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.

Pennsylvania

• Geier v. Board OF Public Education OF School District OF Pittsburgh (2017). A public employer has a common law duty to create reasonably safe conditions of employment, so a local agency can be liable to an employee for workplace asbestos exposure if the condition causing it falls within an exception to governmental immunity under the Tort Claims Act.
• National Fire Insurance Company OF Hartford v. Burns & Scalo Roofing Company (2017). Under Pennsylvania law, an insurer's duty to defend is determined from the factual allegations of the underlying complaint compared with the policy. Where those allegations fall within the employee-injury exclusion, there is no duty to defend or indemnify, and extrinsic evidence of a different employment status is not considered.
• Zenak v. Police Athletic League OF Philadelphia (2016). There is no right to a jury trial on a claim under the Pennsylvania Whistleblower Law, and submitting such a claim to a jury was prejudicial rather than harmless here. Where an asbestos exposure plaintiff shows no physical injury, emotional distress damages are not recoverable, and the Workers' Compensation Act bars a negligence suit against the employer.
• McCloskey v. Cemline Corporation (2015). The Workers' Compensation Act's exclusivity provision does not bar a common law action where the employee's claim is not compensable under the Act, as in mesothelioma diagnosed more than 300 weeks after the last workplace exposure (Tooey, which abrogated Sedlacek). An order disposing of all remaining parties makes the case final and appealable.
• Stellar v. Allied Signal, Inc. (2015). A state-law claim against an employer for asbestos exposure is not completely preempted by LMRA § 301 where the duty arises from state common law independent of the collective bargaining agreements and resolving the claim does not require interpreting any CBA provision.
• Scott v. Duquesne Light Company (2014). Where an occupational disease such as mesothelioma does not manifest within 300 weeks of the last workplace exposure, the Workers' Compensation Act does not apply and its exclusivity provision does not bar a common law tort suit against the employer (following Tooey).
• Tooey v. AK Steel Corporation (Western District, 2012). Claims for an occupational disease that manifests more than 300 weeks after the last exposure fall outside the Workers' Compensation Act, so the Act's exclusivity provision does not bar a common law action against the employer.
• Sabol v. Allied Glove Corp. (2011). A graduate student who was both a paid research assistant and a Ph.D. student is not an employee as a matter of law for workers' compensation exclusivity; a fact-finder must resolve how much asbestos exposure occurred while he was acting as a student rather than as an employee.
• Wagers v. Sgl Carbon, LLC (2011). Under North Carolina law, a premises owner owes an independent contractor's employees a general duty to warn of hidden dangers, but no breach occurs where the contractor already knew the danger. The owner also owes a nondelegable duty for inherently dangerous work, and whether the work was inherently dangerous is usually a jury question.
• JM Manufacturing/formosa Plastics Corporation v. Workers'compensation Appeal Board (2010). Under Gibson, a witness's testimony that a workplace item contained asbestos must rest on personal knowledge or specialized knowledge, not on what others said; without first-hand evidence of asbestos at the workplace, an occupational disease claim under Section 301(c)(2) fails.
• Shamir v. Agilent Technologies, Inc. (2010). Under New Jersey law's economic reality approach, an employee's tort claim is barred by workers' compensation exclusivity when, through a merger, the employer is the same corporate entity as the manufacturer of the injury-causing products; the dual capacity doctrine does not apply.
• Sedlacek v. AO Smith Corp. (2008). Mesothelioma is an occupational disease covered by the Workers' Compensation Act and Occupational Disease Act, so the exclusivity provisions bar a common-law suit against the employer even though the time limits in the Acts leave the claimant with no compensation. Applying the exclusivity provisions this way does not violate the Pennsylvania Remedies Clause or due process.
