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

• Rando v. Anco Insulations, Inc. (1st Circuit, 2009). A lost or destroyed written contract containing an indemnity agreement may be proven by secondary evidence under Civil Code art. 1832 and Evidence Code art. 1004, but the party claiming indemnity must still produce evidence of sufficient quality to show the contract existed and what it said.
• Rando v. Anco Insulations, Inc. (1st Circuit, 2008). The 1952 version of the Louisiana workers' compensation statute did not cover mesothelioma, so exclusivity did not bar a tort suit against the employer. The peremption exception for those in possession or control of an improvement applies to a contractor that controlled the construction, not just to owners, lessors and tenants.
• Spillman v. Anco Insulations, Inc. (1st Circuit, 2008). A cause of action for a long-latency occupational disease accrues once there has been a significant tortious exposure, not at diagnosis. Under this circuit's precedent, mesothelioma was not covered by workers' compensation before the 1975 amendment, so the employer's immunity defense, on which the employer bears the burden, failed for a claim that accrued before 1952.
• Graves v. Riverwood International Corp. (2nd Circuit, 2007). A worker's tort claim against his employer vests when significant asbestos exposures occur. Exposures before Louisiana's 1952 occupational disease coverage therefore left the claim outside the later workers' compensation scheme. A JNOV or new trial is denied where reasonable minds could differ and the verdict is supportable by a fair interpretation of the evidence.
• Terrance v. Dow Chemical Company (1st Circuit, 2007). Mesothelioma was not a compensable occupational disease under the pre-1975 Louisiana workers' compensation statute, so the tort claim against a premises owner was not barred. A defendant seeking a credit for a settling party's fault must prove that party's fault at trial; settlement documents are not admissible to prove it.
• Chaisson v. Avondale Industries, Inc. (4th Circuit, 2006). A contractor that knew its job site contained asbestos and knew of the 1972 OSHA standards owed a fact-specific duty to protect an employee's household member from exposure to asbestos carried home on work clothes. The court stated this was not a categorical duty rule.
• Thomas v. AP Green Industries, Inc. (4th Circuit, 2006). A premises owner can be directly liable for its own negligence toward a contractor's employee even if the independent contractor defense bars vicarious liability, and the substantial contributing factor test for causation applies to premises owners as well as product defendants.
• Adams v. Asbestos Corp. Ltd. (2nd Circuit, 2005). Under the 1952 version of La. R.S. 23:1031.1, asbestos is a compound of oxygen and of metals other than lead, so a disease resulting from contact with it is a covered occupational disease and workers' compensation is the exclusive remedy.
• 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.
• 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.
• Alexander v. Thiokol Corp. (3rd Circuit, 2004). Where the workers' compensation act did not cover an occupational disease or asbestos when the employee was exposed, the employee may sue the employer in tort, and the law in effect at the time of exposure governs. Pre-1952 asbestos exposure therefore supports a negligence claim against the employer.
• Graves v. Riverwood Intern. Corp. (2nd Circuit, 2004). A contract benefiting a third party must clearly stipulate that benefit, and a stipulation pour autrui is never presumed. A parent corporation may be liable for undertaking a duty of safety owed by its subsidiary, and under Louisiana fact pleading the petition's allegations of an assumed duty were sufficient.
• Ewing v. Armstrong World Industries, Inc. (3rd Circuit, 2003). Since the 1976 amendment to La.R.S. 23:1032, workers' compensation is the exclusive remedy against executive officers, so survivors' loss of consortium claims arising after 1976 are barred. The 1999 reenactment of La.Civ.Code art. 2315 did not retroactively apply the 1982 loss of consortium amendment.
• Landry v. Avondale Industries, Inc. (2003). A loss of consortium claim accrues only when the injured person's condition deteriorates enough that the family is actually deprived of consortium, but applying the 1982 amendment to art. 2315 to pre-1982 conduct is an impermissible retroactive application of a substantive law. Because the claim arose after 1975-1976, employers and executive officers are also immune under La. R.S. 23:1032.
• Landry v. Avondale Industries, Inc. (4th Circuit, 2003). For a wrongful death claim arising from a long-latency occupational disease, the "events" in Act 431 § 4 mean the incidents of exposure, so the Comparative Fault Act does not apply where the exposure occurred before its effective date.
