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.

Texas

• Vaughn v. Ford Motor Co. (11th District, 2002). Under Illinois law, a plaintiff must show frequent, regular and proximate exposure to each particular defendant's asbestos product (the Thacker test); without such evidence, directed verdicts for each brake manufacturer are proper, and an erroneous expert exclusion is harmless if the experts' testimony would not bear on that gap.
• Perez v. Todd Shipyards Corp. (1999). A surviving family's gross negligence claim for exemplary damages under the Texas Constitution and Labor Code is not derivative of the decedent's rights. Because the children had no pre-petition relationship with the debtor, they held no bankruptcy 'claim' that was discharged before the plan was confirmed.

Utah

• Boynton v. Kennecott Utah Copper, LLC (2021). Premises operators who take affirmative acts that bring workers into contact with asbestos owe a duty of care to prevent take-home exposure to the workers' co-habitants. A party that contractually requires use of a material, specifies means and methods of work, or takes responsibility for dust control can retain control over its contractor.
• Luckau v. Board of Review (1992). Under the 1988 Last Injurious Exposure Rule, an employer is liable if the employee was exposed to substances that did or could have contributed to the disease in an amount sufficient to cause or contribute to it to any degree; the statute does not require a substantial dose or lengthy duration.
• Tisco Intermountain v. Industrial Com'n of Utah (1987). Under the last-injurious-exposure rule, an award against an employer must rest on competent evidence of exposure during employment with that employer. An unsworn offer of proof is hearsay and cannot support the award, and liberal construction of the statute cannot fill the gap.

Virginia

• Quisenberry v. Huntington Ingalls Incorporated (2018). Under general negligence principles, an employer whose conduct allegedly let asbestos fibers be regularly carried from the workplace to an employee's home owes a duty of ordinary care to household members within that recognizable risk of harm. Whether the employer actually caused the harm is a question of proof, not duty.
• Gibbs v. Newport News Shipbuilding and Drydock Company (2012). The Virginia Workers' Compensation Act's exclusivity bar does not apply to an active-duty service member's estate, because the Navy could not be subject to the Act. The Navy was therefore not the Shipyard's statutory employer, and the member had no right to compensation under the Act.
• Chesapeake & Potomac Tel. v. Williams (1990). For an occupational disease, the average weekly wage under Code § 65.1-6 is based on the 52 weeks of wages from the last employment that exposed the claimant to the cause of the disease, not the wages at the date of diagnosis.
• Roller v. Basic Const. Co. (1989). In an occupational disease case, the employer's and employee's rights under the Workers' Compensation Act become fixed when the diagnosis is first communicated to the employee, so the statute in effect on that date governs. A repealed five-year limit from last injurious exposure therefore created no vested right of repose and the 1983 amendment applied without unconstitutional retroactivity.
• Caudle-Hyatt, Inc. v. Mixon (1979). The conclusive presumption of total dependency under Code § 65.1-66 arises once actual dependency, even if only partial, is shown. Under Code § 65.1-52, an exposure is injurious if reasonably calculated to bring on the disease, which can be shown by actual causation or by exposure of a duration and intensity that generally causes the disease.

