Employer and Contractor Liability, and Workers' Compensation in Asbestos Cases

Decisions in our library in which the court ruled on liability of an employer: 449 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.

About this issue

In most states workers' compensation is the exclusive remedy against an employer for a covered work injury: the worker receives benefits without proving fault but generally cannot sue the employer. That immunity does not usually protect other companies, so a worker can still sue the manufacturers, suppliers and property owners whose asbestos caused the disease, subject to the compensation insurer's lien or credit and, in some states, its consent to a settlement.

Questions in this section include:

• Is there an exception to the employer's immunity? Some states allow suits for intentional injury, but most define it narrowly, often requiring an actual intent to injure or deliberate intent, not just knowledge of a serious risk. Other exceptions can apply, for example when an employer failed to carry required compensation coverage, and Texas preserves certain death claims based on an employer's gross negligence.
• Was the defendant the person's employer at all, or a parent company, contractor or owner? Is a general contractor or owner a statutory employer that shares the employer's immunity?
• Does the disease fall within the compensation act? States use different rules on coverage and timing for occupational diseases, and in some a disease that appears long after employment ends may fall outside the act and allow a lawsuit.

Some workers are under federal systems instead: civilian federal employees (FECA), railroad workers (FELA), and longshore workers and seamen (maritime law). FELA and the Jones Act are negligence suits against the employer, not no-fault compensation.

Alabama

• Bobo v. Agco Corporation (2013). The discretionary function doctrine applies to TVA's power-generation activities, but it does not shield TVA from claims that it violated mandatory OSHA regulations or its own mandatory policies, or that it negligently carried out safety procedures it had adopted. Decisions not to warn employees' spouses and on the content of training are discretionary and protected.

Alaska

• Peek v. Skw/clinton (1993). An employer may use the "last injurious exposure" rule as a defense where the employee settled with the last potentially liable employer who was properly before the Board. The Board's finding that the last employer's exposure was a substantial factor was supported by substantial evidence.

Arizona

• City of Phoenix v. Glenayre Electronics, Inc. (1st Division, 2016). Arizona's construction statute of repose, A.R.S. § 12-552(A), applies to governmental entities despite the nullum tempus doctrine, and indemnity obligations in City permits are claims 'based in contract' under the statute.

Arkansas

• Hendrix v. Alcoa, Inc. (2016). Because the Workers' Compensation Act covers asbestos-related claims, a claim barred by the three-year statute of repose in section 11-9-702(a)(2)(B) still falls within the Act's coverage, so the exclusive-remedy provision bars a common-law tort suit against the employer.
• Alcoa v. Vann (2nd Division, 1985). Under the substantial-evidence standard, the Commission's finding of a causal connection between the occupational disease and employment by clear and convincing evidence stands if fair-minded persons could have reached it; the Commission weighs conflicting medical opinions, and medical certainty is not required.

