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.

New York

• Nostrom v. AW Chesterton Co. (2010). Vicarious liability under Labor Law § 241 (6) cannot rest solely on violations of Industrial Code part 12 regulations; a part 12 rule can support the claim only where it is specifically incorporated into part 23, as in unventilated confined areas under 12 NYCRR 23-1.7 (g).
• IN the Matter of Mlodozeniec v. Trio Asbestos Removal Corp. (3rd Dept., 2009). Where a carrier has a policy in place on the date of an employee's disablement from an occupational disease, that carrier is responsible for the award even if it was not the carrier when the employee was last exposed.
• Matter of Anne Lautenschuetz v. AP Greene Industries, Inc. (3rd Dept., 2008). Under Workers' Compensation Law § 29(5), a settlement made more than three months earlier can be approved nunc pro tunc only if the amount is reasonable, the delay was not the petitioner's fault or neglect, and the carrier was not prejudiced; failure to seek approval for avoidable reasons bars approval.
• Nostrom v. Chesterton (2008). In this Department, the general air-contaminant regulations in section 12 of the Industrial Code do not support Labor Law 241(6) liability. Even if they applied, asbestos fibers created by contractors' own work are not the kind of contaminant they address.
• Briggs v. General Electric Co. (Nassau, 2007). A summary judgment movant must first make a prima facie showing eliminating material fact issues, and failing that, its motion is denied regardless of the opposing papers. An insulation contractor performing a service is not a manufacturer or seller, so strict liability and warranty claims fail.
• Croteau v. Treadwell Corp. (Matter of New York City Asbestos Litigation) (1st Dept., 2007). Broad contractual indemnity clauses covering 'any and all liability' occasioned in whole or part by the contractor's act or omission can require indemnification even where the indemnitee was itself negligent. Failure to allocate the contractor's negligence among sites does not bar indemnity.
• Held v. Sequoia Ventures (Matter of New York City Asbestos Litigation) (1st Dept., 2007). A theory raised for the first time on appeal is not properly before the court. The record also showed the engineer's asbestos specifications had been superseded by the site owner's interim specifications before the decedent began work, which precluded the negligence and Labor Law § 200 claims against the engineer.
• 8th Jud Dist Asbestos Litig (Erie, 2006). Under the New York Court of Appeals' duty analysis, an employer owes no duty to an employee's spouse for take-home asbestos exposure absent a relationship with her, and OSHA regulations create no private right of action or duty to her. Possessing asbestos pipe insulation in a building is not an abnormally dangerous activity.
• Barbara Commarata v. Cook, Inc. (3rd Dept., 2005). Substantial evidence supported the Board's finding that Merchants was the employer's workers' compensation carrier in 1965, with coverage presumed to continue absent proof of cancellation or refusal to renew.
• IN the Matter of Cammarata v. Caldwell & Cook, Inc. (3rd Dept., 2005). In an occupational disease claim, liability falls on the last employer in the employment that caused the disease, so the carrier at risk during that employment pays. A carrier's coverage is deemed to continue absent evidence of cancellation or non-renewal. The Board may rely on the claimant's expert on causation when there is no contrary evidence.
