Wrongful Death and Survival in Asbestos Cases

Decisions in our library in which the court ruled on wrongful death and survival actions: 760 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.

Illinois

• Froud v. Celotex Corporation (1st District, 1982). Under the Illinois Supreme Court's National Bank decision, the Survival Act neither authorizes nor prohibits punitive damages, so common law claims for punitive damages survive the death of the injured person.
• Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1st District, 1979). In a case involving a disease that develops slowly over many years, the limitations period begins when the plaintiff knew or reasonably should have known he was injured by the defendant's wrongful conduct or defective product. When the evidence conflicts about that date, it is a fact question that cannot be resolved on summary judgment.

Indiana

• 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.
• TH Agriculture and Nutrition, LLC. v. Akaiwa (2007). The asbestos-specific accrual rule in Indiana Code 34-20-3-2 applies only to persons who mined and sold commercial asbestos, so a mere distributor is subject to the ten-year statute of repose in Section 1. The principal-distributor provision in 34-20-2-4 does not make a distributor a miner for this purpose.
• Jurich v. John Crane, Inc. (2005). Under the Indiana Supreme Court's Ott test, the repose statute's exception applies only if a reasonably experienced physician could have diagnosed a clinically recognized, symptomatic or routinely detectable asbestos-related disease within the ten-year period; asymptomatic cellular damage detectable only by unethical invasive testing does not qualify.
• AlliedSignal, Inc. v. Herring (2003). The asbestos-specific repose provision (Section 2) applies only to entities that mined raw commercial asbestos, so claims against sellers of asbestos-containing products fall under the general ten-year product liability repose period, subject to a limited exception where a reasonably experienced physician could have diagnosed the disease within the ten years but the plaintiff had no reason to know until afterward.
• Allied Signal, Inc. v. Herring (2001). The asbestos exception to Indiana's ten-year products liability statute of repose applies to persons who mined and persons who sold commercial asbestos, not only to those who did both. Whether defendants sold "commercial asbestos" was waived because it was not raised in the trial court.
• Black v. ACandS, Inc. (2001). The asbestos exception to the ten-year products liability statute of repose, Ind. Code 34-20-3-2, applies to persons who mined commercial asbestos and to persons who sold it without mining it. A plaintiff must produce evidence supporting an inference that he inhaled asbestos dust from the specific defendant's product.
• Jurich v. Garlock, Inc. (2001). The asbestos exception to the Indiana Product Liability Act's repose period covers sellers of raw or processed commercial asbestos, not sellers of asbestos-containing products. The general ten-year repose period violates the open courts clause of Article I, Section 12 as applied to a latent asbestos disease where exposure began before the Act or there is no evidence the product was over ten years old at exposure.
• Holmes v. ACandS, Inc. (1999). A product liability claim for wrongful death resulting from an asbestos-related disease or injury accrues on the date of the decedent's death, so it is timely if filed within two years of death even if more than two years after diagnosis.
• Novicki v. Rapid-American Corp. (1999). Section 5.5 of the Indiana Product Liability Act, with its two-year discovery rule for asbestos claims, applies only to defendants that both mined and sold commercial asbestos; all other defendants are governed by the limitation and repose periods of Section 5. A defendant that concedes it did not both mine and sell asbestos cannot invoke Section 5.5 merely for argument's sake.
• Sorenson v. Allied Products Corp. (1999). A company that buys another's assets is not liable for the seller's liabilities unless an exception applies (assumption, fraud, de facto merger, or mere continuation). Here no continuity of ownership or management and no dissolution of the seller meant no de facto merger or mere continuation. A bankruptcy court's asset sale did not strip the state trial court of jurisdiction over a post-sale successor liability tort claim.
• Spoonamore v. Armstrong World Industries, Inc. (1999). A plaintiff must produce evidence that he inhaled asbestos from the defendant's product. Indiana's asbestos exception to the ten-year statute of repose applies only to defendants that both mined and sold commercial asbestos. Where the repose period has run on the underlying product claims, a wrongful death claim based on them is also barred.
• Spoonamore v. Armstrong World Industries, Inc. (1999). If the product liability statute of repose has expired for the claims underlying an asbestos wrongful death action, the wrongful death action is barred too. The asbestos accrual provision, Ind. Code § 34-20-3-2, applies only to defendants who mined and sold commercial asbestos.
• Spoonamore v. Armstrong World Industries, Inc. (1998). Indiana's asbestos exception to the ten-year product liability statute of repose applies only to defendants that both mined and sold commercial asbestos. Where the exception does not apply and the repose period has run, the underlying product claims and the wrongful death claim based on them are barred.
• Knox v. AC & S, Inc. (1988). CERCLA § 9658's discovery rule applies only where a state claim accompanies an underlying CERCLA action for a release into the environment, so it does not preempt Indiana's products liability statute of repose, which bars asbestos claims based on products delivered more than the repose period before suit.

