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.

Louisiana

• Legendre v. Louisiana Ins. Guaranty Association (2024). Avondale cannot use the Boyle or Yearsley government contractor defenses against failure-to-warn and failure-to-implement-safety claims. Intentional tort and fraud claims fail without evidence that injury was substantially certain or of fraudulent intent.
• Nelson v. Texaco, Inc. (4th Circuit, 2024). An employer's answer asserting workers' compensation exclusivity and statutory employer status sufficiently pleads the borrowed employee defense, even without using the term "borrowed employee," so the defense is not waived.
• 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.
• Barker v. Anco Insulations, Inc. (5th Circuit, 2023). Under Canter v. Koehring, an executive officer is personally liable only if the employer delegated a personal duty of care to him and he breached it; general administrative responsibility is not enough.
• 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.
• Cadiere v. Huntington Ingalls, Inc. (2023). Leave to amend should be freely given absent a substantial reason such as undue delay, bad faith, prejudice or futility. Judicial estoppel did not bar the amendment because the plaintiff took no inconsistent position and had not persuaded the court to accept an earlier one.
• Crossland v. Huntington Ingalls, Inc. (2023). Strict liability under Louisiana Civil Code art. 2317 requires that the defendant have custody or control of the dangerous thing. Under Louisiana negligence law, fact disputes over a husband's workplace exposure and the employer's knowledge preclude summary judgment on a take-home claim. Experts may rely on fact-witness testimony about exposure, and challenges to that testimony go to weight.
• Ragusa v. Louisiana Guaranty Insurance Association (2023). A premises owner is not strictly or directly liable for asbestos exposure from equipment owned by a contractor's employer absent evidence that it required the asbestos use. The independent contractor defense is an affirmative defense on which the owner bears the burden, so failure to produce the contract defeated summary judgment on vicarious liability.
• Ragusa v. Louisiana Guaranty Insurance Association (2023). The LHWCA applies as it existed when the disease manifested, and its exclusivity provision preempts a covered worker's state negligence and intentional tort claims against his employer. Awareness of asbestos risk does not show that mesothelioma was substantially certain to result.
• Robichaux v. Huntington Ingalls Inc. (2023). Under Barrosse, the LHWCA does not preempt state tort claims by maritime workers injured in the twilight zone in Louisiana who neither sought nor obtained LHWCA compensation and whose injuries were not covered by the relevant version of the state workers' compensation act.
• Walker v. Anco Insulations, Inc. (4th Circuit, 2023). Under Louisiana's pre-comparative-fault law, joint tortfeasors are solidarily liable. Each is assigned a virile share, including non-parties found liable at trial, with credit only for parties who settled. Strict liability for things in one's custody depends on custody and control, not ownership.
• Adams v. Eagle, Inc. (2022). The Boyle defense to a failure-to-warn claim requires government-approved warnings or a reasonably precise government specification, and a minimum safety standard like the Walsh-Healey Act is not one. Yearsley immunity does not protect a contractor from claims of its own separate negligence in carrying out a government contract.
• 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.
• Cortez v. Lamorak Insurance Company (2022). Under Louisiana law, an intentional tort requires proof that the injury was substantially certain to follow, and knowledge of asbestos hazards shows only negligence. Veil-piercing, including the single business enterprise theory, requires more than affiliation or control, such as fraud or other wrongdoing.
• Cortez v. Lamorak Insurance Company (2022). Under Louisiana law a duty to household members for take-home exposure can exist before 1972 without an OSHA rule, and Article 2317 custody can be shared. A seller is a professional vendor, liable like a manufacturer, only if it held the product out as its own and had sufficient size and volume of sales.
• Cortez v. Lamorak Insurance Company (2022). The LHWCA preempts state-law tort claims by a covered shipyard worker against his employer for his own employment exposure, but it does not preempt claims against the same company as a non-employer for take-home exposure that occurred before he worked there. Intentional-tort claims fail where there is no evidence that the disease was inevitable or substantially certain to result.
• Morales v. Anco Insulations Inc. (2022). The Longshore and Harbor Workers' Compensation Act preempts state-law tort claims against a covered employer, its executive officers and its insurers for an employee's occupational asbestos disease, because allowing them would undermine the Act's compensation-for-immunity exchange.
• Ports America Gulfport, Inc. v. Johnson (2022). The Anti-Injunction Act bars a federal court from enjoining state proceedings on an LHWCA section 905(a) preemption claim, because that provision is not an expressly authorized exception. Younger abstention likely bars enjoining enforcement of a state judgment, and litigation costs are not irreparable harm.
