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

• Sheppard v. Liberty Mutual Insurance Company (2017). Under Louisiana law, a workers' compensation insurer that inspects its insured's workplace owes no duty to the insured's employees for workplace safety where the policy language permits but does not require inspections and disclaims any undertaking for safety.
• Blow v. OneBEACON America Insurance Company (4th Circuit, 2016). The 1989 amendment adding "only" to the Direct Action Statute's venue provision is interpretive and procedural and applies to causes of action arising before it, so venue exceptions do not apply; when venue is improper, transfer rather than dismissal is required unless the plaintiff knowingly filed in the wrong venue.
• Boudreaux v. Bollinger Shipyard (4th Circuit, 2016). A trial court does not abuse its discretion in excluding an expert's causation opinion under Daubert-Foret when the proponent offers no independent evidence that the methodology is generally accepted. Without that expert, plaintiffs cannot prove cause-in-fact and summary judgment is proper.
• Coleman v. Anco Insulations, Inc. (2016). A co-defendant may oppose another co-defendant's summary judgment motion under Rule 56(d) even without a crossclaim, and a summary judgment motion filed before discovery begins is premature.
• Vedros v. Grumman (2015). Deposition testimony from a witness who has since died is admissible against a party under Federal Rule of Evidence 804(b)(1) when a predecessor in interest, here another insurer of the same company, attended and had a similar motive to develop it. Rule 32(a)(8) of the Federal Rules of Civil Procedure also allows such use where the Rules of Evidence permit it.
• Vedros v. Grumman (2015). Buy-back agreements that voided insurance policies as if never issued did not show Avondale assuming its insurers' obligations to third parties under La. C.C. art. 1821, so no claim arose under articles 1821-1823.
• Comardelle v. Pennsylvania General Insurance Company (2014). Buy-back agreements that released and voided the insurers' policies did not amount to an explicit, clear written assumption by Avondale of the insurers' obligations, so Avondale was not liable under Louisiana Civil Code articles 1821-1823. Plaintiffs also could not claim as third-party beneficiaries of policies that were dissolved before they made any claim.
• Landry v. Columbia Casualty Company (2014). A non-diverse defendant is fraudulently joined when the plaintiff cannot establish a cause of action against it, and fraudulently joined defendants need not consent to removal. Letters from defense counsel can be an "other paper" that starts a new removal period, because the voluntary-act rule does not apply to fraudulent joinder.
• Morvant v. Maryland Casualty Company (2014). Colorado River abstention requires parallel state and federal actions with substantially the same parties and issues, and exceptional circumstances; a federal direct-action suit on insurance coverage against insurers who were not parties to the state liability suit is not parallel, and a stay under inherent power cannot bypass that test.
• Cook v. Asbestos Corporation Ltd. (5th Circuit, 2013). Under amended La. C.C.P. art. 966, only evidence formally admitted at the summary judgment hearing may be considered, including on de novo appeal; evidence merely attached to the motion or opposition is not considered.
• Francis v. Union Carbide Corporation (4th Circuit, 2013). Summary judgment was improper in a take-home asbestos case where the record showed the father worked at a shipyard where asbestos materials were used and the plaintiff was around his dusty work clothes, creating genuine issues of material fact on exposure.
• Marcel v. Delta Shipbuilding Co. (4th Circuit, 2010). Under the law in effect when Delta dissolved in 1946, dissolution did not extinguish an accrued cause of action, so it did not bar a direct action against the dissolved corporation's insurer. The 1988 direct action amendments apply only to causes of action accruing on or after January 1, 1989.
• Marcel v. Delta Shipbuilding Company (4th Circuit, 2010). Under the pre-1969 Louisiana corporate law, a corporation's dissolution did not extinguish an accrued cause of action, only the right to sue the dissolved corporation itself, so the claim could still be brought directly against the corporation's former insurer.
• Marchand v. Asbestos Defendants (4th Circuit, 2010). Under Cole v. Celotex's significant exposure test, a long-latency asbestos claim accrues when the repeated exposure occurs, so the survival claim accrued in 1943-45, before the 1989 Direct Action Statute amendments and the 1969 corporate-law cutoff. The wrongful death claim accrues at death and is subject to the peremptive bar on claims against dissolved corporations.
• Tabor v. Anco Insulations, Inc. (3rd Circuit, 2008). An insurer must defend unless the underlying petition unambiguously excludes coverage, and the allegations are read liberally. Under the policy's defense clause, the insured can recover only the costs of defending the underlying claims, not the costs of pursuing claims against others.
• Delancey v. Chicago Insurance Co. (2004). In a direct action against an insurer, the insurer is deemed a citizen of the insured's state under 28 U.S.C. § 1332(c), even if the insured's corporate charter was later revoked. Supplemental jurisdiction under § 1367 cannot by itself support removal.
• Hamilton v. Anco Insulation, Inc. (1st Circuit, 2003). A policy condition requiring a disease claim within thirty-six months after the policy period is a suspensive condition, and it is not an impossible condition merely because it was impossible to meet on the facts of one case with a long latency period; impossibility under the Civil Code means no one could ever bring about the event.
• Hoerner v. Anco Insulations, Inc. (4th Circuit, 2002). In Louisiana asbestos cases a defendant is liable only if the plaintiff's exposure to its products was a substantial factor, shown by frequent and regular exposure. An executive officer is liable only with a personal duty to provide a safe workplace, including some control over purchasing equipment and supplies.
• Cole v. Celotex Corp. (1992). In long-latency occupational disease cases, pre-Act law applies when significant tortious exposures occurred before the comparative fault act took effect, and contribution among defendants is governed by that same law. Coverage is triggered by exposure during the policy period, and a plaintiff may recover under each triggered annual policy.

