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.

Georgia

• Sinyard v. Georgia Power Company (2022). A premises owner that contracts to build for co-owners is a statutory employer immune from tort suit for that construction work. Otherwise, whether a premises owner had superior knowledge of the specific asbestos hazard, and whether it relinquished possession and control to the worker's contractor, are jury questions unless the worker's own employer had equal knowledge.
• Georgia Power Company v. Campbell (2021). An owner owes no duty to a contractor's employees only if it relinquished possession and did not control the work, and contract terms showing retained control raise fact questions. A trial court must act as gatekeeper and rule on a challenge to an expert's qualifications; an appellate court will not decide an argument the trial court did not address.
• McKENNEY'S Inc. v. Sinyard (2019). A superior court must uphold a Workers' Compensation Board finding supported by any competent evidence unless the Board clearly relied on an erroneous legal theory. A claimant's earlier unverified complaint can be used as an evidentiary admission, and the claimant bears the burden of proving the employer of last injurious exposure.
• 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.
• Kellogg Co. v. Pinkston (2001). An employee's damages claim against her employer for asbestos exposure arising out of employment is barred by the exclusivity provisions of the Workers' Compensation Act, so a court lacks subject matter jurisdiction over it. A default judgment on new claims also requires written notice to the defaulting party.

Illinois

• Daniels v. Venta Corp. (2nd District, 2022). An employer's directive to a worker to do work that violates a licensing statute makes the employment contract unenforceable, so the workers' compensation exclusive remedy does not bar the claim. An allegation that the employer deliberately directed the worker to remove asbestos, knowing it would injure him, pleads an intentional tort, and a landowner who knows of a dangerous condition may owe a duty to a business invitee.
• Folta v. Ferro Engineering (2015). Where an occupational disease is the type of injury within the scope of the Workers' Compensation Act and Workers' Occupational Diseases Act, the exclusive remedy provisions bar a common-law action against the employer even if the disease first appeared after the acts' time limits had expired and no benefits were available.
• Folta v. Ferro Engineering (1st District, 5th Division, 2014). An asbestos-injured employee whose workers' compensation claim was barred by the statute of repose before he learned of his injury has an injury "not compensable under the Act," so the exclusivity provisions do not bar a common-law suit against the employer.
• 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.
• Simpkins v. CSX Transp., Inc. (2012). Whether a defendant owed a duty depends on whether it contributed to a risk of harm to the plaintiff and on four factors (foreseeability, likelihood, burden, consequences), without a separate 'direct relationship' requirement. A complaint that only conclusorily alleges the defendant knew or should have known of the danger is insufficient in a fact-pleading jurisdiction.
• Tkk USA Inc. v. Safety National Casualty Corporation (2011). Under Illinois law, an insurer must pay defense costs for the whole suit if any theory is potentially covered, and a policy covering 'Employers' Liability Laws' reaches a common-law negligence claim against an employer even if the Occupational Diseases Act's exclusive-remedy provision would likely bar it.
• 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.
• Kieffer and Co., Inc. v. Industrial Com'n (2nd District, Industrial Commission Division, 1994). The Commission's findings on disputed facts stood because they were not against the manifest weight of the evidence: the denial of temporary total disability benefits was upheld, and the last employer, Kieffer, was liable for the widow's death benefits and medical costs.
• Whitney v. Industrial Com'n (4th District, Industrial Commission Division, 1992). Section 1(f) of the Workers' Occupational Diseases Act acts as a statute of repose requiring disablement within three years of last asbestos exposure, and the 1984 extension of the death-claim filing period in section 6(c) did not displace that requirement.
• 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.
• H & H Plumbing Co. v. Indus. Comm'n (5th District, 1988). The Commission's finding of asbestos exposure and an occupational disease could rest on lay testimony, circumstantial evidence and a test of a similar blanket, and was not against the manifest weight of the evidence. The employer in whose employment the worker was last exposed is liable even if earlier exposure also contributed.
• Zupan v. Industrial Com. (5th District, 1986). Under the pre-1975 Occupational Diseases Act, an ordinary disease of life is compensable as an occupational disease where the employee was exposed to the hazard at work in a greater degree and in a different manner than the public generally.

Indiana

• Myers v. Bremen Casting, Inc. (2016). Working with asbestos is not intrinsically dangerous as a matter of law, but a premises owner may be liable under the due precaution exception, and as a premises owner, unless the worker was injured by the very condition he was hired to address, which the owners failed to show. Because the owners did not designate evidence negating the claims, summary judgment was improper.
• 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.
• Psi Energy, Inc. v. Roberts (2005). A principal is not liable to an independent contractor's employee for the contractor's acts under the five exceptions to nonliability, absent negligent selection, and a landowner ordinarily owes no liability to a contractor's employees for a condition the contractor was hired to address when the landowner has no superior knowledge. A general verdict stands if the evidence supports any theory of liability that the jury was instructed on.
• 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.
• Knox v. AC & S, Inc. (1990). Indiana's occupational disease act makes compensation the exclusive remedy only against an employer for disease arising out of the employment, and an employee may still sue third parties for the same disease. A defendant that was once the employer must produce evidence that exposure to its products outside the employment could not have contributed to the disease.
• Bunker v. National Gypsum Co. (3rd District, 1981). The statute requiring asbestos disablement within three years after last exposure is unconstitutional as applied to asbestosis claimants, because the disease's long latency makes the limit a practical denial of the right to recover.

