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.

Ohio

• Polanco v. Asbestos Corp., Ltd. (3rd Appellate District, 2009). An employee's asbestos claim against his employer can avoid workers' compensation exclusivity under the intentional-tort exception if there is a genuine issue of fact on all three Fyffe elements: the employer knew of the danger, knew harm was substantially certain, and required the employee to keep doing the dangerous work. Company documents of the kind offered here can be authenticated as ancient documents under Evid.R. 901(B)(8) when age, condition and custody are shown.
• Louden v. AW Chesterton Co. (8th Appellate District, 2008). To prove an employer intentional tort under Fyffe, the employee must show the employer knew harm was substantially certain; knowing of a risk, or acting negligently or recklessly, is not enough, and an employer that provided respirators and permitted their use did not meet that standard.
• State EX rel. Pilkington North America, Inc. v. Indus. Comm. (2008). The last-injurious-exposure principle assigns workers' compensation responsibility for a long-latency occupational disease to the employer that last exposed the worker to the hazard. It is not limited to the context described in Erieview, and the court declined to adopt a first-injurious-exposure rule.
• Polanco v. Asbestos Corp., Inc. (3rd Appellate District, 2007). A judgment that adjudicates fewer than all claims or parties is not a final, appealable order unless the trial court makes the Civ.R. 54(B) express determination that there is no just reason for delay.
• State EX rel. Pilkington N. AM. v. Indus. Comm. (10th Appellate District, 2007). The last-injurious-exposure rule applies only to decide which employer a claim is allowed against when several employers exposed the worker, and it cannot be used to allocate risk liability between one employer's self-insured and state-fund periods after the claim is already allowed.
• Varner v. Ford Motor Co. (8th Appellate District, 2007). Under R.C. 4123.85, a workers' compensation death claim from occupational disease must be filed within two years after death, and the Svet rule (six months from diagnosis as occupational) applies to living claimants, not death claims.
• Snyder v. Ford Motor Co. (3rd Appellate District, 2005). To participate in the workers' compensation fund for an occupational disease, the claimant must show asbestos exposure at an employer's facility that was injurious, meaning it proximately caused, augmented or aggravated the disease. An expert opinion that all of the worker's exposures were significant contributing causes creates a genuine factual issue that defeats summary judgment, even against a latency-period argument.
• State EX rel. Abex Corp./electro Alloys Div. v. Indus. Comm. OF Ohio (10th Appellate District, 2005). A common pleas court hearing an R.C. 4123.512 appeal cannot decide which employer is liable, so mandamus is the remedy for challenging that question. An order naming a sole liable employer must have some evidence behind it, and the medical reports here did not support the last-injurious-exposure finding.
• State ex rel. Maynard v. Indus. Comm. (2002). Following its earlier decisions in Zupp and Pickrel, the court held that R.C. 4123.59(B) did not entitle the widow to have her weekly death benefit raised to the statutory maximum, so mandamus was denied.
• State ex rel. Thompson v. Ohio Edison Co. (1999). Although mesothelioma's long latency creates 'special circumstances' under R.C. 4123.61, the average weekly wage set by the commission was still substantially just because the decedent had no future compensation to lose. Denying a maximum award did not violate equal protection because the claimant was not similarly situated to claimants whose decedents lost income due to death.
• Estate of Orecny v. Ford Motor Co. (8th Appellate District, 1996). Under R.C. 4123.65 as amended in 1993, a settlement between a self-insuring employer and a claimant that is binding and dismissed with prejudice in the common pleas court does not abate when the claimant dies, and the Industrial Commission's abatement regulation does not apply to it.
• State ex rel. Liposchak v. Indus. Comm. (1995). A claimant who left work before a long-latency occupational disease arose, and before any workers' compensation claim for it existed, is not treated as having voluntarily abandoned the job market, so the voluntary-abandonment bar to permanent total disability does not apply.
• Baechel v. Sears, Roebuck & Co. (1994). A claimant for an occupational disease must show an injurious exposure to asbestos in the course of employment at the last employer, and basic proximate-cause principles allow a dual-causation instruction when employment and environmental exposures combine to cause the disease.
• Gradwell v. AS Helbig Constr. Co. (1989). Under State ex rel. Burnett v. Indus. Comm., a claimant in a de novo workers' compensation appeal may add additional employers as parties at the trial court level, even after the two-year limitations period has expired.
• Adkins v. GAF Corp. (1988). Raw asbestos fiber sold in unwarned burlap or paper bags was a defective product under Ohio strict liability, even though the buyer knew the hazards. Under recent Ohio and Sixth Circuit decisions, failure to warn alone, without the statutory presumption, does not prove the intent needed for an employer intentional tort.