Maine

• Godbout v. WLB Holding, Inc. (2010). The three-year repose period for claims against a voluntarily dissolved corporation (13-C M.R.S. § 1408(3)) is a reasonable procedural limit that does not violate the Maine Constitution's open courts provision, and it bars claims regardless of any remaining insurance proceeds.

Maryland

• Rossello v. Zurich American Insurance Company (2020). Where continuous bodily injury triggers multiple CGL policy periods, the insurer's indemnity obligation is prorated by its time on the risk, and the insured bears the share for periods it chose not to insure, unless insurance was unavailable. The "all sums" joint-and-several approach is rejected.
• National Union Fire Insurance Company OF Pittsburgh, PA v. Porter Hayden Company (2014). Under Maryland law, an insurer that was notified of claims and chose not to respond cannot rely on a voluntary obligation or consent-to-settle provision to deny coverage, but it may still challenge the reasonableness of the settlements. The insurer has the burden of production and the insured has the ultimate burden of persuasion on reasonableness.
• National Union Fire Insurance Company OF Pittsburgh, PA. v. Porter Hayden Company (2014). Expert testimony is excluded under Rule 702 when it rests on 'logic' and experience without reliable methodology or sufficient facts, or when it applies a legal rule the court has rejected. Challenges based on bias or data limits go to weight, not admissibility.
• National Union Fire Insurance Company OF Pittsburgh v. Porter Hayden Company (2005). Under Maryland law, coverage for asbestos bodily injury claims is triggered on exposure, exposure-in-residence and manifestation, so every policy on the risk in that span is triggered. Allocation among triggered policies is pro rata by time on the risk, and injury occurring after operations were completed is subject to the aggregate limits of policies then in effect, following In re Wallace & Gale, but fact questions remained on when Porter Hayden's operations were completed.
• Mitchell, Inc. v. Maryland Casualty (1991). Under a standard form comprehensive general liability policy, "bodily injury" from asbestos occurs when fibers are inhaled and retained in the lungs, so coverage is triggered at a minimum by exposure during the policy period, not only when disease manifests.