• Holdampf v. Port Authority of New York and New Jersey (Matter of Nyc Asbestos Litig) (2005). Under New York law, an employer or landowner owes no duty of care to an employee's household member allegedly injured by asbestos dust brought home on work clothes, because no relationship between the defendant and the plaintiff creates such a duty.
• Matter of Conway v. Cbi Services, Inc. (3rd Dept., 2003). Where the medical evidence does not show a dust disease, liability falls under Workers' Compensation Law § 44 on the last employer in the kind of employment that caused the disease, and notice to the employer is imputed to its carrier. A settlement of the disability claim's third-party action does not bar the separate death claim.
• Matter of Drewes v. Steel (3rd Dept., 2003). A carrier ordered to contribute a share of compensation benefits is liable for compensation and so holds a lien under Workers' Compensation Law § 29(1) on third-party settlement proceeds, and its written consent to the settlements is required. The Board could rationally put the duty to obtain consent on the State Insurance Fund.
• Matter of O'malley v. Consolidated Edison Company of New York (3rd Dept., 2003). A medical opinion on causation need only signify a probability and have a rational basis. If it is uncontroverted, the Workers' Compensation Board may not reject it without contrary medical expert opinion evidence.
• Maiorana v. United States Mineral Prods. Co. (In re Joint Eastern & Southern Dist. Asbestos Lit.) (1995). Daubert enlarged the court's gatekeeping role on admissibility but did not change the traditional standard for sufficiency of evidence; a court deciding judgment as a matter of law must view the evidence favorably to the non-movant and may not weigh competing expert and epidemiological evidence or credibility.
• Tabolt v. Flintkote Co. (In re New York Asbestos Litigation) (1994). A jury may infer exposure to a defendant's asbestos product from circumstantial evidence that the product was sold at the worksite and produced dust. Irreconcilable answers on a special verdict form require a new trial rather than the court discarding one answer. Settlement credits under N.Y. G.O.L. § 15-108 follow the New York Court of Appeals' aggregate method.
• Maiorana v. United States Mineral Prods. Co. (In re Joint Eastern & Southern Dist. Asbestos Lit.) (1993). Epidemiological evidence showing a weak, inconsistent association between asbestos and colon cancer, combined with only a differential diagnosis, is insufficient to show that asbestos more likely than not caused the cancer, so a jury verdict resting on it cannot stand.
• Matter of Smith v. Certain Teed Prods. Corp. (3rd Dept., 1981). Mesothelioma is not a 'dust disease' under Workers' Compensation Law section 44-a, because that phrase is limited to the pneumoconiosis group, so the 12-month limit of section 40 applies. Any change to that classification is for the Legislature.
• Matter of LA Gattuta v. Baldwin Ehret-Hill, Inc. (3rd Dept., 1971). Liability for an occupational disease award falls on the carrier on the risk on the date of disablement, since the disablement, not the contraction of the disease, is the industrial accident. The board's finding of asbestos exposure at the site was supported by substantial evidence.