Oklahoma

• Zinc Corp. OF America v. Reeder (2nd Division, 2007). The 60-day exposure requirement in Oklahoma's workers' compensation statute applies only to silicosis and asbestosis, not mesothelioma, so the general last-injurious-exposure rule applies, under which the last employer is liable without a minimum quantity of exposure.
• Fautheree v. McCaffrey (3rd Division, 2005). Oklahoma's workers' compensation limitations exception for asbestosis, silicosis and nuclear radiation exposure does not extend to mesothelioma or other asbestos-related diseases, so a claim not filed within two years of last exposure is barred.

Oregon

• Ibarra v. CH Murphy/clark-Ullman, Inc. (2024). Under California law, where the complaint alleges work-related injuries by an employer, workers' compensation coverage is presumed and the plaintiff bears the burden of showing the exclusive remedy rule does not apply. Plaintiff's evidence of noncompliance with Labor Code section 3702.8 did not meet that burden on summary judgment.
• Golik v. CBS Corp. (2020). A trial court may infer, from the circumstances, that counsel deliberately withheld responsive discovery. That is misconduct supporting a new trial under ORCP 64 B(2) if it materially affects the moving party's substantial rights. Under Washington law, a premises owner can be liable to an independent contractor's employee for a dangerous condition if the owner negligently directed the contractor to create it.
• Beneficiaries of Estate of Strametz v. Spectrum (1997). Under the last injurious exposure rule, an employer is not responsible for an occupational disease if it proves that conditions of its employment could not have caused the disease, including where the disease's latency period shows the exposure there could not have been the cause.
• Estate of Strametz v. Spectrum Motor., Inc. (1995). Under Oregon's last injurious exposure rule, a claimant need only show that conditions at the Oregon employment were of a kind that could have caused the disease. It does not matter that the disease's latency period meant the Oregon exposure could not have been the actual cause.
• Matter of Compensation of Fossum (1982). Under the last injurious exposure rule, liability depends on which employment involved conditions that could have caused the disease, not which one actually did. The last potentially causal employer is solely liable, and the statutes in force at the time established as a matter of law that SIAC (now SAIF) covered a shipbuilder that had not opted out.

