Choice of Law in Asbestos Cases

Decisions in our library in which the court ruled on which state's law applies: 374 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.

Florida

• Matter of Celotex Corp. (1996). Under Illinois law, asbestos in a building is covered "physical injury to tangible property" once it reaches a threshold such as fiber levels above outdoor levels or governmental limits, or a legal requirement to remove or remedy it; mere presence of asbestos-containing material is not enough. Coverage is triggered continuously over multiple policy periods, and the insured need not prove its own liability.
• Matter of Celotex Corp. (1994). Under the plain-meaning rule of Florida, Illinois, New York and Ohio law, extrinsic evidence cannot create an ambiguity in an insurance exclusion. "Asbestosis" is a single non-malignant disease, and "related diseases" covers only diseases resulting from asbestosis.
• Celotex Corp. v. Meehan (1988). Florida's borrowing statute applies only if the significant-relationships test shows the cause of action arose in another state, and the place where the disease was discovered or diagnosed is just one factor. A wrongful death action is derivative of the injured person's own right to recover.
• Meehan v. Celotex Corp. (3rd District, 1985). For Florida's borrowing statute, a tort cause of action arises when the plaintiff knew or should have known of the cause of action or the invasion of his legal rights, not at the time of exposure; the prior Marano holding to the contrary was overruled.
• Nance v. Johns-Manville Sales Corp. (3rd District, 1985). Under Florida's borrowing statute, a tort claim arises where the last act necessary to establish liability occurs, which is where the plaintiff knew or should have known of the right to sue. Whether Florida's or Virginia's limitations period applies therefore turns on where that knowledge arose.

Georgia

• Davis v. Louisiana-Pacific Corp. (2018). Under OCGA § 34-9-242, the 'accident' for an occupational disease is the exposure to asbestos, so where exposure occurred during employment under a contract made in Alabama for work exclusively there, Georgia's Board lacks jurisdiction even if diagnosis, disability and death occurred in Georgia.
• Adamson v. General Elec. Co. (2010). To survive summary judgment, a plaintiff must present evidence that the defendant's asbestos-containing product was used at the plaintiff's work location and that the plaintiff was in proximity to it while it was being used; generalized or speculative testimony is not enough.

Hawaii

• Cabasug v. Crane Co. (2013). Under the Sisson/Grubart test, admiralty law governs asbestos claims by a shipyard worker exposed aboard Navy vessels in drydock, and the Ninth Circuit's four-factor test in Myhran no longer controls.

Illinois

• Krik v. Exxon Mobil Corp. (2017). A district court may exclude expert testimony that every asbestos exposure, whether framed as "each and every" or "cumulative" exposure, is a substantial contributing factor, because it is not tied to dose and shifts the burden of proof on causation. A new trial for improper juror-related contact requires a showing of prejudice.
• Startley v. Welco Mfg. Co. (1st District, 2nd Division, 2017). Under Illinois's frequency, regularity and proximity test, which is less rigid for mesothelioma, testimony that a worker used a defendant's joint compound on some jobs, backed by expert evidence that low exposures contribute to the disease, can let a jury find a substantial factor. The injury occurred in Illinois, so Illinois law presumptively applies.
• Quirin v. Lorillard Tobacco Company (2014). Maritime law governs asbestos exposure during work on a Navy vessel. A valve maker may owe a duty to warn about asbestos gaskets and packing supplied by others where its valves needed asbestos components to function and those parts would be replaced with similar materials, but it owes no such duty for third-party insulation it did not supply.
• Smith v. Crane Co. (2014). Under Illinois appellate decisions (Monroe and Gillenwater), a defendant owes no duty to a spouse for loss of consortium if the couple was not married when the exposure or injury occurred, and the discovery rule does not change this.
• Stanley v. Ameren Illinois Co. (2013). An owner or general contractor owes a duty to a subcontractor's worker under the retained-control doctrine only if it controls the manner and methods of the work, not mere general oversight. Asbestos-containing thermal insulation installed in a new power plant is an improvement to real property, so the Illinois 10-year construction statute of repose bars claims over its installation.
• Gregory v. Beazer East (1st District, 5th Division, 2008). An owner who hires an independent contractor owes a duty to the contractor's employee only if it retained control over how the work was done; general rights to inspect, stop work and control access are not enough. Under the Restatement (Second) of Conflict of Laws, choice-of-law analysis (depecage) applies to issues, not to individual defendants in a single-injury case.
• US Gypsum Co. v. Admiral Ins. Co. (1st District, 5th Division, 1994). Under Illinois law, an insured's liability in the underlying cases need not be re-proved in the coverage action; asbestos-building-material property damage is covered, the own-product exclusions do not bar removal costs, and coverage is triggered continuously rather than at discovery. The number of occurrences depends on the cause of damage, and all triggered primary coverage must be exhausted before excess policies attach.
• Krull v. Celotex Corp. (1985). A corporation that survives a formal merger assumes all debts and liabilities of the merged-out predecessor, including contingent tort liabilities such as punitive damages, as if it had incurred them itself; the law of the surviving corporation's state of incorporation (Delaware) governs.