North Carolina

• Walls v. Ford Motor Company (2022). Under North Carolina law as predicted by the court, no sophisticated user or learned intermediary defense exists, and the Workers' Compensation Act does not bar product liability suits against third-party manufacturers. Contributory negligence, misuse and intervening cause turn on factual disputes for the jury, but assumption of risk fails without evidence that the plaintiff knew of the risk in time.
• Reed v. Reichhold Liquidation, Inc. (2021). Predicting Iowa law, the court held that the Iowa Supreme Court would abandon the 'sole proximate cause' defense after adopting the Restatement (Third) of Torts in Thompson v. Kaczinski. Even if the defense existed, disputed facts about the employer's conduct would prevent summary judgment.
• Smith v. Schlage Lock Company, LLC (2021). Under North Carolina law an asbestos plaintiff must show actual exposure, and an expert opinion built on speculation cannot supply it. A landowner that hires an independent contractor and does not retain control over the work is not liable for dangers incident to that work.
• Finch v. BASF Catalysts LLC (2018). A reasonable jury could infer from circumstantial evidence that a supplier sold asbestos-containing insulation to the plant. Premises liability requires control of the work area, design claims apply only to manufacturers, and punitive damages under North Carolina law require willful and wanton conduct beyond gross negligence.
• Gaunt v. Guy M. Beaty & Co., Inc. (2018). A death-benefits claim under N.C. Gen. Stat. § 97-38 is a distinct claim from the worker's underlying compensation claim, so a court setting a § 97-10.2(j) lien need not weigh prospective third-party recoveries tied to the worker's separate claim. The court's lien decision is reviewed for abuse of discretion.
• Penegar v. United Parcel Service (2018). Under the last-injurious-exposure rule, a claimant need only show an exposure that augmented the disease to any extent, however slight. If the record has no evidence of asbestos exposure in later jobs, the employer must produce some evidence of it, and the claimant need not prove that no later exposure occurred.
• Lovelace v. B&r Auto Service, Inc. (2017). Under N.C. Gen. Stat. § 97-57, liability rests with the employer where the worker was last injuriously exposed, and the Commission may draw reasonable inferences from circumstantial evidence to find that exposure occurred in later self-employment. Findings supported by competent evidence are binding on appeal.
• Moore v. Alcatel-Lucent USA, Inc. (2017). The Woodson exception to workers' compensation exclusivity applies only where an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death; knowledge that harm was possible or probable is not enough.
• Phillips v. Pneumo Abex, LLC (2017). Under North Carolina law, a jury may find a defendant's negligence was a proximate cause of injury yet also find that a third party's intervening negligence became the sole proximate cause. Such answers on a special verdict form can be harmonized and are not inconsistent.
• Richardson v. Pcs Phosphate Company, Inc. (2016). A Medicare beneficiary may bring a private action under the Medicare Secondary Payer Act in federal court, and the beneficiary may sue as a third-party beneficiary under N.C. Gen. Stat. § 97-98 for a workers' compensation payer's failure to promptly pay. Unjust enrichment is unavailable where the claim rests on an express contract.
• Ketchie v. Fieldcrest Cannon, Inc. (2015). Under the plain language of N.C. Gen. Stat. §§ 97-130(4) and 97-131, a claim is a "covered claim" only if the injury, or for latent occupational disease the last injurious exposure, occurred while the self-insurer was a member of the Security Association.
• Logan v. Air Products and Chemicals, Inc. (2014). A plaintiff meets the Lohrmann frequency, regularity and proximity test with evidence of repeated work on or near the defendant's asbestos-containing products over an extended period. North Carolina's products liability statute of repose does not apply to disease claims, under Hyer.
• Richardson v. Pcs Phosphate Company, Inc. (2014). Under N.C. Gen. Stat. § 97-57, last injurious exposure is an exposure that proximately augmented the disease to any extent, however slight, and the Commission decides credibility and weight of the evidence. Competent evidence that the worker continued to visit asbestos areas supported a 1995 last-exposure date.
• Wise v. Alcoa, Inc. (2013). The Industrial Commission may admit expert testimony from experts qualified in their general fields, and its findings are upheld if any competent evidence supports them. A non-mandatory federal guideline noting a general association between asbestos and esophageal cancer is not binding and does not establish causation in an individual case.
• Johnson v. Covil Corporation (2011). In occupational disease cases the claim arises at diagnosis, so the maximum compensation rate for the year of diagnosis applies, and death benefits under N.C. Gen. Stat. § 97-38 are 66 2/3% of the average weekly wages. The Commission must also explain why the first method of computing average weekly wages would be unjust before using another method.
• Kingston v. Lyon Construction, Inc. (2010). A superior court has jurisdiction under N.C. Gen. Stat. § 97-10.2(j) to determine a workers' compensation lien once a final, enforceable settlement with some third parties exists, even if claims against other third parties remain. The court has discretion to reduce the lien after considering the statutory factors.
• Payne v. Charlotte Heating & Air Cond. (2005). The time limit in the fourth paragraph of N.C. Gen. Stat. § 97-61.6, which gave asbestosis and silicosis death claims a shorter period than other latent occupational diseases, violates the Equal Protection Clause under rational basis review. The Commission's findings on asbestosis, causation and last injurious exposure were supported by competent evidence and so were binding.
• Robbins v. Wake County Bd. of Educ. (2002). A disease not listed in N.C. Gen. Stat. § 97-53 is a compensable occupational disease if it is characteristic of the trade, not an ordinary disease of life the public is equally exposed to, and causally related to the employment. Competent evidence of higher-than-normal asbestos in the workplace and expert testimony can satisfy this test.

North Dakota

• Palmer v. 999 Quebec, Inc. (2016). Whether a duty is owed in a take-home asbestos case, whether judged by foreseeability of injury, the relationship of the parties, or both, depends on evidence of the defendant's knowledge of asbestos dangers or a special relationship, and the plaintiff offered none.