Other federal courts

• Tkk USA, Inc. v. Safety National Casualty Corp. (2013). Under Illinois law, an excess policy covering liability under "Workers' Compensation or Employers' Liability Laws" includes employee common law claims against the employer, even groundless ones barred by the occupational diseases act's exclusivity provision; ambiguity is construed against the insurer.
• Albina Engine & Machine v. Director, Owcp (2010). In LHWCA occupational disease cases with multiple employers, the §20(a) presumption must be invoked against each employer, and the evidence is analyzed sequentially starting with the last employer. The first employer in that sequence who fails to rebut the presumption, or is shown responsible by a preponderance, is liable.
• Conwed Corp. v. Union Carbide Corp. (2006). Under Minnesota law, after a Naig settlement the jury's allocation of fault to the employer is applied once, to the lesser of the verdict or the workers' compensation benefits paid and payable, and a verdict on warnings in a mesothelioma trial does not collaterally estop litigation of warnings for asbestosis claims where the issue was not necessarily determined.
• New Orleans Stevedores v. Ibos (2003). Under the LHWCA's last exposure rule, the last exposing employer is liable for the full award, and it can escape only by proving that asbestos exposure did not cause the disease or that a later covered employer exposed the worker. An employer is not entitled to a credit for settlements with earlier employers under the LHWCA itself, because the Nash credit doctrine covers successive aggravating injuries and not alternative liability for one injury.
• Upsher v. Grosse Pointe Public School System (2002). In a non-custodial setting, a § 1983 substantive due process claim requires intentional injury or arbitrary conduct intended to punish (conscience-shocking behavior), and negligence is not enough. Under Michigan's workers' compensation act, the intentional tort exception requires proof that the employer had actual knowledge that injury was certain to occur and willfully disregarded it.
• Newport News Shipbuilding and Dry Dock v. Stilley (2001). The Director's last maritime employer rule, which makes the last LHWCA-covered employer fully liable even when a later non-maritime employer also contributed to an occupational disease, is a reasonable construction of the Act and is constitutional under rational basis review.
• Norfolk Shipbuilding & Drydock Corp. v. Faulk (2000). Under the last employer rule, the employer in the last employment with exposure to injurious stimuli is liable for the full award, and it can rebut the statutory presumption only by showing the exposure had no potential to cause the disease or that a later employer exposed the worker. The court declined to require a minimum level of exposure.
• Blanding v. Director, Owcp (1999). An employer or carrier that fails to rebut the 33 U.S.C. § 920(b) presumption of notice is treated as having notice, so its failure to file the required § 930(a) report tolls the limitations period under § 930(f). The Board may not substitute its own factual findings for the ALJ's findings supported by substantial evidence.
• Brown & Root, Inc. v. Sain (1998). Under the LHWCA a latent-disease claimant becomes a "person entitled to compensation" when he learns of the disease and its disabling effect, not at exposure. For the section 33(g) forfeiture comparison, the gross amount of third-party settlements is compared with disability compensation only, excluding medical benefits.
• Becht v. Owens Corning Fiberglas Corp. (1992). Under Kentucky law, workers' compensation exclusivity is an affirmative defense the employer must prove, including that it employed the plaintiff and secured payment of compensation in Kentucky. Denial of a new trial on weight-of-the-evidence grounds is reviewed only for abuse of discretion.
• Force v. Director, Owcp, Dept. of Labor (1991). Under 33 U.S.C. § 933(f), an employer may offset the claimant's entire third-party recovery, including non-economic and punitive damages, but only the portion attributable to the claimant. The employer bears the burden of proving that apportionment in a multi-party settlement.
• Eagle-Picher Industries, Inc. v. US (1988). The LHWCA's express exclusion of federal employees (§ 903(b)) means § 905(b) gives no right of action against the United States for its own employees, so a third-party contribution claim under the FTCA fails. Asbestos injuries to shipyard workers also lack the significant relationship to traditional maritime activity needed for admiralty jurisdiction.
• Joyce v. AC and S., Inc. (1986). Under Virginia law a personal injury plaintiff has a single, indivisible cause of action that accrues at the first injury, so later distinct asbestos-related diseases do not restart the two-year limitations period. The Workers' Compensation Act's exclusivity provision bars an employee's claim against his employer unless the employer intended to injure him, and knowingly exposing him to a hazard is not enough.
• Shelly v. Johns-Manville Corp. (1986). Predicting Pennsylvania law, the court held that the dual capacity exception to workers' compensation exclusivity is viable, and that employees alleging asbestos exposure from their employer's pollution away from the workplace state a claim outside the comp-bar. Under Wilson v. Asten-Hill, such allegations do not fit the intentional tort exception.
• Gideon v. Johns-Manville Sales Corp. (1985). Under Texas law an asbestos plaintiff has one cause of action covering all harm from the injury, so expert testimony that cancer is probable is admissible and fear of probable future disease is recoverable. Liability requires proof that each defendant's product was unreasonably dangerous and a producing cause, and for Raymark and Standard that proof was insufficient.
• Lowe v. Ingalls Shipbuilding, A Div. of Litton (1984). A declaratory judgment suit needs an independent basis of federal jurisdiction; realigning parties by their true interests defeated diversity, a federal defense under the LHWCA cannot support federal question jurisdiction, and admiralty jurisdiction requires a maritime situs and a relationship to traditional maritime activity, which the pleadings did not show.