Indiana

• Hedden v. CBS Corporation (2015). Maritime law applies to asbestos exposure aboard a Navy ship, and the two-disease rule governs under maritime law. Kentucky law governs the non-maritime claims, and its one-disease rule bars a mesothelioma suit after an earlier suit over asbestosis.

Iowa

• Perrin v. Owens-Corning Fiberglas Corp. (1994). Under Iowa law, evidence that a defendant's asbestos products were in stock at shipyards and used on ships generally shows only a possibility of exposure and cannot support a reasonable inference that the plaintiff was exposed to them aboard his ship. Iowa has not adopted a burden-shifting rule for asbestos cases.

Kansas

• Harding v. Proko Industries, Inc. (1991). Applying the Texas choice-of-law rules (Restatement (Second) most significant relationship test), the law of the state where the exposure and the defendants' conduct occurred governs, not the state where the disease was later discovered or where the plaintiff later lived.
• Menne v. Celotex Corp. (1989). The ten-year provision in K.S.A. 60-513(b) is a statute of repose, and therefore substantive rather than procedural. Defendants' stipulation to apply Nebraska substantive law waived it as a defense.
• 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

• Stallings v. Georgia-Pacific Corporation (2015). Under both maritime law and Kentucky law, a plaintiff must show exposure to the defendant's product at a level high enough to make a finding of substantial causation more than conjecture. A manufacturer is not liable for asbestos in other makers' replacement parts, and an expert opinion that any exposure is a substantial cause does not meet that standard.
• Bruszewski v. Motley Rice, LLC (2012). Under Kentucky law, a malpractice claim for failing to file suit before the limitations period ran accrues when that period expires, even if the client could still recover from bankruptcy trusts. Kentucky law does not allow recovery of "lost" punitive damages in a legal malpractice action.