Washington

• Cockrum v. Murphy (1st Division, 2024). The deliberate injury exception to workers' compensation immunity requires evidence that the employer had actual knowledge that injury was certain to occur; knowledge that asbestos is hazardous, or that other employees developed asbestos disease, is not enough.
• Lewis v. Washington State Department OF Labor and Industries (2nd Division, 2023). Under RCW 51.12.102 and Gorman, a worker or beneficiary who may have a claim under the Longshore and Harbor Workers' Compensation Act receives only temporary, interim state benefits, not permanent benefits. That reading does not unconstitutionally chill the jury trial right or violate equal protection.
• Cockrum v. CH Murphy/clark-Ullman, Inc. (2022). A removing defendant claiming fraudulent joinder must show by clear and convincing evidence that the plaintiff cannot state a claim against the non-diverse defendant on any theory; arguments about the strength of the plaintiff's evidence do not meet that standard.
• Atchinson v. Howmet Aerospace, Inc. (2021). Under Walston v. Boeing, asbestos exposure does not meet the Washington Industrial Insurance Act's "deliberate injury" exception because exposure is not certain to cause disease, so a plaintiff must show the employer knew he was certain to be injured.
• Behrmann v. Abb, Inc. (2021). A subcontractor that did not make or supply asbestos-containing products cannot be liable in products liability, and evidence that its employees worked on asbestos-containing equipment near the plaintiff does not alone create a genuine issue on negligence breach or causation.
• Wright v. 3M Company (1st Division, 2021). An owner does not retain control over an independent contractor's work merely by requiring compliance with safety laws and general safety rules, but an erroneous retained-control instruction did not require reversal because the verdict also rested on premises liability. RCW 4.22.060 requires settling parties to provide a copy of the proposed settlement agreement, so a reasonableness ruling made without the full agreements is an abuse of discretion.
• Casey v. Alcoa Corporation (2020). Under the WIIA's deliberate-intention exception as applied in Birklid and Walston, an employer is not liable outside workers' compensation unless it had actual knowledge that injury was certain to occur and willfully disregarded that knowledge. Awareness of asbestos risks, or of other workers' asbestos-related conditions, does not show that.
• Maxwell v. Atlantic Richfield Co. (2nd Division, 2020). Washington's construction statute of repose (RCW 4.16.300 and .310) applies to a general contractor and its insulation subcontractor for claims arising from constructing a refinery, because the refinery was an improvement upon real property. The version of the statute in effect at substantial completion governs, not later amendments.
• Kalahar v. Alcoa, Inc. (1st Division, 2015). Under Birklid and Walston, the intentional injury exception to workers' compensation immunity requires actual employer knowledge that injury was certain to occur; because asbestos exposure is not certain to cause mesothelioma or any disease, that standard is not met.
• McMann v. Air & Liquid Systems Corporation (2014). Asbestos exposure is treated as an indivisible injury, so a worker exposed both as the premises owner's employee and as a contractor's worker is barred by the Industrial Insurance Act from suing that owner. Under Washington law, exposure to a defendant's product may be shown by direct or circumstantial evidence.
• Walston v. Boeing Company (2014). An employer loses workers' compensation immunity for deliberate injury only if it had actual knowledge that injury was certain to occur and willfully disregarded that knowledge. Knowledge of a risk of injury, or even substantial certainty of injury, is not enough.
• Apcompower Inc. v. State, Department OF Labor and Industries (2nd Division, 2013). WISHA asbestos regulations apply to class I asbestos work regardless of the employer's intent or reliance on the owner's assurances, and a serious violation requires only that death or serious harm could result, not proof that workers were actually exposed.
• Long v. State Dept. OF Labor and Industries (2nd Division, 2013). A worker covered by the federal Longshore and Harbor Workers' Compensation Act is excluded from the general provisions of the Washington Industrial Insurance Act, so the state's last-injurious-exposure rule does not apply. The Department must still pay temporary, interim state benefits under RCW 51.12.102(1) while it decides which program is liable, but it need not pursue a federal claim that no longer exists.
• Walston v. Boeing Company (2nd Division, 2013). Under RCW 51.24.020 and Birklid, an employee can sue an employer despite workers' compensation exclusivity only if the employer had actual knowledge that injury was certain to occur and willfully disregarded it. Knowing that asbestos exposure raises the risk of disease, even substantially, is not knowledge of certain injury.
• Arnold v. Saberhagen Holdings, Inc. (2nd Division, 2011). Under the law of the case doctrine, a second appellate court will not revisit the first appeal's holding absent manifest error or an intervening change in law, so reversing the denial of the motion would give the plaintiffs no relief.
• Arnold v. Saberhagen Holdings, Inc. (2nd Division, 2010). A general contractor with supervisory and coordinating authority over multiple subcontractors in common work areas may owe a duty to keep those areas safe, and a landowner owes invitees, including subcontractors' employees, a duty of reasonable care as to conditions on the land such as asbestos. The federal Walsh-Healey Act creates no duty enforceable by third parties in a negligence suit.
• Rochon v. Saberhagen Holdings, Inc. (1st Division, 2007). A defendant who takes affirmative action creating an unreasonable risk of harm has a duty to prevent foreseeable injury from that risk, and foreseeability is part of the duty inquiry. Employer and landowner duties do not extend to an employee's spouse who never entered the premises.
• Campbell v. Lockheed Shipbuilding Corp. (1st Division, 2002). An employer that exposed a worker to asbestos is liable under the Longshore Act for the resulting indivisible occupational disease, and that liability is exclusive. The worker cannot sue that employer in tort as a third party for exposure that occurred while he worked for a subcontractor on the employer's premises.

West Virginia

• Bennett v. West Virginia Office OF Insurance Commissioner, W Va: Supreme Court of Appeals 2016 (2016). Dependent's benefits turn on whether the disease contributed in any material degree to the death. The agency's findings on the date of last exposure and the chargeable employer stand where no persuasive evidence challenges them.
• Lawrentz v. Constellium Rolled Products Ravenswood, W Va: Supreme Court of Appeals 2015 (2015). Where the worker had no occupational pneumoconiosis or asbestosis, his lung cancer could not be causally attributed to his occupational asbestos exposure for compensation purposes.
• Moore v. Aker Oil and Gas US, LLC, W Va: Supreme Court of Appeals 2015 (2015). A claimant seeking dependent's benefits for a death from mesothelioma must show the decedent was exposed to asbestos hazards in the course of employment in West Virginia, whether the claim is treated as occupational pneumoconiosis or as an occupational disease.
• Bayer Corporation v. Toney, W Va: Supreme Court of Appeals 2013 (2013). The court affirmed because the Board of Review's decision was not clearly a violation of constitutional or statutory provisions, not clearly the result of erroneous legal conclusions, and not based on a material misstatement or mischaracterization of the evidentiary record.
• Marlin v. Bill Rich Const., Inc. (1996). A political subdivision's immunity for claims 'covered by any workers' compensation law' does not reach claims for fear of contracting an asbestos disease when no compensation benefits would be available because the worker has no present disease. A negligent infliction of emotional distress claim based on fear of disease needs actual exposure, a medically established possibility of the disease, and real and serious distress, but not physical injury.
• Powell v. State Workmen's Compensation Com'r (1980). Lung cancer can be a compensable occupational disease under W.Va. Code § 23-4-1 even though it also occurs in the general public, and the claimant need not prove an intermediate occupational disease such as asbestosis or negate all non-occupational causes such as smoking.