Iowa

• Van Fossen v. MidAmerican Energy Co. (2009). One who employs an independent contractor owes no general duty of reasonable care to a household member of the contractor's employee, and owes only the limited duties under Restatement (Second) of Torts sections 413, 416 and 427, which were not triggered here.
• Fossen v. Midamerican Energy Company (2008). Iowa courts weigh the relationship between the parties, foreseeability of harm and public policy; on that analysis a landowner owes no duty to the spouse of an independent contractor's employee who carried asbestos fibers home from the premises.
• Meyer v. Iowa State Penitentiary (1991). Iowa Code section 85A.12 states conditions that must exist before a right of compensation arises rather than a statute of limitations, so the discovery rule cannot be used to extend its time periods.
• Wilber v. Owens-Corning Fiberglass Corp. (1991). Diagnosis of asbestosis does not start the statute of limitations running on a separate, distinct, later-manifested disease such as mesothelioma that stems from the same asbestos exposure.

Kansas

• Little v. the Budd Company, Inc. (2020). The Safety Appliance Act preempts state regulation only of the safety devices listed in the Act, so state tort claims about unlisted equipment such as asbestos pipe insulation are not preempted. A preemption theory not raised in the district court is waived on appeal.
• 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.

Kentucky

• Sheets v. Ford Motor Co. (2021). Denial of a claim of up-the-ladder (statutory employer) workers' compensation immunity does not satisfy the collateral order doctrine, because it involves no substantial public interest that would be imperiled absent an immediate appeal, so it is not immediately appealable. Ervin Cable Construction v. Lay was overruled.
• 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.
• 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.
• 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.
• Lee v. DuPONT (2008). To avoid the exclusive remedy of Kentucky's Workers' Compensation Act, a plaintiff must show the employer acted with specific intent to harm the employee; knowledge of a hazard and failure to protect or warn, even if grossly negligent or reckless, is not enough.
• White v. Cardinal Industrial Insulation Co., Inc. (2007). Legal cause may be shown by circumstantial evidence from which a jury could reasonably infer that the defendant's activity was a substantial factor in the harm, so summary judgment was improper. Products liability standards also apply to a distributor of asbestos-containing materials, and a contractor's compliance with contract specifications did not shield it.
• Combs v. Albert Kahn Associates, Inc. (2006). Under Kentucky's one-disease approach, a plaintiff with asbestosis who already sued and claimed increased cancer risk must sue within one year of the first diagnosis; Carroll's later-accrual rule for lung cancer is a narrow exception that did not apply here.
• Rehm v. Navistar International (2005). A property owner is a statutory contractor immune from tort suits by a subcontractor's employee if the subcontracted work is a regular or recurrent part of its business. Where the underlying facts are undisputed, whether work is regular or recurrent is a question of law, and the immunity is strictly construed.
• Heizer v. New Orleans and Pacific Railway Co. (2004). A FELA survival claim accrues when the worker knew or should have known of both the injury and its cause, and the three-year period is not extended here by mental incapacity. A FELA wrongful death claim is extinguished only if the survival claim's limitations period expired during the worker's lifetime; otherwise it runs three years from death.
• Carroll v. Owens-Corning Fiberglas Corp. (2000). Asbestosis and lung cancer are separate and distinct diseases, so a cause of action for lung cancer accrues on the date of the cancer diagnosis rather than the earlier asbestosis diagnosis.
• Louisville Trust Co. v. Johns-Manville Products (1979). The discovery rule used in Kentucky medical malpractice cases also applies to tort actions for injury from latent disease caused by exposure to a harmful substance, so a claim accrues when the plaintiff knew or should have known of the injury and its possible cause in the defendant's conduct. Columbus Mining Co. v. Walker was overruled.