Massachusetts

• Honor v. Johnson & Johnson (2019). A defendant removing on the basis of a non-party supplier's bankruptcy must show 'related-to' jurisdiction; possible indemnification, shared-insurance and identity-of-interest arguments did not establish it, and equitable considerations also favored remand.
• Cabot Csc Corporation v. Aearo Technologies LLC (2017). Under New York law, an unambiguous contract term is enforced by its plain meaning, and the term "silica" in the asset transfer agreement means silicon dioxide, including the silica in coal mine dust. The broad "any liability" retention also placed all liability for those claims on the seller without allocation.
• Graphic Arts Mutual Insurance Co. v. DN Lukens, Inc. (2013). Under Boston Gas, progressive-injury claims such as asbestos disease are allocated pro rata by time on the risk, with the insured bearing uninsured periods, using a continuous trigger; an insurer's reservation of rights does not oblige it to cede the defense or bar allocation of uninsured periods to the insured.
• Eagle-Picher Ind. v. American Employers'ins. (1989). When an insurer fails to prove that claim-by-claim review of underlying asbestos claims is feasible, stare decisis applies and the First Circuit's six-year presumptive rollback from diagnosis fixes the policy attachment date for asbestosis and pleural claims.
• Eagle-Picher Industries v. Liberty Mut. Ins. Co. (1981). Under these occurrence-based liability policies, exposure to asbestos results in bodily injury only when it produces clinically evident, diagnosable disease, so coverage is triggered at manifestation, measured by the date of diagnosis or, if none, the date of death, with no pro rata apportionment.

Michigan

• Ins. Co. of No. Am. v. Forty-Eight Insulations (1978). Under occurrence-based liability policies, asbestos-related bodily injury occurs when fibers injure lung tissue after exposure, not when disease manifests, so every insurer on the risk during the exposure period must defend and indemnify, with costs apportioned by years of coverage.

Minnesota

• In re Api, Inc. (2005). A party objecting to Chapter 11 plan confirmation must satisfy constitutional and prudential standing for each issue it raises, and § 1109(b) does not override that requirement. A § 524(g) asbestos trust plan that preserves insurers' pre-petition rights and substitutes the trust as insured does not impair those rights.
• Crepeau BY Crepeau v. Krost Insulation Co. (1983). Liability falls on the insurer covering the employer at the time of the employee's last substantial asbestos exposure. A surviving spouse's dependency benefits are based on the daily wage at the time of the injury, and a full-time employee who deliberately limited his earnings is still treated as full-time under the statute.

