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.

Maine

• Austin v. Raybestos-Manhattan, Inc. (1984). Maine's comparative negligence statute (14 M.R.S.A. § 156) applies to strict products liability claims under § 221. A plaintiff's fault counts only if it consists of voluntarily and unreasonably proceeding to encounter a known danger, not a mere failure to discover or guard against a defect.
• Austin v. Unarco Industries, Inc. (1983). A shipyard worker's asbestos products liability claim against manufacturers is not within admiralty jurisdiction because his work was not traditional maritime activity. A bankruptcy debtor's automatic stay does not extend to solvent co-defendants. An appellate court applies a state-law clarification made after trial.
• Austin v. Johns-Manville Sales Corp. (1981). Under the LHWCA's exclusive liability provision, a compensation-paying employer is immune from third-party contribution or indemnity claims unless it specifically intended to injure the employee. Allegations of reckless misconduct, fraud about workplace hazards, or negligent medical care furnished under the Act do not overcome that immunity.

Maryland

• Rossello v. Zurich American Insurance Company (2020). Where continuous bodily injury triggers multiple CGL policy periods, the insurer's indemnity obligation is prorated by its time on the risk, and the insured bears the share for periods it chose not to insure, unless insurance was unavailable. The "all sums" joint-and-several approach is rejected.
• Mack Trucks, Inc. v. Coates (2018). A jury instruction on a liability theory the evidence did not generate is reversible error when it prejudices the party, and pattern instructions must be tailored to the theories actually in the case. A party must object to allegedly inconsistent civil verdicts before the jury is discharged, and a party's out-of-court denial of liability is inadmissible hearsay even under the completeness doctrine.
• Arbogast v. Georgia-Pacific LLC (2017). Under the LHWCA's exclusivity provision, an employer covered by the Act cannot be a joint tortfeasor, so third parties cannot bring contribution claims against it. Liability is not apportioned between a worker's covered and non-covered employment with the same employer.
• Wallace & Gale Asbestos Settlement Trust v. Carter (2013). Use plaintiffs in a Maryland wrongful death action must timely join the action to recover, and relation back cannot save their claims once the limitations period has run. Damages for a single harm such as lung cancer may be apportioned between asbestos and smoking where there is a reasonable basis for determining each cause's contribution, and apportionment is a causation question distinct from comparative fault.
• Brannan v. Wallace & Gale Asbestos Settlement Trust (2012). Under Maryland's final judgment rule, a plaintiff gets one recovery for a single harm. Estates that took judgments and settlements from other tortfeasors while a joint tortfeasor was in bankruptcy cannot later reopen them to collect from that tortfeasor's successor trust.
• Georgia-Pacific v. Farrar (2012). A manufacturer of an asbestos-containing product owes a duty to warn those within the foreseeable zone of danger, including a household member exposed through dust on a bystander worker's clothing. Maryland's frequency, proximity and regularity test governs whether bystander exposure is a substantial factor.
• Scapa Dryer Fabrics, Inc. v. Saville (2011). Evidence of regular work within arm's length of the defendant's asbestos-containing felts can satisfy the frequency, regularity and proximity test for substantial-factor causation, and a bankruptcy trust is a joint tortfeasor for offset purposes only as its settlement agreement provides.
• Crane v. Linkus (2010). Expert testimony that a defendant's unencapsulated asbestos product released respirable fibers above ambient levels is not required; lay testimony of visible dust from regular handling, plus expert testimony on dose-response and no safe threshold, can let a jury infer substantial-factor causation. A defendant is not credited for payments from bankrupt entities absent proof of tortfeasor status or trust terms providing a reduction.
• Scapa Dryer Fabrics, Inc. v. Saville (2010). A defendant seeking to reduce a verdict for payments from bankruptcy trusts under Maryland's contribution act must prove the trusts are joint tort-feasors. JNOV in a jury trial requires a motion for judgment at the close of all evidence. A manufacturer's duty to warn can continue after the plaintiff's exposure, so later-dated evidence of its knowledge can be relevant.