• Hoerner v. Anco Insulations, Inc. (4th Circuit, 2002). In Louisiana asbestos cases a defendant is liable only if the plaintiff's exposure to its products was a substantial factor, shown by frequent and regular exposure. An executive officer is liable only with a personal duty to provide a safe workplace, including some control over purchasing equipment and supplies.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). A product is unreasonably dangerous per se if its danger-in-fact outweighs its utility, regardless of the manufacturer's knowledge. Working near contractors who cut the product is enough evidence of exposure to support liability.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). A wrongful death claim arises at death, so the post-1976 workers' compensation immunity barred it against Avondale's executive officers. A survival action in a long-latency disease case is governed by the law in effect when the worker was exposed, so exposure beginning in 1964 left it open.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). In a long-latency asbestos case, a cause of action accrues, for choosing between pre- and post-1976 law, when exposures were significant enough to start a disease process that progresses independently of further exposure. Under pre-comparative-fault Louisiana law, a settling or bankrupt solidary obligor found liable counts as a virile (pro rata) share, and co-employee safety officers are liable only for a personal breach of a delegated duty.
• Austin v. Abney Mills, Inc. (2nd Circuit, 2001). A tort cause of action for a long-latency asbestos disease does not accrue on mere exposure, because damage is required; under either the manifestation or contraction theory Hogue showed no injury before mesothelioma was covered by workers' compensation in 1975, so compensation was his exclusive remedy for negligence claims. Intentional tort claims not raised in the summary judgment motion cannot be dismissed on it.
• Emery v. Owens-Corporation (1st Circuit, 2001). Where the substantial injury-producing asbestos exposures occurred before Louisiana's comparative fault law took effect, pre-comparative-fault virile share principles apply rather than jury-assigned percentages. Under the pre-1976 statutes, a premises owner was not a statutory employer entitled to tort immunity, and the statutory employer question is for the court rather than the jury.
• Matrana v. Avondale Indus., Inc. (4th Circuit, 2001). A cause of action for occupational diseases such as asbestosis and mesothelioma arises when the injured party is exposed to the toxic substance, and asbestos disease is not covered by the workers' compensation scheme as a listed occupational disease.
• Brunet v. Avondale Industries, Inc. (5th Circuit, 2000). Asbestos is an oxygen compound and a metal compound within the pre-1976 list of occupational disease agents in La. R.S. 23:1031.1. An employee's asbestos-caused lung cancer is therefore covered by workers' compensation, which is the exclusive remedy against the employer.
• 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.
• Gauthe v. Asbestos Corp. Ltd. (5th Circuit, 1998). A wrongful death claim is governed by the law in effect when it accrued at the decedent's death, not at the time of exposure. Under either the Louisiana Workers' Compensation Act or the LHWCA, an employer is liable in tort only for an intentional tort, which requires intent to cause the harm.
• 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.
• Gauthe v. Asbestos Corp. Ltd. (5th Circuit, 1997). A wrongful death action arises only when the victim dies, so the law at the time of death governs. Because the death came after the 1976 amendment to La. R.S. 23:1032, survivors cannot sue executive officers for negligence, only for intentional acts.
• Gautreaux v. Rheem Mfg. Co. (4th Circuit, 1996). Under former La. R.S. 23:1031.1(A)(1)(d), it was not established as a matter of law that asbestos is an "oxygen compound", so the employer could not show on an exception of no cause of action that workers' compensation was the exclusive remedy for the lung cancer death.
• Johnson v. Ashland Oil, Inc. (1st Circuit, 1996). Under the pre-1975 Louisiana workers' compensation statute, an employee's tort claim for a disease not listed in the statute and caused by a substance not listed (here mesothelioma from asbestos) is not barred by workers' compensation exclusivity.
• Thomas v. Armstrong World Industries (1st Circuit, 1996). Under the pre-1975 occupational disease statute, which listed asbestosis but not lung cancer or asbestos as a substance, the petition's allegation that lung cancer was caused by asbestos rather than asbestosis stated a cause of action outside workers' compensation exclusivity. Whether the cancer was independent or a progression of asbestosis could not be decided from the pleadings alone.
• Cole v. Celotex Corp. (1992). In long-latency occupational disease cases, pre-Act law applies when significant tortious exposures occurred before the comparative fault act took effect, and contribution among defendants is governed by that same law. Coverage is triggered by exposure during the policy period, and a plaintiff may recover under each triggered annual policy.
• Bergeron v. Celotex Corp. (1991). Under Louisiana law a wrongful death action arises at the decedent's death, so the post-1976 workers' compensation exclusivity statute barred tort claims against the employer even though the exposure came earlier. A post-prescription amendment adding a new plaintiff does not relate back where the defendant had no notice of that plaintiff and no duty to look for her.
• White v. Johns-Manville Sales Corp. (5th Circuit, 1982). Under Louisiana's occupational disease compensation provision, the compensation rate is fixed at the date the disease manifests as disability, not the date of last injurious exposure. A claimant who shows he falls in the 'odd-lot' category shifts to the employer the burden of showing available work.

