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.

Minnesota

• Conwed Corp. v. Union Carbide Corp. (2003). Under Minnesota law, a supplier's reliance on a purchaser to warn its employees must be reasonable, which depends on the supplier's own knowledge of the hazard, including any knowledge superior to the purchaser's. To the extent Gray v. Badger Mining says otherwise, the court predicted the Minnesota Supreme Court would not follow it.
• Crepeau BY Crepeau v. Krost Insulation Co. (1983). Liability falls on the insurer covering the employer at the time of the employee's last substantial asbestos exposure. A surviving spouse's dependency benefits are based on the daily wage at the time of the injury, and a full-time employee who deliberately limited his earnings is still treated as full-time under the statute.

Missouri

• Barnes v. Athene Annuity & Life Assurance Company (Western District, 2023). An employer asserting workers' compensation exclusivity for mesothelioma under section 287.200.4 must show it had valid insurance coverage for the employee's mesothelioma injury in effect on the date the workers' compensation claim was filed. An affidavit from someone without personal knowledge of the policy cannot authenticate it on summary judgment.
• Hegger v. Valley Farm Dairy Co. (2020). Electing to accept enhanced mesothelioma liability under section 287.200.4(3)(a) requires an affirmative act by the employer, so a now-defunct employer is not deemed to have elected it merely by having workers' compensation coverage when the employee was last exposed.
• Hegger v. Valley Farm Dairy Company (2020). An employer must take an affirmative act to elect to accept enhanced mesothelioma liability under section 287.200.4(3)(a); a now-defunct employer is not deemed to have elected it merely by having workers' compensation coverage when the employee was last exposed.
• Hegger v. Valley Farm Dairy Company (Eastern District, 4th Division, 2019). Under strict construction of Section 287.200.4(3)(a), an employer that had insured its liability at the time of the worker's last exposure elected to accept mesothelioma liability, even if it no longer existed in 2014, and it did not have to give the Division notice of an election.
• Accident Fund Insurance Company v. Casey (2018). An employer that accepts enhanced mesothelioma liability under section 287.200.4 and an insurer whose policy endorsement covers those benefits are liable for claims filed on or after January 1, 2014, regardless of the date of last exposure. The statute is not retrospective as applied, and it allows all children, not only dependents, to recover.
• New Hampshire Insurance Company v. Pennington (2018). A federal court with diversity jurisdiction may decline, under its discretion in declaratory judgment actions, to hear an insurer's coverage action when a parallel state workers' compensation proceeding between the same parties can resolve the same coverage issue, and should stay rather than dismiss it.
• State EX rel. Kcp&l Greater Missouri Operations Company v. Cook (Western District, 2011). Under the 2005 amendments and strict construction, the Missouri Workers' Compensation Law's exclusivity provisions in § 287.120 apply only to injuries by 'accident' as defined in § 287.020.2, so an occupational disease claim that is not an accident is not barred from common-law suit in circuit court.
• State EX rel. Ford Motor Company v. Nixon (Western District, 2007). Workers' compensation is the exclusive remedy for workplace injury claims, and only the Labor and Industrial Relations Commission can decide whether an injury was accidental or intentional. A co-employee is not liable at common law unless he committed an affirmative negligent act beyond the employer's duty to provide a safe workplace.
• Speck v. Union Elec. Co. (Eastern District, 2nd Division, 1987). An employer's intentional conduct falls outside workers' compensation exclusivity if the employer acts with a specific purpose to injure, which includes being substantially certain that injury will result. The compensation statute still bars claims for the initial occupational disease, but a claim for intentionally withholding health information may proceed.
• Speck v. Union Elec. Co. (1987). When a trial court dismisses a count that arises from the same transactions or occurrences as other claims and specifically designates the dismissal final for purposes of appeal under Rule 81.06, the order is appealable. The designation is reviewed only for abuse of discretion, and the 'judicial unit' test no longer applies.