• Scapa Dryer Fabrics, Inc. v. Saville (2009). Circumstantial evidence of regular, close-range exposure to a defendant's asbestos product meets Maryland's frequency-regularity-proximity test for substantial-factor causation. A party seeking a verdict reduction for payments by claimed joint tort-feasors, such as bankruptcy trusts, must prove their joint tort-feasor status. A duty to warn can continue after exposure ends, so later-dated evidence of the defendant's knowledge can be relevant.
• National Union Fire Insurance Company OF Pittsburgh v. Porter Hayden Company (2005). Under Maryland law, coverage for asbestos bodily injury claims is triggered on exposure, exposure-in-residence and manifestation, so every policy on the risk in that span is triggered. Allocation among triggered policies is pro rata by time on the risk, and injury occurring after operations were completed is subject to the aggregate limits of policies then in effect, following In re Wallace & Gale, but fact questions remained on when Porter Hayden's operations were completed.
• Owens-Illinois, Inc. v. Cook (2005). Under the exposure approach, the noneconomic damages cap does not apply when the last asbestos exposure was before July 1, 1986, and this also covers a derivative loss of consortium claim. A premarital latent injury does not bar a consortium claim if neither spouse knew or could reasonably have known of it at marriage.
• Owens-Illinois, Inc. v. Cook (2005). A loss of consortium claim based on a latent premarital injury that neither spouse knew or could have known of at marriage accrues when the injury is discovered or reasonably discoverable. It is not subject to the damages cap when the underlying personal injury claim is not. A release reserving claims for mesothelioma is read as a whole under objective contract principles.
• Garlock v. Gallagher (2003). Plaintiffs are not parties to defendants' cross-claims, so the actual parties could stipulate to dismiss them under Rule 2-506 and the trial court could not nullify the dismissal. A defendant that settled by a pro tanto release and is not a party to the primary case is not counted as a share when dividing the verdict among joint tort-feasors.
• Owens-Illinois v. Gianotti (2002). Under Scribner, the Maryland noneconomic damages cap does not apply when the plaintiff's last asbestos exposure was before July 1, 1986. A loss of consortium claim is barred by a premarital injury only if the couple knew or should have known of the injury when they married.
• Hollingsworth v. Connor (2000). A nonresident component maker that sold its product to another company outside the forum, and did not direct activity at the forum, lacks minimum contacts even if it knew the product would be sold there. For Maryland's noneconomic damages cap, a mesothelioma cause of action arises when the disease is contracted, not at the first cellular change.
• Porter Hayden v. Bullinger (1998). A trial court may not withhold from nonsettling defendants the amounts and relevant terms of other defendants' settlements when it uses them to reduce verdicts to judgment. A default judgment is an admission of liability that makes the defaulting party a joint tort-feasor under the Maryland contribution statute.
• Anchor Packing Co. v. Grimshaw (1997). The Maryland cap on noneconomic damages applies to asbestos wrongful death claims arising after October 1, 1994. For personal injury claims, the cause of action arises when the disease develops, not at exposure or at diagnosis. Substantial-factor causation requires evidence of the frequency, regularity and proximity of the plaintiff's exposure to the defendant's product.
• Owens-Corning Fiberglas Corp. v. Garrett (1996). A bystander's proof of substantial-factor causation is judged by the frequency, regularity and proximity of exposure to the defendant's product. Punitive damages in a products case require clear and convincing evidence of actual knowledge of the defect and a bad-faith decision to market the product in conscious disregard of the danger. A defendant found not liable at trial is not a joint tort-feasor, so no settlement offset applies.
• Owens-Illinois, Inc. v. Armstrong (1992). A trial judge may exclude a document that technically qualifies as a business record if the objecting party shows it lacks the usual reliability, though a heavy burden applies. A cause of action arises under the noneconomic damages cap when it comes into existence, not when it is discovered. The contribution statute does not reduce a nonsettling defendant's liability by another defendant's punitive damages settlement.
• Vaughn v. Marine Transport Lines, Inc. (1989). A shipowner that settles a seaman's unseaworthiness claim may obtain indemnity from a manufacturer whose asbestos-containing product made the vessel unseaworthy, by showing potential liability, contribution of the product, and a reasonable settlement. A good-faith settlement with other manufacturers extinguishes contribution claims and does not reduce the non-settling manufacturer's liability.