• Young v. Wcab (zinc Corp. OF America) (2006). Under Section 301(c)(2) of the Pennsylvania Workers' Compensation Act, liability for asbestos-related cancer falls on the employer of last exposure within the 300-week period before disability or death. The claimant need not prove which exposure period actually triggered the cancer. A claimant with an occupational disease may also recover medical expenses without any loss of earnings.
• Hutchinson v. AP Green Industries, Inc. (2004). Under New Jersey law (Millison), an employer's knowing exposure of employees to asbestos does not meet the "intentional wrong" exception, so workers' compensation is the exclusive remedy for the resulting occupational disease.
• Ace Robbins, Inc. v. Wcab (bullock) (1994). A self-employed claimant is not an employe under the Act and so has no employer; the last employer in whose employment the claimant was exposed for at least one year is liable, and the 'substantial contributing factor' test applies to work-related versus non-work-related causes, not to choosing between employers.
• Fisk v. Wcab (general Elec.) (1993). In occupational disease cases under the Pennsylvania Workmen's Compensation Act, the date of injury for calculating benefits is the date of last exposure, not the date the disease manifests. Penalties against an employer cannot be imposed without proof of a violation of the Act or of department or Board rules.
• Ward v. Wcab (sun Refining) (1991). An employer's statutory subrogation right under Section 319 has no filing time limit, and laches did not apply where the employer was not told of the settlements until shortly before it filed. A referee may order a claimant or dependent to make an out-of-pocket lump sum payment to the employer or its insurer.
• Peeples v. Wcab (foster Wheeler) (1990). An employer's statutory right of subrogation to a worker's third-party recovery under Section 319 is absolute, has no filing time limit, and is not defeated by laches absent employer knowledge of the settlement or prejudice to the claimant. A petition filed under the wrong section is treated as filed under the correct one.
• Maher v. Wcab (BP Oil Corp.) (1989). Under section 301(c)(2), a claimant need only prove that his disease was caused by exposure to the hazard and that he was exposed after June 30, 1973; he need not prove that post-1973 exposure was itself a causative factor, and a referee cannot find as fact that the disease was caused entirely by earlier exposure.
• Colombo v. Johns-Manville Corp. (1984). Under the Federal Tort Claims Act the United States is treated like a private Pennsylvania shipyard employer, so the Pennsylvania Workmen's Compensation Act bars third-party contribution and indemnity tort claims against it, and Pennsylvania's dual capacity doctrine does not apply. The vessel-owner negligence claim under LHWCA section 5(b) survives because the state exclusivity bar does not apply to it, and the Tucker Act does not reach the implied-warranty claims.
• Asbestos Insul. Co. v. Wcab (McGOVERN) (1983). Section 301(c)(2) is satisfied by competent medical testimony that the claimant was exposed to the hazard after June 30, 1973 and that the whole of his exposure caused the disability or death. A physician need not separate the causal contribution of exposure in different periods.
• Christman v. Dravo Corp. (1983). Under 33 U.S.C. § 905(a), an employee or his representative may sue the employer at law only if the employer failed to secure payment of compensation; an employer that has secured insurance but contests a particular claim remains protected by the Act's exclusivity provision.
• Gill v. Pacor, Inc. (1982). A supplier's duty to warn the ultimate user of an asbestos product cannot be avoided by pointing to the employer's failure to provide a safe workplace. An employer's conduct is not a superseding cause unless it was so extraordinary that it could not reasonably have been foreseen.
• Neal v. Carey Canadian Mines, Ltd. (1982). Suppliers of raw asbestos fiber owe a non-delegable duty to warn the plant workers who use it, even where the employer knows the hazard. An employer's deliberate failure to warn former workers, after being urged to do so, can be an intentional tort outside workers' compensation exclusivity. Punitive damages may be awarded to successive plaintiffs for outrageous conduct toward each.
• Tysenn v. Johns-Manville Corp. (1981). Mesothelioma falls within Pennsylvania's Occupational Disease Act, so compensation is the employee's exclusive remedy against his employer, and the intentional-tort exception did not apply on these facts. For the 1975 amendment barring contribution claims against employers, the disease "occurred" when it was or should have been discovered.