Montana

• Rosling v. Associated Loggers Exchange (2019). Whether a condition is an occupational disease is decided by the claimant's lifetime of employment under the major contributing cause standard, and liability then falls on the employer, and its insurer, of last injurious exposure under a 'potentially causal' standard, even if the disease was diagnosed before that employment.
• Atchley v. Louisiana Pacific Corp. (2018). A claimant first proves an occupational disease by showing that employment significantly aggravated or contributed to it. Under the last injurious exposure rule, liability then falls on the employer or insurer at risk when the worker was last exposed to the type and kind of conditions that could have caused the disease, even if earlier exposures were larger.
• Baeth v. Liberty NW Ins. Corp. (2014). Where an occupational disease involves successive employers, the last employer is liable if the claimant's work there was of the same type and kind as the conditions that could have caused the disease. Pursuing civil suits against other parties for the same exposure does not judicially estop a claimant from a workers' compensation claim.
• Monroe v. Maco Workers Comp Trust (2014). Where an occupational disease has not previously been adjudicated against any employer, the "potentially causal" standard applies, so liability falls on the employer of the last employment with exposure of the type and kind that could have caused the disease. The one-year claim period for an occupational disease runs from when the claimant knew or should have known the condition resulted from that employment.
• Peterson v. Liberty NW Ins. Corp. (2013). Under § 39-72-403, MCA, an occupational disease claim must be filed within one year of when the claimant knew or should have known the condition resulted from an occupational disease; the period began when Peterson was diagnosed with asbestos-related disease and knew of his asbestos exposure at work.
• Johnson v. Liberty Northwest Insurance Corporation (2009). Under the last injurious exposure rule, the insurer for the last employer in whose employment the worker was injuriously exposed is liable for the whole occupational disease; about eight years of asbestos exposure at the last employer was enough to be injurious and sufficient to cause the disease.

Nebraska

• Olivotto v. DeMarco Bros. Co. (2007). Under the last injurious exposure rule, liability for an occupational disease falls on the employer whose work exposed the employee in a way that could cause the disease. A worker who retired decades before disability suffered no loss of earning capacity and gets no weekly indemnity benefit.
• Osteen v. AC & S., Inc. (1981). Where an asbestos-related occupational disease develops over successive employments and its onset cannot be pinpointed, the employer of the last injurious exposure pays the entire award. That exposure need only be of a kind that could cause the disease, and the limitations period and benefit rate run from the date disability is first incurred.

Nevada

• State Indus. Ins. System v. Jesch (1985). Nevada's occupational disease time limits for dust diseases do not bar compensation for latent asbestos-related mesothelioma, and the last injurious exposure rule applies to successive-employer claims, so the claimant need not prove which one employment caused the disease.

New Jersey

• Barile v. 3M Company, Inc. (2013). A builder of a custom boiler that is an improvement to real property is protected by the ten-year statute of repose, including for follow-up repairs and for strict liability claims based on standard asbestos insulation made by others. A landowner owes no duty to protect an independent contractor's workers from hazards inherent in the contracted work unless it controls the means and methods of that work.
• Anderson v. AJ Friedman Supply Co. (2010). An employer shielded by workers' compensation exclusivity for an employee's direct occupational exposure can still be sued under a dual persona theory for a separate duty owed to the employee's spouse for take-home asbestos exposure. Fault need not be allocated to the employer in its capacity as the plaintiff's own employer.
• Coffman v. Keene Corp. (1993). In a strict liability failure-to-warn case, the plaintiff may rely on a rebuttable presumption that he would have followed an adequate warning. In the workplace, the manufacturer can rebut it only by proving that the employee, with meaningful choice, or the employer would not have heeded a warning.
• Millison v. EI du Pont de Nemours (1988). The fraudulent-concealment verdict could rest on circumstantial evidence and a jury could treat defendants' silence as evidence. OSHA citations are hearsay and are not admissible as public records or business entries, but their admission without a limiting instruction was harmless here.
• Bush v. Johns-Manville Products Corporation (1977). Dependency benefits for death from occupational disease are computed on wages under the contract of hiring with the employer liable for compensation, at the time of exposure or employment, not on later wages or the date of death; any change to the wage base is for the Legislature.
• Gromack v. Johns-Manville Products Corp. (1977). A compensation judge may consider an employer's unreasonable and unjustified delay in admitting liability when allocating the attorney's fee between employer and petitioner, but not in fixing the total fee; the total must be reasonable, and an award is modified only if manifestly excessive or inadequate.