Massachusetts

• Burleigh v. Alfa Laval, Inc. (2018). Under the Restatement (Second) of Conflict of Laws §§ 145-146, the law of the place of injury applies unless another state has a more significant relationship. Maine, where the decedent lived, worked and was exposed, had that relationship on the issues decided, even though the defendant's conduct occurred in Massachusetts.
• Thayer v. Pittsburgh-Corning Corporation (1997). Under Vassallo, a defendant is not liable under the implied warranty of merchantability for failure to warn of risks not reasonably foreseeable at the time of sale, so state of the art evidence is relevant. Lack of privity is judged by the date of injury, not the date of exposure or sale.
• O'connor v. Raymark Industries, Inc. (1987). Where several causes combine to produce an indivisible injury, the plaintiff need not prove but-for causation or separate out the effect of the defendant's product; a 'substantial contributing cause' instruction that distinguishes a substantial factor from a negligible one is correct.
• Eagle-Picher Industries v. Liberty Mut. Ins. Co. (1981). Under these occurrence-based liability policies, exposure to asbestos results in bodily injury only when it produces clinically evident, diagnosable disease, so coverage is triggered at manifestation, measured by the date of diagnosis or, if none, the date of death, with no pro rata apportionment.

Michigan

• Beaudrie v. Anchor Packing Co. (1998). Under the Michigan workers' compensation statute, all persons with a financial interest in a wrongful death recovery are "parties" for apportioning expenses of recovery. The lien-holder's reimbursement and its share of expenses are recalculated with each new recovery from a separate tortfeasor.
• Beaudrie v. Anchor Packing Co. (1994). Under Eddington, a workers' compensation carrier may seek reimbursement from the entire third-party recovery, whatever the type of damages, where the recipient is a compensation beneficiary; recoveries by non-beneficiaries are not subject to the lien.
• Brisboy v. Fibreboard Corp. (1988). A defendant's negligence need only be a proximate cause, meaning a substantial factor, of the harm, and it is not excused because other causes also contributed. Under pure comparative negligence, the particular risk doctrine does not narrowly define a smoker's risk, so the risk of lung cancer is within the risk a smoker assumes and the jury's comparison of fault must be given effect.
• Marshall v. Celotex Corp. (1988). Under Michigan law as the court applied it, a plaintiff may not proceed on a concert of action theory where she cannot show that any defendant supplied the asbestos-containing products to which the decedent may have been exposed, absent joinder of a significant majority of the potentially responsible parties.
• Marshall v. Celotex Corp. (1987). A plaintiff who cannot identify the specific product that caused the injury may still pursue a concert-of-action theory, and the court will not reject it at summary judgment. She must prove cause in fact through concerted activity and also proximate cause.
• Marshall v. Celotex Corp. (1987). Under Michigan law as predicted by the federal court, plaintiff could not shift the product-identification burden to defendants through alternative liability (not all possible defendants were joined), market share liability (inappropriate for non-fungible asbestos products and no proof of substantial market share) or enterprise liability (no joint control of risk alleged). Concert of action still requires proof of causation.
• Ins. Co. of No. Am. v. Forty-Eight Insulations (1978). Under occurrence-based liability policies, asbestos-related bodily injury occurs when fibers injure lung tissue after exposure, not when disease manifests, so every insurer on the risk during the exposure period must defend and indemnify, with costs apportioned by years of coverage.