Rhode Island

• Carson v. 3M Company (2018). Mesothelioma is an occupational disease under the Rhode Island Workers' Compensation Act, and an employee who did not preserve his common-law right to sue is barred by the exclusivity provision from suing his employer; a derivative loss of consortium claim fails with it.
• Nichols v. Allis Chalmers Product Liability Trust (2018). Under Rhode Island's ad hoc duty analysis, an employer owes a duty to a member of an employee's household who is exposed to asbestos dust on the employee's work clothes, where the harm was foreseeable. At summary judgment, the frequency, regularity, proximity test is met by evidence of regular exposure and an expert opinion on cumulative exposure.
• Cera v. AW Chesterton Company (2012). An employee who has not preserved his common-law rights under the waiver-of-rights provision is barred by the exclusivity provision from suing his employer in tort where workers' compensation benefits are appropriate. The 'casual employee' exception applies only if the employment is both casual and outside the employer's trade or business.
• Gallagher v. National Grid Usa/narragansett Electric. (2012). Under the last-employer rule for occupational diseases, the last employer is liable only if the work was of the same nature and type in which the disease was contracted, meaning conditions likely to cause the disease, or if it aggravated the disease. Job title alone is not enough, and speculative testimony about asbestos at the last employer is not probative.

South Carolina

• Keene v. Cna Holdings, LLC (2021). Whether work is part of an owner's trade, business or occupation under S.C. Code § 42-1-400 turns first on the owner's legitimate business decision about the scope of its business, not on whether the work was merely important or necessary. An owner that outsources work for legitimate reasons, and not to avoid insurance costs, does not make the contractor's worker its statutory employee.
• Keene v. Cna Holdings, LLC (2019). A maintenance contractor's employee is not a statutory employee of the plant owner under S.C. Code § 42-1-400 merely because the maintenance was important or essential to the owner's operations; the work must actually be part of the owner's own trade, business or occupation.
• Matthews v. EI DU Pont DE Nemours and Company (2018). A contractor's employee is a statutory employee of the owner under S.C. Code § 42-1-400 if his work meets any one of three tests: important to the owner's business, necessary and integral to it, or previously done by the owner's employees. The Act's two-year repose period for pulmonary occupational disease did not take the claim outside the exclusive-remedy provision.

Tennessee

• Segroves v. Union Carbide (2015). Res judicata does not bar a later asbestos-related disease claim when the earlier complaint and settlement order referred only to unspecified breathing impairments and the record does not show the asbestos disease was at issue or detectable; an agreement that prospectively relieves an employer of workers' compensation obligations is unenforceable.
• Lively EX rel. Lively v. Union Carbide Corporation (2013). When an employee is incapacitated from work by an occupational disease and later dies of that same disease, the date of death is not a new and separate date of injury, so a dependent's death benefits are calculated under the maximum benefit in effect on the earlier date of incapacity, less amounts already paid to the employee.
• Kelley v. Union Carbide Corporation (2011). A surviving spouse's workers' compensation death-benefit claim is independent of the employee's lifetime settlement, and the word "barred" in Tenn. Code Ann. § 50-6-306(a) refers only to the time limit for filing, not to a bar created by the employee's settlement.
• Nye v. Bayer Cropscience, Inc. (2009). Tennessee has not extended the learned intermediary or sophisticated buyer doctrine beyond medical products, so a jury may not be told that a seller cannot be liable for failure to warn because the employer already knew the danger. Combining that instruction with a proper sole-cause instruction confused the jury.
• Satterfield v. Breeding Insulation Company, Inc. (2007). An employer owes a duty of care, under Tennessee's foreseeability-based balancing test, to members of employees' households who routinely come into close contact with contaminated work clothing over an extended period. The duty does not extend to people whose contact is sporadic or unpredictable.
• Correll v. EI DuPont de Nemours & Co. (2006). An employer's statutory subrogation lien under Tenn. Code Ann. § 50-6-112(c) reaches a surviving spouse's wrongful death recovery, including one obtained under Georgia law, but not the portion recovered for the spouse's own loss of consortium claim. The Social Security old-age offset also applies to workers' compensation death benefits.
• Lynch v. CF Industries, Inc. (2004). A party claiming workers' compensation death benefits must prove by a preponderance of the evidence, usually through expert medical testimony, that the death was due to a compensable injury or occupational disease; a trial court may credit one expert over another.
• Mackie v. Young Sales Corp. (2001). An employee's voluntary retirement does not preclude workers' compensation benefits for an occupational disease arising out of and in the course of employment, and benefits may be computed on the maximum weekly rate where the record supports it.
• Ingram v. Aetna Cas. and Sur. Co. (1994). Under Tennessee's workers' compensation statutes, an employee with an occupational asbestos disease is entitled to medical benefits for reasonably required care, including periodic monitoring exams, even if not disabled. The limitations period for a disability claim runs only once the employee knows the disease affects his capacity to work to a compensable degree.