California

• Putt v. Ford Motor Co. (In re Laosd Asbestos Cases) (2nd Appellate District, 2nd Division, 2021). Where the jury found Ford's brake pads defective and a substantial factor in causing mesothelioma, and it was undisputed that other makers' brake pads were identical and also exposed the plaintiff, the evidence compelled apportioning some nonzero fault to those others, and a defendant need not prove precise percentages to overturn a 100 percent apportionment.
• Khosravan v. Exxon Mobil Corp. (2nd Appellate District, 7th Division, 2021). A defendant owes no duty to protect workers from asbestos at premises it did not own, possess or control. A 1954 agreement guaranteeing the operating companies' performance did not create a duty to refinery workers, either through a special relationship or under the Biakanja/J'Aire factors.
• Viale v. Air & Liquid Systems Corp. (2020). A hirer or premises owner is liable to a contractor's worker only on evidence of negligent hiring or supervision, negligently furnished unsafe equipment, concealed hazards, or active control that caused harm. Plaintiffs must tie the owner's conduct to the worker's time and place of work.
• Schildknegt v. Air and Liquid Systems Corp. (2nd Appellate District, 4th Division, 2019). A defendant does not shift the summary judgment burden on asbestos exposure unless it negates every pleaded theory, including that it acted as a supplier of replacement parts. A brand name on packaging is nonhearsay circumstantial evidence of a product's source. Under Rutherford, a plaintiff needs threshold exposure plus expert testimony that the exposure contributed to the risk of disease, and need not show a particular length, intensity or frequency of exposure.
• Hubbard v. California Water Service Company (1st Appellate District, 3rd Division, 2018). Under Kinsman, the party asserting the exception to a hirer's general non-liability for a contractor's employees bears the burden of proving that the contractor neither knew nor could reasonably be expected to know of the concealed hazard. The contractor's actual or constructive knowledge is an essential element of the failure-to-warn claim.
• Rudolph v. Rudolph and Sletten, Inc. (1st Appellate District, 5th Division, 2018). Where an employee's occupational asbestos exposure substantially contributed to his mesothelioma, the injury is covered by workers' compensation, and a separate non-occupational exposure (such as take-home exposure) does not create a separate injury outside the exclusive remedy.
• Sandoval v. American Appliance Manufacturing Corp. (2nd Appellate District, 4th Division, 2017). Under Kesner, employers and property owners owe a duty to prevent take-home asbestos exposure to household members, and a defendant seeking summary judgment for lack of exposure evidence must show the plaintiff cannot obtain it. A dissolved corporation is not shielded from punitive damages claims, and a strict liability claim can rest on a bystander theory for defective components of the defendant's own product.
• Kesner v. Superior Court and Haver (2016). Employers and premises owners that use asbestos owe a duty of ordinary care to prevent take-home exposure to asbestos carried on workers' bodies and clothing, but the duty extends only to members of the worker's household.
• Casey v. Dynalectric Company (1st Appellate District, 3rd Division, 2015). State industrial dust safety orders establish a duty to use reasonable care to avoid exposing others to significant levels of industrial dust, whether or not the defendant knew or should have known the dust contained asbestos.
• Melendrez v. Ameron International Corporation (2nd Appellate District, 4th Division, 2015). If employment substantially contributed to a disease, the disease is covered by workers' compensation even if a nonindustrial cause such as home exposure also contributed, so the exclusive remedy rule bars a tort suit against the employer for the whole injury.
• Kesner v. Superior Court of Alameda County (1st Appellate District, 3rd Division, 2014). An employer's duty of reasonable care extends at least to members of an employee's household and to long-term, frequent guests likely to be affected by toxic materials brought home on the worker's clothing. Premises-liability no-duty rules such as Campbell do not control a negligence claim about the employer's own manufacturing conduct.
• Klinger v. Alderete (2nd Appellate District, 2nd Division, 2013). A malicious prosecution claim arising from the filing of an underlying lawsuit is subject to the anti-SLAPP statute, and it fails if the underlying suit had probable cause, meaning it was legally tenable and based on facts the plaintiff reasonably believed true when it was filed. Later-decided cases do not make a suit untenable at the time it was filed.
• Swanson v. Simpson Timber Company (2nd Appellate District, 3rd Division, 2013). Under the Rowland factors, a premises owner owes no duty to an employee secondarily exposed to asbestos off the premises through a family member and fellow employee's work clothes. An employee's secondary exposure from wearing his own work clothes home is a derivative injury barred by workers' compensation exclusivity.
• Whitmire v. Ingersoll-Rand Company (2nd Appellate District, 4th Division, 2010). A plaintiff must show with admissible evidence that he was exposed to the defendant's asbestos with enough frequency and regularity to be a substantial factor in causing his disease; a party cannot create a triable issue with a declaration that contradicts his earlier discovery responses without explanation, and mere possibility of exposure is insufficient.