Wisconsin

• Lorbiecki v. Pabst Brewing Co. (2024). Under Wisconsin's safe place statute, a property owner's duty is non-delegable, so a contractor's negligence is imputed to the owner. The punitive damages cap in Wis. Stat. § 895.043(6) is twice the plaintiff's total recoverable compensatory damages from all liable parties after statutory caps, not twice the defendant's apportioned share.
• Kilty v. Weyerhaeuser Company (2019). An interlocutory appeal from denial of a motion to dismiss on worker's compensation immunity grounds becomes moot when the district court later enters summary judgment for the appellant on the merits, and the appellant is not harmed by the earlier ruling.
• Kappel v. Weyerhaeuser Company (2018). Wisconsin's Workers' Compensation Act does not bar claims based on community or environmental asbestos exposure, and a complaint that alleges the specific diagnosis and date of death need not be dismissed for lack of specificity. The nuisance claims were time-barred, as the court had held in the related Kilty and Spatz cases.
• Kilty v. Weyerhaeuser Company (2018). Wisconsin's Workers' Compensation Act exclusivity provision does not bar claims based on community (non-workplace) asbestos exposure distinct from the employment exposure, and at the pleading stage plaintiffs need only allege that this exposure on its own substantially contributed to the injury. Nuisance claims based on emissions that ended in 1979 are barred by the statute of limitations.
• Carter v. Henry Carlson's Construction Company (2017). A pro se complaint must give fair notice of the claim under Rule 8, and an asbestos exposure claim must allege facts suggesting the plaintiff was injured or that injury is imminent.
• Pecher v. Owens-Illinois, Inc. (2017). Claims by employees whose asbestos injuries arose from their plant work are barred by Wisconsin's workers' compensation exclusive remedy, and plaintiffs cannot avoid it by recasting the injuries as off-the-job nuisance harms. Product liability does not attach to a patent holder that merely licenses a patent to a manufacturer.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Under Wis. Stat. § 893.89, a company that specified and erected a boiler is protected from suit brought more than ten years after installation unless it manufactured or produced the allegedly defective material. The statute of repose does not violate the Wisconsin Constitution's right-to-remedy provision.
• Boyer v. Weyerhaeuser Company (2016). A party seeking reconsideration under Rule 59(e) must show newly discovered evidence or a manifest error of law or fact. The rule cannot be used to relitigate old matters, raise arguments that could have been made earlier, or undo procedural failures.
• Pecher v. Weyerhaeuser Company (2016). Evidence of what the defendant knew or should have known about asbestos hazards is relevant to the nuisance claim, while evidence of occupational exposure and workers' compensation is limited or kept out of the liability phase. General, unspecific requests to exclude expert testimony or untimely evidence are denied without prejudice to specific objections.
• Boyer v. Weyerhaeuser Company (2014). Wisconsin's Workers' Compensation Act is the exclusive remedy against an employer for asbestos injury arising from employment, including exposure carried home on clothing. A mere patent licensor owes no negligence duty and is not a seller for strict liability based only on licensing a technology.
• Anderson v. Proctor & Gamble Paper Products Co. (2013). Under Wisconsin's safe place statute, a premises owner owes a heightened statutory duty to employees of independent contractors, separate from the common-law rule in Tatera. The construction statute of repose does not apply to damages sustained before April 29, 2004, and that date turns on when the injury was sustained, not when the claim accrued.
• Calewarts v. CR Meyer and Sons Company (3rd District, 2012). A merged successor to a nonemployer building owner can be sued for the owner's pre-merger safe-place liability under the dual persona doctrine despite workers' compensation exclusivity. A plaintiff opposing summary judgment need only present evidence of potential asbestos exposure, from which a jury may infer exposure.
• Tatera v. FMC Corp. (2010). A principal employer is not liable in tort for injuries to an independent contractor's employee doing the contracted work unless it committed an affirmative act of negligence or the work was extrahazardous. A failure to warn is an omission, and machining asbestos-containing friction disks is not extrahazardous because precautions can reduce the risk.
• Tatera v. FMC Corp. (2009). Strict product liability under Restatement (Second) of Torts § 402A was not extended to a company that supplied brake linings to a subcontractor's employee for grinding before final assembly. A supplier who did not manufacture a chattel can still be liable in negligence under § 388, and the Wagner exceptions for affirmative acts and ultra-hazardous materials allowed the negligence claim to proceed.
• International Paper Co. v. Labour & Indus. Rev. Com'n (2001). Under the statutes in effect in 1983, the twelve-year limit for a dependent's death benefit claim runs from the worker's death, not the injury. The earlier Kohler and Weissgerber decisions no longer control because the statute they relied on was amended.