New York

• Petro v. Aerco Intl., Inc. (2023). A jury verdict may be set aside only if no valid line of reasoning and permissible inferences could lead rational jurors to the result. Disputed facts, credibility and the weight of expert testimony are for the jury, and expert causation testimony needs enough specificity about exposure but not a precise numerical dose.
• Theophil v. AO Smith Water Prods. CO (2022). On summary judgment the movant must first show no triable issue, and viewing the evidence favorably to the plaintiff, presence near spray operations and a contractor's possible supervisory control over the injury-producing work raise fact issues.
• Mauro v. Consolidated Edison of New York (In re New York City Asbestos Litigation) (2020). Under Labor Law § 200, liability may attach to a party that controls the work through specifications directing the means and methods of using asbestos-containing products, monitors compliance, and can stop work; conflicting testimony on control raises credibility issues that preclude summary judgment.
• Rivera v. General Electric Co. (In re New York City Asbestos Litigation) (2020). Workers' compensation exclusivity bars only injuries arising from employment with the defendant. Where plaintiffs allege exposure to GE's products during earlier employment with other employers, fact issues preclude summary judgment, and the punitive damages claim is left for the trial judge after all the evidence.
• Matter of Gimber v. Eastman Kodak Co. (3rd Dept., 2020). Under Workers' Compensation Law § 44, apportionment to a prior employer requires evidence of when the occupational disease was contracted; unquantified prior exposure and speculative medical opinions do not establish that the disease began during the prior employment.
• Brown v. Consolidated Edison Co. of New York (Matter of New York City Asbestos Litigation) (1st Dept., 2019). Where the jury's share of fault assigned to a nonparty was most likely attributed to that party as the decedent's employer, who could not be sued directly because of a grave injury under the Workers' Compensation Law, CPLR 1602(4) lets that share be added to the defendant's, so the defendant is not protected by the 50% limit on its own share. A defendant that wants to limit that share must object to the verdict sheet and charges and propose a clarifying question.
• Brown v. Consolidated Edison Co. of New York (In re New York City Asbestos Litigation) (2017). Where a non-party employer appears on the verdict sheet only as a manufacturer that failed to warn, and the plaintiff was exposed to its products before working for it, the workers' compensation bar does not remove it from CPLR article 16 apportionment, so its share is not shifted to a co-defendant.
• Matter of Claim OF Manocchio v. Abb Combustion Eng'g (3rd Dept., 2017). Apportionment among prior employers depends on whether the claimant contracted the occupational disease while employed by each one. Without objective proof of contraction during earlier employment, the Board's refusal to apportion and its setting of the contraction date at the diagnosis date were supported by substantial evidence.
• North v. National Grid Generation (IN the Matter of New York City Asbestos Litig.) (1st Dept., 2016). An owner that specifies the means and methods of work and coordinates the trades can be liable under Labor Law § 200, and a pre-1996 indemnification clause covering all losses arising from the work can require the contractor to indemnify the owner, including fees for defending the plaintiff's action but not for prosecuting the indemnity claim.
• Koulermos v. O'Connor Constructors (Matter of New York City Asbestos Litig.) (2016). A defendant moving for summary judgment in a New York asbestos case must affirmatively show its work could not have contributed to the plaintiff's injury; pointing to gaps in the plaintiff's evidence is not enough.
• Mtr OF Diegelman v. City (2016). A police officer who receives General Municipal Law § 207-c benefits may still sue the employer under § 205-e when the municipality has elected not to provide workers' compensation coverage, because the § 205-e bar applies only to recipients of workers' compensation benefits.