Maine

• Coffin v. Ametek, Inc. (2021). Under FELA's low threshold, foreseeability turns on actual or constructive notice and is ordinarily a jury question; a railroad's general knowledge of asbestos hazards and disputed evidence of escaping dust prevent summary judgment on foreseeability.
• In re All Maine Asbestos Litigation (1986). Following First Circuit precedent, a vessel-owner claim under LHWCA section 905(b) reaches only maritime torts, and asbestos injuries to shipyard workers are not maritime torts. Claims against the United States under the FTCA are barred by the discretionary function exception where the government made policy-based safety decisions, but not where facts are disputed about whether Navy personnel had discretion.
• Austin v. Johns-Manville Sales Corp. (1981). Under the LHWCA's exclusive liability provision, a compensation-paying employer is immune from third-party contribution or indemnity claims unless it specifically intended to injure the employee. Allegations of reckless misconduct, fraud about workplace hazards, or negligent medical care furnished under the Act do not overcome that immunity.

Maryland

• In re RailWORKS Corporation (2020). Under the Fourth Circuit's conduct test, a bankruptcy claim arises upon exposure, not manifestation, so an asbestos claim based on prepetition exposure is a dischargeable claim. A debtor that used reasonably diligent efforts to identify creditors may give unknown creditors publication notice of the bar date, which satisfies due process.
• Crowe v. CSX Transportation, Inc. (2019). A railroad employee engaged in maritime employment is covered by the LHWCA as amended in 1972, and because a latent occupational disease injury occurs at manifestation, applying the Amendments to a post-1972 diagnosis is not retroactive; the LHWCA remedy is exclusive and bars a FELA claim.
• Lloyd E. Mitchell, Inc. v. Rossello (2018). Denial of summary judgment is reviewed only for abuse of discretion, and circumstantial evidence can suffice to identify a defendant as the contractor whose asbestos-containing product exposed a bystander. A trial court may exclude a witness as a sanction when a party violates the scheduling order and fails to educate its corporate designee under Md. Rule 2-412(d).
• Arbogast v. Georgia-Pacific LLC (2017). Under the LHWCA's exclusivity provision, an employer covered by the Act cannot be a joint tortfeasor, so third parties cannot bring contribution claims against it. Liability is not apportioned between a worker's covered and non-covered employment with the same employer.
• Burns v. Bechtel Corp. (2013). Under CJ § 5-108, the exception for those in actual possession and control of the property requires a proprietary interest, not just control of a construction project. Asbestos dust shed during installation is not excluded from 'improvements' protected by repose; the (d)(2)(ii) exception applies only to manufacturers and suppliers.
• Wajer v. Baltimore Gas and Electric Company (2004). A premises owner that hires independent contractors is not liable to a contractor's employee under the retained-control rule (§ 414) or the safe-workplace rule (§ 343) unless it controlled the operative details of the very work that caused the injury; asbestos products the contractors brought in were their own work product, not a preexisting latent condition.
• Smith v. Bethlehem Steel Corp. (1985). The second paragraph of § 58 tolls limitations only during the two months after a compensation award when the employer alone may sue a third party, not from accrual until an award. Under Pierce, a claim for a latent cancer medically separate and distinct from asbestosis accrues on discovery of the cancer, even if the worker has already sued in tort for asbestosis.

Massachusetts

• Stearns v. Metropolitan Life Insurance Co. (2018). The Massachusetts six-year statute of repose for improvements to real property does not bar asbestos claims against a contractor like GE, given the long latency of asbestos disease, known risks and GE's continuing control of the site. A premises owner is not liable to an independent contractor's employee for asbestos hazards the contractor's own work created, or for a contractor's negligence where the owner kept no real control over the work.
• Letteney's (dependent's) Case (1999). Only employment covered by the Massachusetts workers' compensation act's definition of employee (G. L. c. 152, § 1 (4)) may be used to determine the average weekly wage under § 35C for an employee who becomes eligible five or more years after the injury.

Michigan

• Faulkner Const. v. Silicosis Fund (1997). An employer seeking reimbursement from the silicosis and dust disease fund for a dust disease other than silicosis, phthisis or pneumoconiosis bears the burden of proving the disease is so common and widespread as to threaten the industry.
• Beaudrie v. Anchor Packing Co. (1994). Under Eddington, a workers' compensation carrier may seek reimbursement from the entire third-party recovery, whatever the type of damages, where the recipient is a compensation beneficiary; recoveries by non-beneficiaries are not subject to the lien.

Minnesota

• Anderson v. AH Bennett Company (2025). Under Minnesota's workers' compensation law, the exclusivity provision applies if the employee was last exposed to the occupational disease hazard in a significant way while employed by the defendant, even if the plaintiff only pursues exposures from a period when he was not employed there. Whether that last significant exposure occurred is a fact question.
• Duffy v. American Standard, Inc. (2006). Under Minn. Stat. § 176.061, an employee's suit against a third party is barred only if the employer and third party were engaged in a common enterprise: the same project, employees working together in common activity, and the same or similar hazards. A long-standing business relationship alone does not establish this.
• Conwed Corporation v. Union Carbide Corporation (2004). Under Minnesota law, an employer has no obligation to contribute to a third-party tortfeasor's Naig settlement with an injured employee, because a Naig settlement covers only damages for which the employer is not liable and the employer's fault does not affect their allocation.