Insurance Coverage in Asbestos Cases

Decisions in our library in which the court ruled on insurance coverage: 245 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.

Louisiana

• Legendre v. Louisiana Ins. Guaranty Association (2024). A joiner that assembled wallboard for a shipyard is not a manufacturer, and veil-piercing to treat a parent as its subsidiary's alter ego is an extraordinary remedy requiring more than shared officers and ownership. Fact questions on control, holding out and scale preclude summary judgment on professional vendor status, and the first-to-file rule requires substantial overlap between cases.
• Lyles v. K&b Louisiana Corporation (2024). When a plaintiff seeks after removal to join a non-diverse defendant, the court weighs the Hensgens factors under 28 U.S.C. § 1447(e), and may deny joinder where the amendment's purpose is to defeat diversity and the plaintiff was dilatory. An amendment is also futile when it does not plead a valid Louisiana direct action against the insurer.
• Matherne v. Huntington Ingalls Incorporated (2024). An assumption of another's obligation under La. Civ. Code arts. 1821-1823 must be explicit and in writing, and buy-back agreements that release and void insurance policies do not assume the insurers' obligations to third parties.
• Ragusa v. Louisiana Insurance Guaranty Association (2024). Claims against LIGA vest when the insurer is declared insolvent, so the liquidator's claim-filing deadline applies. A wrongful death claim is a separate cause of action from the survival action, so a timely survival action does not save a wrongful death claim filed after the deadline.
• Hotard v. Avondale Industries, Inc. (2023). A motion to reconsider an interlocutory order is judged under Rule 54(b), looking to changed law, new evidence or manifest error. A third-party indemnity claim under a contract covering claims arising directly or indirectly from the vendor's performance states a plausible claim, and the vendor's earlier tort settlement with the plaintiffs does not affect it.
• Legendre v. Louisiana Insurance Guaranty Association (2023). Under Louisiana's LIGA law, a claim filed after the court-set deadline for claims against an insolvent insurer's liquidator is not a "covered claim," so LIGA has no obligation to pay it, and the Louisiana Supreme Court has rejected a constitutional challenge to this rule.
• Marsh v. Continental Insurance Company (2023). In a Louisiana Direct Action Statute case against an insurer, discovery about the insured's history, operations and knowledge is irrelevant to the claim against the insurer, and a very large set of repetitive requests for admission is disproportionate to the needs of the case.
• Marsh v. Continental Insurance Company (2023). In maritime asbestos cases, the liability of non-settling defendants is calculated in proportion to the jury's allocation of responsibility rather than by a pro tanto credit, which applies only when fault cannot be fairly apportioned. Maritime asbestos litigation is not 'non-ordinary' so as to justify a departure from this rule.
• Matherne v. Huntington Ingalls Incorporated (2023). Rule 54(b) certification of a partial final judgment is granted only rarely, when delay would cause hardship or injustice that immediate appeal would relieve; a dismissed party's wish to avoid monitoring the docket, with claims still intertwined with remaining issues, is not enough.
• Ragusa v. Louisiana Guaranty Insurance Association (2023). The LHWCA applies as it existed when the disease manifested, and its exclusivity provision preempts a covered worker's state negligence and intentional tort claims against his employer. Awareness of asbestos risk does not show that mesothelioma was substantially certain to result.
• Ragusa v. Louisiana Guaranty Insurance Association (2023). Under Louisiana's Net Worth Exclusion, LIGA is not obligated to pay claims or provide a defense under an insolvent insurer's policy when the named insured is a high net worth insured. Whether the exclusion also reaches the named insured's executive officers remained a genuine factual and legal question.
• Rivet v. Huntington Ingalls Incorporated (2023). Under Rule 15(a)(2), leave to amend should be granted absent a substantial reason to deny it, and any delay or prejudice from related litigation elsewhere can be cured by staying the added claims rather than denying amendment.
• Robichaux v. Huntington Ingalls Inc. (2023). Insurance policy documents bearing the insurer's logo and describing the policies can be authenticated by their distinctive characteristics under Rule 901(b)(4). Documents prepared before 1998 are not excluded as hearsay under Rule 803(16), and duplicates are admissible under Rule 1003 absent a genuine question about the original's authenticity or fairness.
• Robichaux v. Huntington Ingalls Inc. (2023). Avondale's contribution claims, which stand in the shoes of the plaintiffs by subrogation, were barred by res judicata because Robichaux had settled and released asbestos claims, including future mesothelioma claims, against the cross defendants. A defendant is also entitled to summary judgment where the plaintiff offers no evidence of exposure to that defendant's products.
• Allen v. Eagle Inc. (4th Circuit, 2022). Conflicting testimony about exposure is a credibility question that cannot be resolved on summary judgment. An expert's reliance on assumptions about frequency, duration and proximity of exposure goes to the weight of the opinion, not its admissibility under Daubert.
• Becnel v. Lamorak Insurance Company (2022). Under Louisiana law, an insurer bears the burden of proving an exclusion applies, and an insurer is liable only for exposures during its policy period. Conflicting expert testimony on whether the exclusion was in the policy, and evidence of exposure to Eagle insulation during the policy period, create fact issues that cannot be resolved on summary judgment.