• Unterberg v. ExxonMobil Oil Corp. (2016). A Jones Act claim lies only against the seaman's employer, and a parent company is treated as the employer or vessel owner only if the subsidiary is its mere instrumentality or alter ego, which requires actual domination rather than mere stock ownership or some overlap of personnel and offices.
• Djokic v. United States Steel Corp. (In re New York City Asbestos Litigation) (2015). Under the third Neumeier rule in split-domicile cases, the law of the place of injury normally governs unless another state's interest displaces it. Pennsylvania's workers' compensation law therefore applied, and its exclusivity provision did not bar this suit.
• Storey v. Morse Diesel (In re New York City Asbestos Litigation) (2015). A general contractor seeking summary judgment on Labor Law § 200 and negligence claims must first establish prima facie that it did not create or have notice of the dangerous condition and lacked supervision and control; where it does not, the motion fails.
• Houston v. AO Smith Corp. (2014). A general contractor is not liable under Labor Law § 200 for asbestos exposure where it only exercised general supervisory authority over subcontractors and there was no evidence it knew the swept debris contained asbestos or was hazardous.
• Houston v. Beazer E., Inc. (2014). To hold a general contractor liable under Labor Law § 200 or common-law negligence, plaintiffs must show it controlled the activity causing the injury or had actual or constructive notice of the hazardous condition; general supervisory authority and speculative evidence are not enough.
• Konstantin v. Tishman Liquidating Corp. (Matter of New York City Asbestos Litig.) (1st Dept., 2014). Consolidation of asbestos cases under CPLR 602(a) rests in the trial court's discretion, applying the Malcolm factors flexibly. A manufacturer that has a sufficiently significant role, interest or influence in the asbestos components used with its product after sale may have a duty to warn about them, though foreseeability alone does not create that duty.
• Norton v. AO Smith Water Prods. Co. (2014). In asbestos litigation, once the defendant makes a prima facie showing, the plaintiff must show facts from which the defendant's liability may be reasonably inferred. Exposure from insulation applied to boilers could not be attributed to a contractor that built the boilers but was not responsible for the insulation work.
• Brown v. Bell & Gosset Co. (2013). A Labor Law § 200 claim against a site owner requires authority to control the activity causing the injury; testimony that the owner or general contractor selected the asbestos insulation the worker installed is enough to raise a fact issue on summary judgment.
• Konstantin v. 630 Third Ave. Assoc. (2012). A verdict is set aside as a matter of law only if no valid line of reasoning could support it, and a pain and suffering award is reduced under CPLR 5501(c) when it deviates materially from reasonable compensation. Expert causation opinions need only a proper foundation in generally accepted methods, not studies on identical circumstances.
• Matter of Kirisits v. Durez Plastics/occidental (3rd Dept., 2012). A claim for death benefits is separate from the decedent's original disability claim, so where the death claim rests on a new occupational disease (mesothelioma) with no shown causal link to the earlier established disease (pleural asbestosis), the seven-year period in Workers' Compensation Law § 25-a is not triggered and liability does not shift to the Special Fund.
• Konstantin v. 630 Third Ave. Assocs. (2011). Workers' compensation exclusivity bars an employee's claims only for exposure arising out of and in the course of employment with that defendant, not for later exposure as an employee of a different employer. Whether a general contractor controlled the work site is a fact question that can defeat summary judgment.
• Bernard v. Brookfield Prop. Corp. (2010). A plaintiff's death from a previously diagnosed disease is not a new fact supporting renewal under CPLR 2221(e), and the workers' compensation exclusivity bar on claims against the employer still applied; a third party may seek contribution from the employer only in a separate action.