Missouri

• Barnes v. Athene Annuity & Life Assurance Company (Western District, 2023). An employer asserting workers' compensation exclusivity for mesothelioma under section 287.200.4 must show it had valid insurance coverage for the employee's mesothelioma injury in effect on the date the workers' compensation claim was filed. An affidavit from someone without personal knowledge of the policy cannot authenticate it on summary judgment.
• Hegger v. Valley Farm Dairy Co. (2020). Electing to accept enhanced mesothelioma liability under section 287.200.4(3)(a) requires an affirmative act by the employer, so a now-defunct employer is not deemed to have elected it merely by having workers' compensation coverage when the employee was last exposed.
• Hegger v. Valley Farm Dairy Company (2020). An employer must take an affirmative act to elect to accept enhanced mesothelioma liability under section 287.200.4(3)(a); a now-defunct employer is not deemed to have elected it merely by having workers' compensation coverage when the employee was last exposed.
• Hegger v. Valley Farm Dairy Company (Eastern District, 4th Division, 2019). Under strict construction of Section 287.200.4(3)(a), an employer that had insured its liability at the time of the worker's last exposure elected to accept mesothelioma liability, even if it no longer existed in 2014, and it did not have to give the Division notice of an election.
• Zurich American v. Insurance Co. of North America (2019). Under Missouri law, a pollution exclusion covering irritants, contaminants or pollutants released into the atmosphere unambiguously applies to asbestos dust carried from a workplace and released where the worker's wife came into contact with it, even though asbestos is not named in the exclusion. An insurer with no coverage cannot be made to contribute to another insurer's settlement.
• Accident Fund Insurance Company v. Casey (2018). An employer that accepts enhanced mesothelioma liability under section 287.200.4 and an insurer whose policy endorsement covers those benefits are liable for claims filed on or after January 1, 2014, regardless of the date of last exposure. The statute is not retrospective as applied, and it allows all children, not only dependents, to recover.
• New Hampshire Insurance Company v. Pennington (2018). A federal court with diversity jurisdiction may decline, under its discretion in declaratory judgment actions, to hear an insurer's coverage action when a parallel state workers' compensation proceeding between the same parties can resolve the same coverage issue, and should stay rather than dismiss it.
• Otten v. Liberty Mutual Insurance Company (2018). In a Missouri equitable garnishment action under § 379.200, the insured judgment debtor must be joined as a defendant, so it cannot be realigned as a plaintiff or treated as a nominal party. The action is a direct action, so under 28 U.S.C. § 1332(c)(1) the insurer takes the insured's citizenship.
• Zurich American Insurance Company v. Insurance Company of North America (2018). Under Missouri law as stated in Nooter, an "all sums" policy makes the insurer the insured selected liable for the entire loss. That insurer cannot recover from its insured through equitable contribution, and may seek contribution only from other triggered insurers.
• Zurich American Insurance Company v. Insurance Company of North America (2016). Under Missouri law, a settlement of a progressive-disease asbestos claim is allocated among consecutive insurers pro rata by time on the risk. No equitable contribution or subrogation lies against an insurer whose allocated share is less than its deductible.
• Brauer Supply Company 542 (G) Asbestos Personal Injury Trust v. Atlanta International Ins. Co. (2012). Under Rule 702, the factual basis of an expert opinion generally goes to credibility rather than admissibility, and an opinion may rest on assumptions. Doubts about admissibility are resolved in favor of admitting the testimony.
• HK Porter Company, Inc. v. Transit Casualty Company IN Receivership (Western District, 2006). Under Pennsylvania law, clear and unambiguous policy language governs; the policy, effective May 1, 1982, superseded or controlled over the earlier Confirmation, and the exclusion's reference to the "Named Insured" covered the same subsidiaries and acquired companies that were covered under the policy.

Montana

• Wommack v. National Farmers Union Property & Casualty Co. (2017). Under Montana's last injurious exposure rule and the 'potentially causal' standard, once a claimant proves an occupational disease, liability falls on the last insurer at risk when his working conditions were of the type and kind that could have caused the disease. That insurer carries the burden of proving it is not liable.

New Jersey

• Gea Mechanical Equipment US, Inc. v. First State Insurance Company (2023). Under New Jersey law, an insurer may avoid coverage by showing the insured breached the notice provision and the insurer was appreciably prejudiced. Notice first given after a jury verdict and judgment is a breach, and it prejudices the insurer as a matter of law.
• In re Ltl Management, LLC (2022). A bankruptcy court may extend the automatic stay under § 362(a), or enjoin under § 105(a), state consumer-protection actions against nondebtors even where they fall within the § 362(b)(4) police-power exception, when unusual circumstances exist and the injunction factors are met.
• N RE Ltl Management, LLC (2022). The automatic stay under § 362(a)(1) and (3) may be extended to non-debtors where unusual circumstances exist, such as an identity of interests, indemnification obligations, shared insurance, or risk to reorganization. A § 105(a) injunction is an alternative basis if § 362(a) does not independently support the extension.
• Continental Insurance Company v. Honeywell International, Inc. (2017). In an insurance allocation dispute over nationwide asbestos products claims, choice of law is decided under Restatement §§ 188 and 6 (as applied in Pfizer), not by a presumption for the place of contracting. The Owens-Illinois unavailability exception means an insured does not share in allocation for years when insurance was not reasonably available.