Louisiana

• Ragas v. Taylor-Seidenbach, Inc. (2024). Under the Louisiana Products Liability Act, a professional vendor must hold a product out as its own and operate with the size, volume and merchandising practices that presume knowledge of defects; a plaintiff who offers no opposing evidence cannot defeat summary judgment on manufacturer, vendor or intentional tort claims.
• Barrosse v. Huntington Ingalls, Incorporated (2023). In the LHWCA twilight zone, neither express nor conflict preemption bars a Louisiana maritime worker's state-law tort claim where the worker seeks no LHWCA compensation and his injury was not covered by the applicable pre-1975 Louisiana workers' compensation statute. The holding is limited to that narrow category of claims.
• Becnel v. Lamorak Insurance Company (2022). Under Louisiana law, wrongful death claims are governed by the law in effect at the time of death, so comparative fault applies. Survival claims are governed by the law in effect when the exposure occurred, so pre-August 1980 exposures fall under contributory negligence. A defendant relying on that defense must prove by a preponderance of the evidence that the plaintiff's negligence, here smoking, was a cause of the injury.
• Cortez v. Lamorak Ins. Co. (2022). The LHWCA preempts state-law tort claims, including take-home exposure claims, by a covered maritime worker against his employer and the employer's insurer, and the date the disease manifested determines which version of the LHWCA applies. Plaintiff also failed to produce evidence of an intentional tort under Louisiana's substantial-certainty standard.
• Falcone v. Anco Insulations, Inc. (2022). Summary judgment on whether a company with a similar name took on a predecessor's liabilities was inappropriate where the transfer of liabilities was unclear, the governing law (Texas or forum law) had not been established, and further discovery was needed.
• Williams v. Boeing Company (2022). Under Louisiana law, a plaintiff need only show a reasonable jury could find it more likely than not that he inhaled the defendant's asbestos fibers, and a court may not draw inferences against the non-movant on summary judgment. Wrongful death and survival actions are separate causes of action, so a late wrongful death claim by new plaintiffs does not relate back to the decedent's original suit.
• Barrosse v. Huntington Ingalls Incorporated (2021). The post-1972 LHWCA applies to a long-latency asbestos disease based on the date the disease manifested. For covered shipyard workers in the 'twilight zone', the LHWCA's exclusivity provision preempts state-law negligence claims against the employer, and retroactive application does not violate due process.
• McAllister v. McDERMOTT, Inc. (2020). Under general maritime law a plaintiff must show a defendant's conduct was a substantial factor in the injury, and circumstantial evidence can show exposure, but not when nothing shows the defendant's product was present at the worksite. Louisiana law governed successor liability and does not recognize the product line exception.
• Michel v. Ford Motor Co. (2019). The Louisiana Workers' Compensation Act bars wrongful death tort claims against an employer for mesothelioma because such claims arise at death, after mesothelioma became a covered disease in 1975. Plaintiffs may plead employer and premises liability in the alternative under Rule 8(d)(3).
• Chevron Oronite Company LLC v. Jacobs Field Services North America, Inc. (2018). Potential rather than actual liability was the standard because Chevron Oronite tendered the defense and Jacobs, which had a fair opportunity to defend and join settlement talks, refused. The court did not decide whether a written contract alone would suffice. A phrase covering attorney's fees "relating to any of the foregoing" applies to every preceding disjunctive clause.
• Rousseau v. Johnson & Johnson (2018). A removing defendant claiming improper joinder must show no reasonable possibility of recovery against the non-diverse defendant, a heavy burden with doubts resolved for remand. Here, the allegations that K&B was a professional vendor, with the case still at an early stage, left a possibility of recovery.
• Bell v. Foster Wheeler Energy Corp. (2017). Under Louisiana's choice-of-law articles 3515 and 3542, Louisiana's policies would be most seriously impaired if its survival law were not applied to a Louisiana domiciliary's claim, and article 3545 requires Louisiana law, including on punitive damages, for a wrongful death claim by a Louisiana domiciliary injured in Louisiana by a product.
• Bell v. Foster Wheeler Energy Corp. (2017). Under Louisiana's choice of law rules, each issue is analyzed separately; the survival claim, a loss-compensating rule, follows the decedent's Louisiana domicile, while punitive damages, a conduct-regulating rule, follow the place where the conduct occurred.