• Cortez v. Lamorak Ins. Co. (2022). The LHWCA preempts state-law tort claims, including take-home exposure claims, by a covered maritime worker against his employer and the employer's insurer, and the date the disease manifested determines which version of the LHWCA applies. Plaintiff also failed to produce evidence of an intentional tort under Louisiana's substantial-certainty standard.
• Cortez v. Lamorak Insurance Company (2022). Under Rules 403 and 701, the court excluded prejudicial labels and marginally relevant evidence, but allowed lay witnesses who worked with asbestos-containing products to infer that the dust from them contained asbestos.
• Cortez v. Lamorak Insurance Company (2022). An excess insurer's prediction that damages will not reach its policy threshold is not grounds for summary judgment, because the scope of liability and the amount of damages are factual issues for trial.
• Cortez v. Lamorak Insurance Company (2022). Under Louisiana law, a seller is a professional vendor only if it holds the product out as its own and operates with sufficient size, volume and merchandising practices; co-parties not adverse to the movant lack standing to oppose its summary judgment motion.
• Cortez v. Lamorak Insurance Company (2022). Under Louisiana law a duty to household members for take-home exposure can exist before 1972 without an OSHA rule, and Article 2317 custody can be shared. A seller is a professional vendor, liable like a manufacturer, only if it held the product out as its own and had sufficient size and volume of sales.
• Cortez v. Lamorak Insurance Company (2022). A motion seeking review of an order granting leave to file a supplemental answer is moot where the defendant later filed a timely answer to an amended complaint that did not require leave and that responded to new matters raised in it.
• Cortez v. Lamorak Insurance Company (2022). Punitive damages under former Louisiana Civil Code article 2315.3 were available only for conduct from September 1984 to April 1996, and an insurer is liable only for exposures during its policy period, so an insurer whose coverage ended before September 1984 cannot be liable for them.
• Cortez v. Lamorak Insurance Company (2022). Under Louisiana law a plaintiff must show significant exposure to the defendant's asbestos product, and a deceased father's out-of-court statements about where he worked are hearsay not covered by the Rule 804(b)(4) family-history exception. A manufacturer has no duty to warn of dangers of a third party's asbestos insulation it did not make, sell, specify or recommend, but may be liable if it supplied or specified asbestos gaskets.
• Cortez v. Lamorak Insurance Company (2022). Under Louisiana law, an asbestos claimant must show significant exposure and that the exposure was a substantial factor in causing his injury. A short period of exposure does not by itself entitle a defendant to summary judgment. Deposition testimony from another proceeding can be considered on summary judgment if it could be presented in admissible form at trial.
• Gooding v. Liberty Mutual Ins. Co. (2022). Under Louisiana law an insurer is liable for asbestos injuries only if the injured person was exposed to harmful conditions during the policy period, and speculation that he was present at the insured's premises during that period cannot defeat summary judgment.
• Matherne v. Huntington Ingalls Incorporated (2022). Under the Louisiana Insurance Guaranty Association law, a claim made after the claim filing deadline set by the insolvent insurer's liquidation court is not a 'covered claim' for which LIGA must pay. A claim against LIGA vests when the insurer becomes insolvent, not when the exposure occurred.
• Morales v. Anco Insulations Inc. (2022). The Longshore and Harbor Workers' Compensation Act preempts state-law tort claims against a covered employer, its executive officers and its insurers for an employee's occupational asbestos disease, because allowing them would undermine the Act's compensation-for-immunity exchange.
• Reulet v. Lamorak Ins. Co. (2022). An insurer's liability under the exposure theory is co-extensive with its insured's liability for harmful exposure during the policy period. Plaintiffs must offer evidence beyond speculation that the decedent was near the insured's products during that period, even if the exposures were slight.
• Reulet v. Lamorak Ins. Co. (2022). A party's answers to interrogatories and requests for admission, even from earlier lawsuits, are competent summary judgment evidence. Evidence of that kind can create a genuine dispute over whether an insurance policy existed, a point on which the party claiming coverage bears the burden.
• Reulet v. Lamorak Ins. Co. (2022). Where a siege of tort claimants threatens the debtor's estate beyond policy limits, insurance proceeds may be property of the bankruptcy estate, so the automatic stay can apply to direct actions against the debtor's insurers; the bankruptcy court is the best forum to decide this first.
• Sanchez v. Anco Insulations, Inc. (2022). Under Louisiana law, a plaintiff must show significant exposure to the defendant's product and that the exposure was a substantial factor in causing the injury; with no opposing evidence, summary judgment is required.
• Sentilles v. Huntington Ingalls, Inc. (2022). A party who fails to oppose a summary judgment motion is treated as admitting it cannot prove its claims. Under Louisiana law, an asbestos plaintiff must show exposure to the defendant's product and that the exposure was a substantial cause of his injury.