• Short v. Sequoia Ventures, Inc. (1st Appellate District, 3rd Division, 2009). A plaintiff claiming negligent design or construction of a complex facility generally must offer expert evidence of the standard of care and the defendant's deviation from it, and a declaration that does not address the standard of care does not suffice.
• Kinsman v. Unocal Corporation (2005). A landowner that hires an independent contractor may be liable to the contractor's employee, even without retained control, if it knew or should have known of a concealed preexisting hazard, the contractor did not know and could not reasonably discover it, and the landowner failed to warn.
• Kinsman v. Unocal Corp. (1st Appellate District, 3rd Division, 2003). A premises owner is not liable to an independent contractor's employee for a dangerous condition created by a contractor unless the owner controlled the condition and exercised that control in a way that affirmatively contributed to the employee's injury. This limit applies whether the condition was created by the plaintiff's employer or another contractor, and does not require proof that the contractor was negligent or that the employer carried workers' compensation insurance.
• Ashdown v. Ameron International Corp. (1st Appellate District, 3rd Division, 2000). A latent asbestos-disease claim accrues, for deciding whether the 1982 amendment to Labor Code section 3602 applies, when the employee was diagnosed or discovered the disease, not at first exposure. The pre-1982 dual capacity exception therefore did not apply, and the fraudulent concealment exception requires the employer's actual knowledge of the injury.
• General Dynamics Corp. v. Wcab (2nd Appellate District, 4th Division, 1999). Res judicata does not bar a workers' compensation claim for a different injury, and a prior compromise and release bars a later asbestos claim only if the asbestos injury existed when it was settled. The record here lacked the medical evidence needed to decide that.
• Sparks v. Owens-Illinois, Inc. (1st Appellate District, 2nd Division, 1995). A product such as asbestos insulation that releases toxic dust in its ordinary use can be judged under the consumer expectation test without proof of a safer alternative design. A defendant claiming that other manufacturers or the plaintiff's employer share fault must prove it, and a defendant that did not try to prove it at trial waives the point.
• Smith v. ACandS, Inc. (1st Appellate District, 1st Division, 1994). A plaintiff must prove the defendant's asbestos products or activities were present at his work site, and speculation will not do. A landowner is not vicariously liable under the peculiar risk doctrine for one contractor's negligence that injures employees of other hired contractors.
• Hughes v. Western MacArthur Co. (1st Appellate District, 4th Division, 1987). A plaintiff must plead facts showing the defendant is a successor to the corporation that injured her. But a plaintiff who does not allege an employment relationship need not plead the dual capacity exception to workers' compensation exclusivity, because a complaint cannot be attacked by matters in the answer.
• General Foundry Service v. Workers'comp. Appeals BD. (1986). For an employee with a progressive occupational disease, the Board may tentatively rate permanent disability, order advances, and reserve jurisdiction for a final rating until the condition is permanent and stationary or the disability is total. Vocational rehabilitation should be considered before the final permanent disability rating, rather than applying the odd lot doctrine.
• JT Thorp, Inc. v. Workers'comp. Appeals BD. (3rd Appellate District, 1984). An employee with an occupational disease such as asbestosis may claim and receive workers' compensation for medical treatment before the statutory 'date of injury' (onset of disability), and such an award does not trigger the five-year limit on later awards for disability or further medical care. The board need not 'defer' a disability finding; a finding of no disability suffices.
• Indus. Indemnity Co. v. Worker's Comp. App. BD. (2nd Appellate District, 3rd Division, 1983). Absent substantial medical evidence that an earlier period of employment was the exclusively hazardous exposure, Labor Code section 5500.5 requires the board to determine liability by the applicant's last date of exposure to asbestos, and it may not postpone that finding indefinitely.
• Scott Co. v. Workers'comp. Appeals BD. (1st Appellate District, 3rd Division, 1983). Labor Code section 5500.5 does not impose liability on a last-exposure employer unless the exposure was a contributing (injurious) cause of the disease; the causation requirement of the workers' compensation statutes remains. The board's finding of the last injurious exposure date was supported by substantial evidence.
• Baptist v. Workers'comp. Appeals BD. (1st Appellate District, 1st Division, 1982). An expert medical opinion that rests on speculation or on a study with fundamental unresolved caveats is not substantial evidence supporting a Board decision. The record as a whole, read with the rule of liberal construction in favor of the employee, supported a finding that the death was industrially related.
• Johns-Manville Products Corp. v. Superior Court (1980). Workers' compensation is the exclusive remedy for an employee's initial injury, including injury from an employer's knowing failure to make the workplace safe. An employee may still sue at law for aggravation of the disease caused by the employer's fraudulent concealment of the condition and its work-related cause.