• Bell v. Foster Wheeler Energy Corp. (2017). Where a seaman's asbestos exposure occurred both on the high seas and in territorial waters, DOHSA does not bar a survival action, which proceeds under general maritime law. Under general maritime law a seaman's survivors may recover only pecuniary losses, but pre-death pain and suffering is treated as pecuniary.
• Williams v. Placid Oil Company (3rd Circuit, 2017). A plaintiff need not prove an exact asbestos dose, only significant exposure to the defendant's product that was a substantial factor in causing the disease. The survival action is governed by the pre-comparative-fault law in force at the time of exposure, while the wrongful death action is governed by the law in force at the time of death.
• Comardelle v. Pennsylvania General Insurance Company (2014). A company that acquires assets is not liable as successor for the transferor's liabilities unless it expressly assumed them; the unambiguous Contribution Agreement transferred only liabilities connected to the listed assets, so under either Texas or Louisiana law P2S did not assume SECO's employer liability.
• Phillips v. Abb Combustion Engineering, Inc. (2013). Where the nonmovant first raises a serious choice-of-law question in her opposition, so that the law governing the time bar is in dispute, summary judgment on prescription and peremption is not well suited until the movants adequately brief the issue and support it with competent evidence.
• Adams v. Owens-Corning Fiberglas Corp. (1st Circuit, 2005). A tort claim against an employer for asbestos exposure accrues under the law in force at the time of significant exposure, so exposure before the 1972 LHWCA extension to land-based work and before workers' compensation covered a disease does not bar a tort suit. The exception of no cause of action based on an affirmative defense is sustained only if the petition excludes every reasonable hypothesis other than the defense.
• Cichirillo v. Avondale Industries, Inc. (2005). A suit filed before a tort claim becomes actionable is premature and cannot interrupt Louisiana prescription. A 1992 Mississippi asbestosis suit therefore did not interrupt prescription on a mesothelioma claim that was not diagnosed until 1999.
• Zimko v. American Cyanamid (4th Circuit, 2005). An employer is immune from tort suit under workers' compensation exclusivity unless it committed an intentional act, which requires intent to injure or knowledge that injury was substantially certain; knowingly maintaining a dangerous asbestos workplace is only negligence. An employer owes a duty of reasonable care to household members of employees exposed to asbestos carried home on the employee's clothing or person.
• Cichirillo v. Avondale Industries (4th Circuit, 2004). A timely suit in a court of competent jurisdiction and venue in another state interrupts Louisiana prescription, including as to solidary obligors, and the plaintiff's Mississippi complaint listing mesothelioma among the conditions claimed gave fair notice to interrupt it.
• Breaux v. Avondale Industries, Inc. (4th Circuit, 2003). Res judicata does not bar a later suit against different defendants absent identity of parties, and solidary liability does not create privity. The joinder rule of La. C.C.P. art. 425(A) yields to the interests of justice where no single court has jurisdiction over all defendants.
• Callaway v. Anco Insulation, Inc. (4th Circuit, 1998). A survival action is governed by the workers' compensation law in effect at the time of exposure, and a wrongful death action by the law in effect at death. Workers' compensation exclusivity bars a negligence wrongful death claim but not a survival claim based on pre-1975 exposure; an intentional tort claim needs evidence of intent, not just allegations that the employer knew or should have known.
• Meredith v. Asbestos Corp., Ltd. (4th Circuit, 1998). A wrongful death action arises at the time of death, so the workers' compensation exclusivity law in effect on the date of death governs, barring tort wrongful death suits against the employer even where the asbestos exposure occurred before the 1976 amendment. A pre-death settlement reserving rights against other defendants does not preclude a survival action against defendants not named in the earlier suit.
• Egan v. Kaiser Aluminum & Chemical Corp. (4th Circuit, 1996). A short exposure to a defendant's asbestos product can be a substantial contributing factor in mesothelioma, and circumstantial evidence can support an inference that the product came from that defendant. Louisiana law, which bars punitive damages here, governed a Louisiana resident's asbestos injury in Louisiana.
• Coates v. AC and S, Inc. (1994). Pre-comparative-fault law and equal ("by heads") apportionment governed the wrongful death claim because the significant exposures came before August 1, 1980. The court refused to rule asbestos products unreasonably dangerous per se as a matter of law, admitted the OSHA and EPA publications, and denied Owens-Corning's three motions.