute, because the Kentucky sales rested on others' unilateral actions.
• Papineau v. Brake Supply Company, Inc. (2021). Under Rules 14, 21 and 42(b), the party seeking severance or bifurcation must show it is warranted. Where the claims share common questions, overlapping witnesses and evidence, and a risk of inconsistent verdicts, a single proceeding better serves judicial economy.
• Papineau v. Brake Supply Company (2020). Common law indemnity requires evidence that the third-party defendant was the primary, active tortfeasor, and a corporate veil piercing theory (including reverse piercing) must be pleaded in the complaint. KRS 411.182 gives a right to an apportionment instruction but is not itself a cause of action.
• Papineau v. Brake Supply Company (2020). Where the parties' evidence conflicts on whether a domestic subsidiary is the alter ego and agent of a foreign parent, the court may defer ruling on service of process and personal jurisdiction and allow limited jurisdictional discovery.
• Papineau v. Brake Supply Company, Inc. (2020). To plead common law indemnity under Kentucky law, a party must allege facts showing the third party was the primary, active tortfeasor and it was the secondary, passive one. K.R.S. 411.182 gives no independent cause of action for apportionment, only a right to an instruction where underlying fault exists.
• Schneider Electric USA, Inc. v. Williams (2019). The workers' compensation exclusive remedy provision covers only work-related injuries, so a brief period of employment does not bar a separate claim for non-work-related asbestos injury from a parent's workplace; damages may be apportioned between the two roles under the Owens Corning approach.
• Landreth v. Brake Supply Company, Inc. (2017). A plaintiff must offer direct or circumstantial evidence showing a reasonable probability of actual exposure to a particular defendant's asbestos product that was a substantial cause of the disease. Evidence showing only a possibility of exposure, or equal likelihood of exposure to another maker's product, does not defeat summary judgment.
• Anderson v. Motorola Solutions, Inc. (2015). In an asbestos case, circumstantial evidence that the plaintiff and the defendant's asbestos-containing products were in the same place at the same time and that inhaling the fibers was a substantial factor in the disease is enough to reach a jury on causation and product identification.
• Certainteed Corporation v. Dexter (2010). A participating defendant that wants fault apportioned to an empty-chair defendant must prove that defendant's liability, just as it would have to be proved against a participating defendant. A trial court's finding that a verdict is not sustained by sufficient evidence is reviewed for clear error, and its decision to grant a new trial is reviewed for abuse of discretion, with great deference to the trial court.
• Cardinal Industrial Insulation Co., Inc. v. Norris (2009). Under Kentucky's substantial factor test, a plaintiff must show that the defendant's asbestos work probably, not merely possibly, exposed him; fiber drift is expert evidence rather than a causation test and cannot alone support liability without proof of proximity. A claim of professional negligence against an engineer requires expert testimony on the standard of care.
• Strickland v. Owens Corning (1998). A jury's allocation of fault must have evidentiary support, and an allocation to a distributor exceeding that of the manufacturer and all other companies combined was against the weight of the evidence. Remittitur may be used to correct such a malapportionment of fault.

Louisiana

• Lewis v. Taylor-Seidenbach, Inc. (2024). Under Louisiana law a settlement and release is treated as res judicata between the parties who signed it, and a release of all asbestos-related claims bars later claims on the same exposure, though a remaining defendant may still prove at trial that the released party was a joint tortfeasor to obtain a virile share credit.
• Hotard v. Avondale Industries, Inc. (2023). Under Rule 54(b), a court may reconsider an interlocutory order denying leave to file third-party demands for cause, considering factors such as an intervening change in controlling law. A party that files a cross-claim at the outset and does not invoke an arbitration clause for years waives its right to arbitrate interrelated claims.
• Marsh v. Continental Insurance Company (2023). In maritime asbestos cases, the liability of non-settling defendants is calculated in proportion to the jury's allocation of responsibility rather than by a pro tanto credit, which applies only when fault cannot be fairly apportioned. Maritime asbestos litigation is not 'non-ordinary' so as to justify a departure from this rule.
• Pete v. Boland Marine and Manufacturing Company, LLC (4th Circuit, 2023). A jury instruction that correctly makes fault an element of a take-home claim cures the omission of fault from a verdict interrogatory when no timely objection was made. The reviewing court will not disturb a jury's causation finding or a general damage award unless the record shows manifest error or an abuse of discretion.
• Robichaux v. Huntington Ingalls Inc. (2023). A corporate representative may testify to matters within the corporation's knowledge regardless of personal knowledge. A request for information a party will not provide is a motion to compel, not a motion in limine, and the court will not reopen closed discovery through an evidentiary motion.
• Robichaux v. Huntington Ingalls Inc. (2023). Under Louisiana law, releases of future claims are enforceable, and releases that cover future cancer or all future asbestos-exposure claims cover later-developed mesothelioma unless the plaintiff shows no intent to release it. A release that leaves doubt about whether a future claim is covered will not be read to release it.