Pennsylvania

• Constantine v. Lenox Instrument Co., Inc. (2024). A trial court may limit a toxicologist who is not a physician and has no experience diagnosing patients to general causation. Under Pa.R.Civ.P. 238, delay damages are excluded only for delay the plaintiff caused, not for administrative or COVID-related court delays. A Supreme Court reading of the Workers' Compensation Act that lets a mesothelioma claim proceed in tort does not take away a vested defense.
• Data v. Pennsylvania Power Company (2023). Under the Commonwealth Court's Herold decision, mesothelioma that develops more than four years after last workplace asbestos exposure is outside the ODA's exclusive-remedy provision. Once the federal-officer defendants were dismissed, the court declined to keep supplemental jurisdiction because fairness, convenience and judicial economy did not favor it.
• Data v. Pennsylvania Power Company (2023). A federal court may stay a common-law asbestos tort suit against an employer until the Pennsylvania Occupational Disease Act administrative process and its appeals are fully and fairly resolved, because the outcome could bar the claims. Review of a magistrate judge's nondispositive order is for clear error or contrary to law.
• Shellenberger v. Kreider Farms (2023). An employer owes an employee, as a business invitee, a duty to protect against dangers that could be discovered with reasonable care, not just known dangers. Whether the employer should have known of asbestos hazards and breached that duty is a jury question when there is evidence the dangers were generally known.
• Gay v. AO Smith Corp. (2022). Under Pennsylvania law, a power station owner owed no duty to an independent contractor's employee as landowner, because the contractor knew of the asbestos danger. It owed none as employer of an independent contractor, because it did not retain control over the work and the asbestos exposure was an ordinary risk of the work, not a peculiar risk.
• Gay v. AO Smith Corporation (2022). Under Pennsylvania law, a landowner owes no duty to an independent contractor's employee for a danger the contractor knows of, and the retained-control and peculiar-risk exceptions did not apply because the owner did not control the contractor's methods and asbestos exposure was an ordinary risk of construction work.
• Herold v. University of Pittsburgh (2022). The Pennsylvania Occupational Disease Act's exclusive remedy provision does not reach an occupational disease that manifests more than four years after the employee's last exposure, because such a disease is not 'compensable disability or death' under the Act. The doctrine of primary jurisdiction does not require the employee to take such a claim to the Workers' Compensation Board first.
• Data v. AO Smith Corporation (2021). Under Pennsylvania law, a worker whose occupational disease first appears more than 300 weeks after his last exposure may bring common law claims against his employer, and a foreign corporation registered in Pennsylvania when the asbestos cause of action accrued (at injury) consents to general jurisdiction under 42 Pa.C.S. § 5301.
• Blystone v. Owens-Illinois, Inc. (2020). A worker's testimony that he spent full days a few feet from workers scraping asbestos pipe insulation, together with company documents showing asbestos coating use, creates a genuine dispute about exposure. A negligence claim against an employer for a safe workplace does not need expert testimony to establish duty.
• Gorton v. Air & Liquid Systems Corporation (2020). Under Ohio law, which applied to the employment-based claims, workers' compensation exclusivity bars negligence and recklessness claims against an employer. It does not bar a plausibly pleaded intentional tort claim, or claims against the employer in its separate capacity as manufacturer and supplier to other employers.
• Shields v. General Electric Co. (2020). The Locomotive Inspection Act preempts state-law negligence, wrongful death and survival claims that would impose state duties and standards of care on the manufacture and maintenance of locomotive equipment, including traction motors being refurbished for return to service.
• Gorton v. Air & Liquid Systems Corp. (2018). A foreign corporation registered in Pennsylvania consents to general personal jurisdiction under 42 Pa. C.S. § 5301 for acts or omissions occurring while it was registered after that statute took effect, and Bane remained good law after Daimler. A federal court applies Iqbal/Twombly pleading standards to a removed case, and conclusory asbestos allegations fail them.