• Reulet v. Lamorak Ins. Co. (2022). Plaintiffs need only show a reasonable jury could find it more likely than not that the decedent inhaled the defendant's asbestos fibers, even from slight exposures; credibility determinations are not made at summary judgment. A purchase agreement expressly assuming the predecessor's litigation liabilities can make the buyer a successor to those liabilities.
• Sentilles v. Huntington Ingalls Inc. (2022). Under the Fifth Circuit's manifestation rule, the LHWCA version in effect when the disease manifested applies. A shipyard employer is therefore immune from state-law tort claims for covered workers' occupational exposure, including take-home exposure from a coworker brother employed there at the same time.
• Sentilles v. Huntington Ingalls Inc. (2022). Under the manifestation rule, the post-1972 LHWCA applies to a mesothelioma diagnosed in 2020. A shipyard worker's state-law tort claims against his employer, including take-home exposure from a coworker brother employed at the same time, are preempted by the LHWCA's exclusivity provision.
• Stansbury v. McCARTY Corporation (2022). Under Louisiana's Canter test, a non-employee third party may sue a corporation's executive officers for negligence, and the relevant delegation is from the corporate defendant to its officers; the complaint must plead facts, not conclusions, showing delegation, personal fault and a personal duty to the plaintiff.
• 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.
• Deaville v. Exxon Mobil Corp. (2021). A removing party claiming improper joinder bears a heavy burden, and a court's summary inquiry may not weigh evidence or resolve factual disputes; those are resolved in favor of the plaintiff. A conflict between the plaintiff's testimony and a Social Security statement about employment dates before September 1, 1975 therefore defeated the improper joinder claim.
• Sentilles v. Huntington Ingalls Inc. (2021). Under Louisiana's significant tortious exposure theory, a long-latency disease claim is a single cause of action. If it accrued before September 1, 1975, the Louisiana Workers' Compensation Act does not bar it, even if exposure continued after that date.
• Williams v. Lockheed Martin Corporation (2021). A defendant may remove under the federal officer statute based on the full state-court record if it raises a colorable government contractor defense. Mesothelioma claims accruing after the 1975 Louisiana workers' compensation amendment are barred by the exclusive remedy provision, and plaintiffs needed evidence of significant asbestos exposure before that date to avoid the bar.
• Lopez v. McDERMOTT, Inc (2020). Under Louisiana law, a premises owner is not liable, directly or vicariously, for asbestos hazards inherent in an independent contractor's work absent operational control or authorization of unsafe practices. Strict liability under article 2317 also fails where the contractor, not the owner, had custody of the injurious material.
• Michel v. Ford Motor Company (2020). Where a scheduling order deadline has passed, Rule 16(b) good cause must be shown before Rule 15(a) applies. Newly discovered information acquired through discovery can be good cause, and an amendment is not futile if it alleges that the proposed defendant had custody (garde) of the asbestos-containing products.
• Craft v. Ports America Gulfport, Inc. (4th Circuit, 2019). A plaintiff must show by a preponderance of the evidence that future medical expenses will be medically necessary, and need not prove their exact value. An employer's duty to protect workers from asbestos depends on whether it knew or should have known of the danger during the employment.
• 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).
• Michel v. Ford Motor Co. (2019). A party seeking to amend after the scheduling-order deadline must show good cause under Rule 16(b), and then Rule 15(a) leave is freely given. Prejudice to the opposing party can be cured by a continuance, and futility is judged by the Rule 12(b)(6) standard.
• Savoie v. Huntington Ingalls (2019). Wrongful death claims by the survivors of a shipyard worker covered by the LHWCA are barred by the Act's exclusivity provisions, and the court did not need to decide whether an intentional tort exception exists because the intentional tort claims had already been dismissed.
• 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.
• Fagot v. Dow Chemical Company (1st Circuit, 2018). An indemnity clause covering "all claims" arising from the contractor's performance, excepting only the indemnitee's sole negligence, is unambiguous and expresses indemnity for the indemnitee's own partial negligence in unequivocal terms. Extrinsic evidence cannot be used to vary an unambiguous contract.
• Fletcher v. Anco Insulations, Inc. (4th Circuit, 2017). Whether contract work is part of a principal's trade, business, or occupation, making the worker a statutory employee under La. R.S. 23:1061 (1989 version), is decided case by case under the eight Kirkland factors and reviewed for manifest error.