Connecticut

• Dusto v. Rogers Corporation (2023). To avoid workers' compensation exclusivity, a plaintiff need only show a genuine issue of material fact as to whether the employer subjectively believed its conduct was substantially certain to injure employees, judged under the Lucenti factors with the evidence viewed favorably to the plaintiff. Under Wisconsin law, claims against an administratively dissolved corporation must be brought within two years of the published notice of dissolution, and that notice may be published by the corporation's insurers acting as its agents.
• Estate OF Rock v. University of Connecticut (2016). An estate is not a legal entity and is not a "legal representative" under General Statutes § 31-294c, so it cannot bring a claim for any form of workers' compensation benefits under the act.
• Deschenes v. Transco, Inc. (2008). Permanent partial disability benefits may be apportioned or proportionally reduced when the employer proves that a disability results from two concurrently developing disease processes, one occupational and one not, and that the claimant's occupation had no influence on the development of the nonoccupational disease.

Delaware

• Estate of Anderson v. American Seaboard Exteriors (2022). Under the last injurious exposure rule, the claimant bears the burden of proving the employer injuriously exposed the employee to a disease-causing substance, and the Board may choose between conflicting expert opinions. Prior deposition testimony from asbestos cases can be admissible under Rule 804(b)(1), but excluding it is harmless where it does not show the claimant's own exposure.
• Weddle v. BP Amoco Chemical Company (2020). Under 19 Del. C. § 2350(f), a claimant whose position before the Board was affirmed on appeal may receive a reasonable fee, determined using the Cox factors. The court may reduce requested hourly rates that are not shown to match rates customarily charged locally.
• Weddle v. BP Amoco Chemical Company (2019). Delaware treats each asbestos-related disease as a separate accident, so a workers' compensation settlement of an earlier disease cannot waive compensation for a different disease that had not yet manifested; such a waiver is void.
• Tetteh v. Alcatel-Lucent USA, Inc. (2016). Under Georgia law and Restatement (Second) of Torts § 324A, a parent corporation that gives its subsidiary safety recommendations and guidance has not assumed the subsidiary's duty to protect the subsidiary's employees. The plaintiff also failed to satisfy any of the § 324A(a), (b) or (c) requirements.
• RT Vanderbilt Co. Inc. v. Galliher (2014). A trial court must instruct the jury on the substance of the governing law, here the employer's duty of care under Ohio law, when the defendant blames the employer. A new trial is required where an expert's inadmissible hearsay about the defendant's lying and bribery is not cured.
• Martinez v. EI DuPont De Nemours and Co. (2012). A parent corporation cannot be sued for its subsidiary's workplace conduct without specific pleaded facts of its own tortious acts. An absent foreign subsidiary that employed the worker and owned the plant is an indispensable party under Rule 19. Delaware forum non conveniens dismissal was warranted where the defendant was wrongly named in place of the foreign employer.
• Rhodes v. Diamond State Port Corporation (2010). The Board may credit one expert over another, and its finding that the claimant did not prove asbestos exposure or asbestos causation was supported by substantial evidence. The last injurious exposure rule does not apply where injurious exposure during the employment was not proved.
• Riedel v. Ici Americas Inc. (2009). Under the Restatement (Second) of Torts, an employer owes no duty to an employee's spouse absent a legally significant special relationship for a nonfeasance claim, and a party cannot argue on appeal a misfeasance theory not fairly presented to the trial court. The court declined to adopt the Restatement (Third) of Torts duty provisions.
• Nutt v. AC & S., Inc. (1983). Under Delaware's workmen's compensation exclusivity, an employer's fraud or concealment before the injury is manifested is not separately actionable, and a wife's consortium claim against the employer is derivative and barred too. Wives' mental anguish claims for witnessing a spouse's illness or fearing future asbestos disease, without a traumatic event or physical manifestation, are not cognizable, and fraud must be pleaded with particularity.

District of Columbia

• Washington Hospital Center v. District of Columbia Department of Employment Services (2004). The 30-day notice period under the D.C. Compensation Act begins when the employee is aware, or with reasonable diligence should have been aware, of a relationship between the injury and the employment; a mere possibility of a connection does not trigger it. The agency's finding of timely notice was upheld because substantial evidence supported it.
• Fearson v. Johns-Manville Sales Corp. (1981). A claim for lung cancer accrues when the cancer is diagnosed, not when earlier, separate asbestosis was diagnosed. A voluntary compensation settlement never approved by a deputy commissioner, judge or board is not an "award in a compensation order" that assigns the claimant's third-party rights to the employer under § 33(b).

Florida

• Bechtel Corporation v. Batchelor (3rd District, 2018). Premises liability requires control of the premises amounting to the ability to control access or exclude others, and a contractor's size, service contracts and insurance terms did not support an inference of such control. An adverse-inference instruction is unavailable as a discovery sanction without a prior court order that was violated.
• Wood v. Harry Harmon Insulation (1st District, 1987). An exposure is 'injurious' under the last injurious exposure rule if, independent of other causes, it could over extended time lead to the disease; the claimant need not prove it actually caused the disease. The 350-week limit on death benefits for occupational disease does not unconstitutionally deny access to courts.
• Keene Corp. v. Bahl (1st District, 1985). Under Florida's occupational disease statute, the employer in whose employment the worker was last injuriously exposed is solely liable, and the 350-week limit after last exposure applies only to death claims, not disability claims.