Ohio

• Bennett v. the Scotts Miracle-Gro Co. (3rd Appellate District, 2018). A non-examining physician reviewing a file must accept the examining physician's factual findings but may draw his own opinions from them. The trial court could therefore rely on that physician's opinion that asbestosis requires interstitial fibrosis, and the denial was not against the weight of the evidence.
• Dennis v. Gen. Motors Corp. (3rd Appellate District, 2016). Asbestos-related lung cancer is not 'asbestosis' under R.C. 4123.68, so the pulmonary-function-test requirements of R.C. 4123.68(Y) do not apply to it. Resolution R03-1-02 applies only to 'injured workers,' not to surviving-spouse claimants.
• Burkhart v. HJ Heinz Co. (2014). Under Evid.R. 804(B)(1), former testimony is admissible against a party only if that party or its predecessor-in-interest (one in privity, from whom it received a right, title, interest or obligation) had an opportunity and similar motive to examine the witness; merely sharing an interest in the facts and outcome is not enough.
• State EX rel. General Motors Company v. Webster (10th Appellate District, 2014). Under R.C. 4123.61, a decedent's average weekly wage in an occupational disease death claim is measured from the date disability began, not the date of diagnosis. Where some evidence shows that the worker's departure from work was caused by the disease, the commission may find the retirement involuntary.
• Burkhart v. HJ Heinz Co. (6th Appellate District, 2013). A deposition from a prior asbestos suit is admissible as former testimony under Evid.R. 804(B)(1) when a party in the earlier case had a similar motive and opportunity to examine the witness (the Lloyd test). Properly authenticated business records, medical-history statements, and interrogatory answers from other cases may be considered on summary judgment, and disputes over whether the material was asbestos present fact questions.
• Fisher v. Beazer East, Inc. (8th Appellate District, 2013). A plaintiff in a multidefendant asbestos case must prove exposure to the defendant's product and that it was a substantial factor in causing the injury. Under Ohio's apportionment statutes, a jury may allocate fault to employers who are immune from suit under workers' compensation law, as "empty chair" parties.
• State EX rel. Qunicel v. Indus. Comm. (10th Appellate District, 2012). Under R.C. 4123.57(D), a claimant with asbestosis who neither changed occupations nor attempted to do so after a finding that a change was medically advisable does not meet the statute's terms for change-of-occupation compensation.
• State EX rel. Roger Bacon High School v. Indus. Comm. OF Ohio (10th Appellate District, 2011). Under the last injurious exposure rule, responsibility goes to the employer that last provided an injurious exposure. A commission finding supported by some medical evidence is not an abuse of discretion, and the commission weighs conflicting evidence.
• Welsh v. Ford Motor Co. (8th Appellate District, 2011). A workers' compensation claimant must show by a preponderance that the disease was contracted through injurious exposure in the course of employment. Coworker testimony about exposure, together with expert testimony and corroborating records, was enough for the jury, and a challenge to an expert's scientific foundation not raised at trial under Daubert or Evid.R. 702 was waived.
• Connell v. Goodyear Tire & Rubber Co. (8th Appellate District, 2010). A buyer of a company's assets that did not assume liability for claims by former employees is not the successor to that liability. An employer intentional tort claim requires proof that the employer actually knew harm to the employee was substantially certain. A liability-only summary judgment is not a final appealable order.
• Beany v. Ohio State Univ. (2009). Under R.C. 2745.01 and the common-law Fyffe test, an employer is liable for an intentional workplace tort only if it acted with intent to injure or knew that injury was substantially certain; knowing of a risk is not enough.
• Fagerholm v. Gen. Elec. Co., Inc. (8th Appellate District, 2009). To prove an employer intentional tort under Fyffe, the employee must show the employer knew harm was substantially certain; knowing of a risk or that asbestos is dangerous is not enough. A trial court may limit discovery of corporate knowledge to the products and conditions present at the plaintiff's facility.