Iowa

• Beverage v. Alcoa, Inc. (2024). A land possessor's duty of reasonable care to entrants under Restatement (Third) section 51 is not modified to the limited duty owed by employers of independent contractors under Restatement (Second) section 413, and a premises-liability claim by a contractor is assessed under the unmodified land possessor-entrant duty.
• 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.
• Ganske v. Spahn & Rose Lumber Co. (1998). Where an occupational disease is covered by the workers' compensation and occupational disease statutes, those statutes are the exclusive remedy against the employer even if the worker cannot recover benefits because the disease appeared after the statutory time period.
• 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.

Kentucky

• Kentucky Employers'mutual Insurance v. Hall (2024). An ALJ has authority under KRS Chapter 342 to decide which insurer covered the employer at the date of last exposure, and an insurer need not have been a formal party to be heard. No statute or regulation sets a deadline for a motion to certify coverage, so a motion filed within 30 days of the Supreme Court's final decision was timely.
• Letcher County Board OF Education v. Hall (2023). A school employee's workers' compensation claim for asbestos-related disease, which requires no showing of fault, falls within the Department of Workers' Claims and not the Board of Claims. The Board of Claims statute on school asbestos claims applies to third parties who must prove negligence, not to employees.
• 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.
• Letcher County Board OF Education v. Hall (2022). State agencies, including school boards, are subject to the Workers' Compensation Act, so the Department of Workers' Claims, not the Claims Commission, has jurisdiction over a school employee's asbestos-related work injury claim. Unpaid benefits owed before the 2017 amendment to KRS 342.040(1) carry the new 6% interest rate.
• Schneider Electric USA, Inc. v. Williams (2021). Under Sheets v. Ford Motor Co., denial of summary judgment based on workers' compensation up-the-ladder immunity is not immediately appealable under the collateral order doctrine, because no substantial public interest is imperiled when the parties are private.
• 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.
• Ford Motor Company v. Sheets (2019). An order denying summary judgment because the defendant is not entitled to up-the-ladder immunity as a matter of law is immediately appealable, but a bare order that gives no basis for the denial cannot be reviewed, so the trial court must state its reasons.
• Letcher County Board OF Education v. Hall (2019). Where an employer asserts the statute of limitations, it bears the burden of proving the defense, and the ALJ's finding is reversible if clearly erroneous under the evidence. The statute requires only that exposure could independently cause the disease, not that it did, and asbestos tile remaining in the school until 2003 compelled a finding that the 20-year filing period had not run.
• 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.
• Letcher County Board OF Education v. Hall (2018). Under KRS 342.0011(4), an exposure is injurious if it could independently cause the disease. Where the evidence compelled a finding that asbestos exposure continued until retirement in 2003, the 20-year limit for asbestos-related disease claims was met, and the Board did not exceed its review authority in so finding.
• Durham v. Ford Motor Company (2014). A premises owner has a duty to warn independent contractors' employees of asbestos only if it knew of the danger and the contractor lacked actual or constructive knowledge, and the plaintiff bears the burden of proving that. Under Kentucky's up-the-ladder immunity, an owner is immune for work that is regular or recurrent to its business.
• McGuire v. Lorillard Tobacco Company (2014). Negligent design and negligent failure-to-warn claims were subsumed in a strict liability instruction, so separate negligence instructions were unnecessary. Workers' compensation exclusivity covers only diseases arising out of employment. An erroneous instruction on that point was harmless because no reasonable possibility existed that it affected the verdict.
• Rehm v. Ford Motor Company (2011). Evidence rulings are reviewed for abuse of discretion. The trial court properly admitted 28-year-old newspaper articles under the ancient-documents hearsay exception and let a qualified expert testify, because weaknesses in expert testimony go to weight and are tested on cross-examination. A loss of consortium claim accrues when the disease becomes manifest, not on exposure.
• Bush v. Eaton Corporation (2010). Fraudulent joinder is not shown where there is a colorable claim against the non-diverse defendant, with disputed facts and ambiguities in state law resolved for the non-removing party. Under Kentucky law, an employee can be personally liable for breach of his own duty or where he can control the employer's negligent acts.
• 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.
• 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.
• General Elec. Co. v. Cain (2007). A premises owner is immune from tort suit as a statutory "up-the-ladder" employer only if it proves, with substantial evidence, that the injured worker's job was work customary or repeated in its business that it or similar businesses would normally do with employees. A certification or uncontroverted insurer affidavit of workers' compensation coverage is prima facie proof that compensation was secured.
• 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.
• 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.

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.
• Ehlers v. Ports America Gulfport, Inc. (4th Circuit, 2024). An insurer (here LIGA) claiming a policy exclusion bears the burden of proving the exclusion was in the policies at issue, and a standard form and circumstantial evidence did not meet that burden where no actual policy containing the exclusion was produced.
• Legendre v. Louisiana Ins. Guaranty Association (2024). A joiner that assembled wallboard for a shipyard is not a manufacturer, and veil-piercing to treat a parent as its subsidiary's alter ego is an extraordinary remedy requiring more than shared officers and ownership. Fact questions on control, holding out and scale preclude summary judgment on professional vendor status, and the first-to-file rule requires substantial overlap between cases.