• Sheppard v. Liberty Mutual Insurance Company (2017). Under Louisiana law, a workers' compensation insurer that inspects its insured's workplace owes no duty to the insured's employees for workplace safety where the policy language permits but does not require inspections and disclaims any undertaking for safety.
• Zuniga v. Masse Contracting, Inc. (2017). Under Louisiana law, workers' compensation is the exclusive remedy for workplace injuries unless the employer acted intentionally. Allegations that the employer knowingly placed workers in dangerous conditions do not show the injury was substantially certain to follow, so the intentional-act exception does not apply.
• Laurent v. New Orleans City (2015). The law in effect at the time of death controls a wrongful death claim, and at the time of the 2013 death the Louisiana Workers' Compensation Act immunized employers from tort actions, including wrongful death actions, absent an intentional tort.
• Genusa v. Asbestos Corp. Ltd. (2014). A third-party claim against unions that depends on interpreting collective bargaining agreements is completely preempted by LMRA Section 301 and supports removal. Claims that are not within original or supplemental jurisdiction must be severed and remanded, and a court may decline supplemental jurisdiction over state-law tort claims.
• Luna v. AW Chesterton Company (1st Circuit, 2014). Prescription on an asbestos survival claim began when mesothelioma was diagnosed, and a remaining tortfeasor must prove the other defendants' products were a substantial cause of the injury to obtain a virile share reduction.
• Sarradet v. the Dow Chemical Company (2014). A removing party must show improper joinder by clear and convincing evidence that there is no reasonable basis to predict recovery against the in-state defendants; the court may pierce the pleadings to make that determination, and corporate officers are personally liable only if they breached a personal duty under the Canter v. Koehring criteria.
• Smith v. Union Carbide Corp. (2014). Under Louisiana law, a premises owner owes a direct duty of reasonable care to a contractor's employees, and a fact issue on breach can exist without proof the owner handled the asbestos. Strict liability under Article 2317 failed because the owners lacked custody of the asbestos during installation and the dusty construction conditions were a temporary hazard, not a defect.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2014). Under Louisiana law, an intentional tort requires proof that the harm was substantially certain to follow from the conduct, and mere knowledge of an asbestos risk is negligence, not intent. Louisiana recognizes no substantive tort of civil conspiracy.
• Watts v. Georgia-Pacific Corp. (1st Circuit, 2013). Prescription interrupted against a timely sued solidary obligor (here the premises owner Dow, whose liability was proven) is effective against all solidary obligors, and under pre-comparative-fault law a proven co-obligor's virile share reduces the recoverable award. Awards of general damages are not disturbed absent an abuse of the jury's great discretion.
• Bougere v. Northrop Grumman Systems Corp. (5th Circuit, 2012). A wrongful death claim does not arise until the victim dies, so the 1976 amendment to La. R.S. 23:1032, which gives executive officers tort immunity, applies when death occurs after the amendment even if the asbestos exposure came before it. Rando, which allowed a worker's own pre-1976 mesothelioma tort claim, does not change this for wrongful death claims.
• Bozeman v. Union Carbide Corporation (2nd Circuit, 2011). Rando v. Anco Insulations, which held that mesothelioma was not a covered occupational disease under the pre-1975 Workers' Compensation Act and so not subject to its exclusive remedy, applies retroactively. A partial judgment not designated final remains open to revision at any time.
• Falgoust v. Avondale Industries, Inc. (4th Circuit, 2010). Where contract documents excluded by the trial court, together with later-found copies, may establish the disputed defense and indemnity agreement, a genuine issue of material fact may exist, so summary judgment is vacated and the authenticity question is sent back for a contradictory hearing.
• Bourque v. Anco Insulations, Inc. (3rd Circuit, 2009). When a longshoreman's alleged asbestos exposure occurred only aboard a vessel over navigable waters, the LHWCA is the exclusive remedy and state remedies are precluded, because the case falls outside the concurrent state-federal 'twilight zone'.
• DiBenedetto v. Noble Drilling Company (4th Circuit, 2009). A plaintiff with mesothelioma whose first significant exposure predated 1975 (when Louisiana's compensation act began covering the disease) is not limited to LHWCA benefits and may bring a state tort suit against employers and their executive officers. A plaintiff may also dismiss defendants with prejudice, and article 1671 does not give the trial court discretion to refuse.
• Rando v. Anco Insulations Inc. (2009). Mesothelioma from asbestos contact was not a covered occupational disease under the 1952 version of La.Rev.Stat. 23:1031.1, so the Workers' Compensation Act's exclusive remedy provision did not bar a tort suit against the employer for it.