Minnesota

• Conda v. Honeywell International, Inc. (2018). Expert causation testimony was admissible and sufficient where the district court considered foundational reliability and the evidence supported the verdict. The current Minn. Stat. § 604.02, subd. 1 does not apply when the events giving rise to the claim occurred before August 1, 2003, even if the claim accrued later.
• Newinski v. John Crane, Inc. (2009). Under Minnesota's comparative fault statute, a defendant found jointly liable is liable for the whole award, less any Pierringer-released share. Reallocating the share of non-party entities is premature because no judgment can be entered against them and uncollectibility cannot yet be determined.
• Strand v. Allied Insulation Supply Co. (2007). When settling parties invoke Pierringer principles, the settling defendant has paid its own share and gives up contribution claims. A settling defendant cannot keep contribution claims against others by also releasing them, because Minnesota law bars assigning personal-injury claims and the non-signing parties could not be sure of enforcing the release.
• Bunce v. Api, Inc. (2005). A defendant who settles with a plaintiff through a Pierringer release pays only its fair share and so has no accrued claim for contribution or indemnity against non-settling third-party defendants. A release that purports to reserve those claims cannot bind non-signatories, and the plaintiff's death does not change this.
• Conwed Corporation v. Union Carbide Corporation (2004). Under Minnesota law, an employer has no obligation to contribute to a third-party tortfeasor's Naig settlement with an injured employee, because a Naig settlement covers only damages for which the employer is not liable and the employer's fault does not affect their allocation.
• Tester v. American Standard, Inc. (1999). Minn. Stat. § 604.02, subd. 3 applies only to reallocating uncollectible amounts among parties in the same chain of manufacture and distribution. Minnesota law does not aggregate defendants' fault when comparing it to the plaintiff's, except for joint enterprises, and the court of appeals declined to extend that exception to asbestos cases.

Mississippi

• Dickens v. A-1 Auto Parts & Repair, Inc. (2019). Enterprise, market-share, concert-of-action and alternative liability theories are not recognized in Mississippi, and fraud-based and aiding-and-abetting conspiracy claims must be pleaded with particularity and facts showing the defendant's knowledge and substantial assistance.
• Dickens v. A-1 Auto Parts & Repair, Inc. (2018). Mississippi does not recognize enterprise, market-share, concert-of-action or alternative liability to excuse product identification in asbestos cases, and fraud-based claims must be pleaded with particularity under Rule 9(b). An aiding-and-abetting conspiracy claim requires allegations that the defendant knew of the conspiratorial conduct and substantially assisted it.
• Illinois Central Railroad Company v. Oakes EX rel. Hagan (2018). Under FELA, a railroad defendant is entitled to a dollar-for-dollar (pro tanto) setoff against a verdict for money already paid to the plaintiff for the same injuries; Ayers bars apportioning fault to nonparties but does not bar setoffs.
• Union Carbide Corporation v. Nix (2014). A manufacturer's compliance with the OSHA warning wording does not make its warning adequate as a matter of law, and expert testimony is not required where a warning's adequacy is within a layperson's understanding. A judge's comments suggesting the compensatory award was too low can taint a punitive award submitted right after.
• Owens Corning v. RJ Reynolds Tobacco Company (2004). A company that paid asbestos claimants cannot sue tobacco companies in a direct action for unjust enrichment, fraud or antitrust violations because its injury is derivative of the claimants' injuries and too remote to satisfy proximate cause. Proximate cause requires both foreseeability and a direct injury.

Missouri

• Poage v. Crane Co. (Eastern District, 2nd Division, 2017). A plaintiff can show a valve maker's product was a substantial factor in causing mesothelioma through a co-worker's testimony about shared work on the valves, and the maker owes a duty to warn and to design safely where its valves required or specified asbestos gaskets and packing. Missouri's statutory cap on punitive damages does not apply to this wrongful death action, and a defendant's setoff under § 537.060 is limited to settlements actually reached, not possible future asbestos trust recoveries.
• Urbach v. the Okonite Company (Eastern District, 2017). Under Wisconsin substantive law, co-worker testimony and expert bystander-exposure evidence can support a jury finding that a defendant's asbestos product was a substantial factor in causing mesothelioma. Wisconsin's wrongful-death cap applies after fault is apportioned, and the Wisconsin statute requiring assignment of asbestos trust claims before collecting a judgment is procedural, so Missouri law governs it.
• Zurich American Insurance Company v. Insurance Company of North America (2016). Under Missouri law, a settlement of a progressive-disease asbestos claim is allocated among consecutive insurers pro rata by time on the risk. No equitable contribution or subrogation lies against an insurer whose allocated share is less than its deductible.
• Foreman v. AO Smith Corp. (Eastern District, 4th Division, 2015). Under Maryland's frequency, proximity and regularity test, exposure to a defendant's asbestos products may be shown circumstantially, and the plaintiff's testimony plus expert testimony was enough for a jury. A settlement release makes a settling party a joint tortfeasor for statutory reduction only if it so provides, and an inconsistent verdict claim not raised before the jury is discharged is waived.