• St. Romain v. Delta Southern Co., Inc. (1st Circuit, 2022). Mesothelioma is a bodily injury by disease, not by accident, under the employer's liability policy. The policy's 36-month exclusion therefore barred a claim first filed decades after the policy period ended, and the policy language, though poorly drafted, was not ambiguous.
• Stansbury v. McCARTY Corporation (2022). Under Louisiana's Canter test, a non-employee third party may sue a corporation's executive officers for negligence, and the relevant delegation is from the corporate defendant to its officers; the complaint must plead facts, not conclusions, showing delegation, personal fault and a personal duty to the plaintiff.
• Arrowood Indemnity Company v. ST Joseph's Roman Catholic Church (2021). Under the Fifth Circuit's seven-factor test, a federal court should keep a declaratory judgment action when the insurer was not a party to the pending state suit and could not have had its coverage issues litigated there.
• Cortez v. Lamorak Insurance Co. (2021). A federal court has inherent discretionary power under Landis to stay an entire case, weighing hardship, prejudice and judicial economy, and an insurer's state-court liquidation stay must be honored. Louisiana's expedited-trial article is procedural and does not apply in a case removed under the federal officer removal statute.
• Falcone v. Anco Insulations, Inc. (2021). A federal court may stay claims against an insurer placed in state liquidation to avoid interfering with the state proceeding, and may use its inherent authority under the Landis factors to stay the claims against all other defendants when the claims arise from the same exposure.
• Gooding v. Liberty Mutual Insurance Co. (2021). A federal court may use its discretion to stay claims against an insolvent insurer and its insureds out of deference to state liquidation proceedings, and severing claims against only the insurer and its insureds is inappropriate where it would prejudice them and risk inconsistent verdicts.
• Hotard v. Avondale Industries, Inc. (2021). A federal court may stay a case against an insurer in state liquidation, and under its inherent power and the Landis factors may stay the claims against all other defendants too. Severing the insurer and its insureds was inappropriate because of prejudice, the risk of inconsistent verdicts and lost judicial economy.
• Jeter v. Ameron International Corporation (4th Circuit, 2021). In a long-latency asbestos claim, an insurer's duty to defend under occurrence-based policies covering only injury during the policy period is limited to its policy periods, so defense costs are prorated by time on the risk. The insured bears the share for uninsured periods, and the 'Other Insurance' clauses do not apply to non-concurrent policies.
• Sanchez v. Anco Insulations, Inc. (2021). A Louisiana loss of consortium, service, and society claim is derivative and requires allegations that another person was injured. Under Louisiana's exposure theory, an insurer is liable only for exposure during its policy period.
• St. Romain v. Delta Southern Co., Inc. (1st Circuit, 2021). A final appealable judgment must contain decretal language naming the parties and the relief granted or denied. A trial court cannot amend a defective judgment after the order of appeal is signed unless the appellate court gives it authority, so the appellate court lacks jurisdiction over a non-final judgment.
• Waguespack v. Avondale Industries, Inc. (2021). Where an insurer defendant is insolvent and subject to a six-month stay under La. R.S. 22:2068(A), the court may stay the entire case, because letting the rest proceed risks piecemeal adjudication; the court would do so under its discretion even if the statute does not apply in federal court.
• Courville v. Lamorak Insurance Company (4th Circuit, 2020). Insurers and insureds cannot retroactively annul liability policies by a post-injury agreement, and such an agreement is not enforceable against an injured third party. A policy's claims-made-type provision limiting coverage for disease claims to those made within 36 months of the policy period's end is a permissible limit under the Direct Action Statute.
• Gooding v. Liberty Mutual Insurance Co. (2020). A party moving for summary judgment on an issue where the other side bears the burden of proof may succeed by showing an absence of evidence; here, undisputed affidavits showed no policies were issued, and the cross-claimants offered no contrary evidence.
• Bitco General Insurance Corporation V Dash Building Material Center, Inc. (2019). The Brillhart/Wilton doctrine applies only to purely declaratory actions; a request for reimbursement of defense costs is coercive monetary relief that triggers Colorado River analysis. Under Colorado River, abstention requires parallel state and federal proceedings, and these were not parallel.
• Courville v. Lamorak Insurance Company (4th Circuit, 2019). A post-injury settlement between an insurer and its insured that limits or annuls coverage cannot be enforced against third-party tort victims, because Louisiana public policy bars post-injury reformation of coverage and La. R.S. 22:1262 voids retroactive annulment of liability policies.
• Savoie v. Huntington Ingalls (2019). Wrongful death claims by the survivors of a shipyard worker covered by the LHWCA are barred by the Act's exclusivity provisions, and the court did not need to decide whether an intentional tort exception exists because the intentional tort claims had already been dismissed.
• Chevron Oronite Company LLC v. Jacobs Field Services North America, Inc. (2018). Potential rather than actual liability was the standard because Chevron Oronite tendered the defense and Jacobs, which had a fair opportunity to defend and join settlement talks, refused. The court did not decide whether a written contract alone would suffice. A phrase covering attorney's fees "relating to any of the foregoing" applies to every preceding disjunctive clause.