Louisiana

• Prude v. Fidelity and Casualty Insurance Company OF New York (2025). Where the LHWCA's situs and status requirements are met and not disputed, workers' compensation is the employee's exclusive remedy against the employer, which bars tort wrongful death claims. The insurer's liability under Louisiana's Direct Action Statute is derivative of the insured employer's, so those claims are dismissed too.
• Matherne v. Huntington Ingalls Incorporated (2024). Summary judgment may be granted on the narrow facts that decedent had mesothelioma and died of it when no expert disputes them; the court need not state that specific causation and asbestos source remain disputed.
• Ragusa v. Louisiana Insurance Guaranty Association (2024). Claims against LIGA vest when the insurer is declared insolvent, so the liquidator's claim-filing deadline applies. A wrongful death claim is a separate cause of action from the survival action, so a timely survival action does not save a wrongful death claim filed after the deadline.
• Rivet v. Huntington Ingalls, Inc. (2024). Summary judgment is proper on diagnosis, asbestos causation and death where the plaintiffs' evidence supports those findings and no defendant offers contrary evidence; the ruling does not decide the source of the exposure.
• Stauder v. Shell Oil Company (4th Circuit, 2024). Under Pete v. Boland Marine, appellate courts must consider prior general damage awards as guidance when deciding whether a jury's award is an abuse of discretion, but those awards are only a starting point and do not cap what a jury may award given the particular facts.
• 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.
• Chenet v. Colgate-Palmolive Co. (4th Circuit, 2023). An issue summary judgment is appealable only if properly certified as final under La. C.C.P. art. 1915(B). Applying the four R.J. Messinger factors de novo, the court held the certification improper, so it had no appellate jurisdiction.
• Everett v. Air Products and Chemicals, Inc. (4th Circuit, 2023). A motion to join a summary judgment motion is subject to the mandatory 65-day filing deadline of La. C.C.P. art. 966(B)(1) and to service requirements. A plaintiff must produce specific evidence tying the defendant to the exposure to defeat summary judgment, but a court abuses its discretion by summarily denying a new trial where counsel's error may have caused a miscarriage of justice.
• Hernandez v. Huntington Ingalls, Inc. (2023). After all claims supporting federal-officer removal were dismissed, a federal court may decline supplemental jurisdiction over the remaining state-law claims under 28 U.S.C. § 1367(c) and the common-law factors of judicial economy, convenience, fairness and comity, and remand to state court.
• Rivet v. Huntington Ingalls Incorporated (2023). Under Rule 15(a)(2), leave to amend should be granted absent a substantial reason to deny it, and any delay or prejudice from related litigation elsewhere can be cured by staying the added claims rather than denying amendment.
• Robichaux v. Huntington Ingalls Inc. (2023). Avondale's contribution claims, which stand in the shoes of the plaintiffs by subrogation, were barred by res judicata because Robichaux had settled and released asbestos claims, including future mesothelioma claims, against the cross defendants. A defendant is also entitled to summary judgment where the plaintiff offers no evidence of exposure to that defendant's products.
• Rushton v. Taylor-Seidenbach, Inc. (2023). A court may enter partial final judgment under Rule 54(b) when it has disposed of one party in a multi-party case and there is no just reason for delay. Here an immediate appeal would let the Fifth Circuit resolve a recurring LHWCA preemption question.
• Stauder v. Shell Oil Company (4th Circuit, 2023). An appellate court may disturb a general damages award only after finding the jury abused its vast discretion, and prior awards are compared only after that finding. Under Burton and Cole, prejudgment interest against a joint tortfeasor added by amended petition runs from the date suit was originally filed.
• Allen v. Eagle Inc. (4th Circuit, 2022). Conflicting testimony about exposure is a credibility question that cannot be resolved on summary judgment. An expert's reliance on assumptions about frequency, duration and proximity of exposure goes to the weight of the opinion, not its admissibility under Daubert.
• Becnel v. Lamorak Insurance Co. (2022). Under Louisiana law, an intentional tort requires proof that the defendant desired the injury or knew it was substantially certain to follow, which is more than knowing a practice is dangerous. A fraud claim requires evidence of fraudulent intent, and conclusory allegations of silence do not supply it.
• 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.
• Brindell v. Carlisle Industrial Brake and Friction, Inc. (4th Circuit, 2022). Asbestos causation requires proof of exposure above background attributable to a specific defendant that was a substantial contributing factor. Once the defendant showed the plaintiffs could not meet that burden, speculation and conjecture could not create a genuine issue of material fact.