Texas

• Bell Helicopter Textron, Inc. v. Dickson (5th District, 2019). Gross negligence must be shown by clear and convincing evidence that the employer's act involved an extreme degree of risk viewed prospectively and that the employer was actually, subjectively aware of that risk to the plaintiff. General knowledge of asbestos hazards, and later studies, did not show Bell's awareness of an extreme risk to this worker.
• Jefferson County v. Farris (2018). Notice under the Tort Claims Act runs from the last incident essential to the claim, which in a latent asbestos disease case is the diagnosis or symptom manifestation. The Local Government Code presentment requirement is not a jurisdictional statutory prerequisite under Gov't Code section 311.034.
• Goodyear Tire & Rubber Company v. Rogers (5th District, 2017). Gross negligence can rest on an employer's awareness that low-level asbestos exposure can cause mesothelioma, without knowledge of the particular dose. Under the Texas exemplary damages cap, pecuniary loss findings count as economic damages only to the extent evidence shows actual monetary loss.
• Abutahoun v. Dow Chemical Company (2015). Chapter 95 of the Texas Civil Practice and Remedies Code applies to all independent contractor negligence claims against a property owner, including claims based on the owner's own contemporaneous negligent activity, when the claim arises from the condition or use of an improvement the contractor constructs, repairs, renovates, or modifies.
• Darden v. Union Carbide Corporation (14th District, 2010). Following Ross v. Union Carbide (which overruled Perez v. Todd Shipyards), the court rejected the arguments that a pre-death release could not cover a later gross negligence claim, that it was limited to product liability claims, or that it was void as covering work-related injuries.
• Ross v. Union Carbide Corporation (14th District, 2009). A survivors' exemplary-damages claim under Texas Constitution art. XVI, § 26 or Labor Code § 408.001(b) is derivative of the Wrongful Death Act, so a worker's pre-death release of the tortfeasor bars it. An invalid workers' compensation waiver in a broad release can be severed without voiding the rest.
• Union Carbide Corporation v. Smith (1st District, 2009). A premises owner under Tex. Civ. Prac. & Rem. Code ch. 95 is liable only if it exercised or retained control over the manner of the contractor employee's work; supplying specifications and materials is not enough. The workers' compensation exclusive remedy bars claims against an employer for pre-merger exposure as the predecessor's employee, and the dual-persona doctrine does not avoid it.
• Exxon Mobil Corporation v. Altimore (14th District, 2006). Under Texas foreseeability principles, an employer owes no duty to an employee's spouse for take-home asbestos exposure before the risk was foreseeable; unreliable case reports did not make the risk foreseeable, and the risk became foreseeable to Exxon only in 1972, when OSHA regulations put it on notice.
• Brown & Root, Inc. v. Moore (6th District, 2002). A corporation can be liable for exemplary damages for malice if it commits, authorizes or ratifies malicious acts, or acts through a vice principal. Circumstantial evidence of knowledge of a serious risk and a failure to warn or protect workers can legally support a malice finding.