Settlements and Releases in Asbestos Cases

Decisions in our library in which the court ruled on enforcing or interpreting a settlement or release: 203 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.

Other federal courts

• Vaughn v. Farrell Lines, Inc. (1991). Non-contractual maritime indemnity is available after a settlement when the indemnitor was notified and tendered the defense but refused to participate, if the indemnitee shows an indemnitor relationship, compulsion to settle, a reasonable settlement, and that the indemnitor's wrongdoing proximately caused the injury. The indemnitor may litigate its own wrongdoing and owes only for damage caused by its own products.
• King v. Armstrong World Industries, Inc. (1990). A party is bound by its attorney's concession in closing argument that the plaintiff was exposed to its products. In asbestos cases, evidence of what the industry knew is relevant to what was scientifically discoverable, even if it shows only a nonparty's knowledge. Under Texas law the defendant bears the burden of allocating causation, and the evidence supported the jury's apportionment and punitive award.
• Graffagnino v. Fibreboard Corp. (1985). Under Texas law, asbestos exposure gives rise to a single cause of action covering all resulting diseases, so a valid release of that claim bars a later action for a disease diagnosed afterward, and a release's assignment of remaining claims is valid and bars suit against unreleased parties.
• Martin v. American Petrofina, Inc. (1985). Under Louisiana law, a remaining joint tortfeasor's liability is reduced by the pro rata virile shares of settling tortfeasors for events before August 1, 1980, not by their proportionate fault, and the amount paid in settlement is irrelevant to the reduction.
• Rocco v. Johns-Manville Corp. (1985). Under the Pennsylvania Joint Tortfeasors Act, settlement payments by defendants not determined to be joint tortfeasors do not reduce a verdict, while a pro rata release of a joint tortfeasor who later files for bankruptcy still reduces the verdict. Pennsylvania delay damages may be assessed against a non-settling defendant only on its proportionate share of the verdict.
• Belton v. Fibreboard Corp. (1984). Evidence of co-defendant settlements may be admitted for a non-liability purpose such as explaining their absence, but telling the jury the settlement amounts so it bases its award on them violates Rule 408. A judge also may not comment on the ultimate fact of damages or steer the jury toward a verdict.
• 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

• In re All Matters Related TO North American Refractories Company (2022). A bankruptcy court approves a compromise after weighing the Martin factors: probability of success, collection difficulty, litigation complexity and expense, and the paramount interest of creditors. Under Delaware trust law, a court disturbs trustees' discretionary decisions only for abuse of discretion.
• Jarrett v. Consol. Rail Corp. (2018). Following the Third Circuit's Wicker test, a FELA release does not violate section 5 if it was executed for valid consideration as part of a settlement and is limited to risks known to the parties when signed. The party attacking the release bears the burden of showing it is invalid.
• Campbell v. AO Smith Corporation (2016). An adult child must prove pecuniary loss, meaning a reasonable expectation of continuing financial benefit such as consistent gifts or services from the decedent, to share in wrongful death proceeds under Pennsylvania law. Court approval and apportionment between survival and wrongful death claims is required to finalize a settlement even after funds are received.
• Dent v. Westinghouse (2010). A party seeking discovery of settlement information must make a particularized showing that it is relevant and likely to lead to admissible evidence, given Federal Rule of Evidence 408. Seeking it to challenge the validity or amount of the claim is a purpose Rule 408 forbids.
• Baker v. ACandS (2000). Under the Uniform Contribution Among Tort-feasors Act, which applies to strict liability actions, a release that expressly provides for a pro tanto set-off controls. Liability is first apportioned equally among all joint tortfeasors, and then each release's set-off method is applied to its settling party's share.
• In re Patenaude (2000). Individual settlement negotiations and discovery in an MDL are coordinated pretrial proceedings under 28 U.S.C. § 1407(a), so plaintiffs did not show a clear and indisputable right to remand, and the Panel did not abuse its discretion in refusing it.
• Baker v. AC&S, Inc. (1999). A pro tanto release given to a settling tortfeasor in a strict liability action must be enforced according to its terms, so long as the consideration paid does not exceed the plaintiff's total claim. Pennsylvania's joint and several liability and the Uniform Contribution Among Tortfeasors Act are not displaced by equal allocation of liability among strictly liable tortfeasors.
• Greenleaf v. Garlock, Inc. (1999). Under Pennsylvania law, a state jury's damages verdict in a reverse-bifurcated trial can be final enough to bar relitigation of damages in a later federal action, even though it was not immediately appealable. Eckenrod's "frequency, regularity and proximity" language is not a required jury instruction in asbestos cases.
• Amchem Products, Inc. v. Windsor (1997). A settlement-only class must still satisfy Rule 23(a) and (b)(3), including predominance and adequacy of representation, although the settlement is a relevant factor. A court cannot replace those criteria with a finding that the settlement is fair.
• Georgine v. Amchem Products, Inc. (1994). A federal court that has approved a class settlement may, under the All-Writs Act and the Anti-Injunction Act, enjoin non-opted-out class members from pursuing the settled claims in other courts where necessary in aid of its jurisdiction, after weighing the four preliminary injunction factors.
• Sealover v. Carey Canada (1992). Where several asbestos defendants combined to cause a single indivisible harm such as mesothelioma death, their liability is joint and several under Pennsylvania law, and the Manville Trust is treated as a settling defendant with a straight pro rata share deducted before delay damages are calculated.
• 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.

Tennessee

• Welch v. Welch (2021). Settlement proceeds from a decedent's lifetime personal injury and loss of consortium suit are not wrongful death proceeds, and under West Virginia's wrongful death statute a decedent who compromised his injury claim before death extinguished any wrongful death action by his heirs.
• Russell v. Illinois Central Railroad Company (2015). Expert causation opinions based on differential diagnosis and a qualitative assessment of workplace exposure can be reliable and admissible even when the dose of the exposure was not quantified. Under 45 U.S.C. § 55 and the railroad health and welfare agreement, a railroad may set off medical benefits the plan paid, even though the employee paid part of the premium.
• 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.
• Blackmon v. Illinois Central Railroad Company (2014). Under the Wicker approach, a FELA release is valid only if given for valid consideration in a settlement and limited to risks known to the parties when it was signed. A boilerplate release listing asbestos and mesothelioma among many hazards, with no other evidence of the employee's knowledge, does not conclusively bar a later claim at summary judgment.
• 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.
• Woody v. AW Chesterton Company (2008). A release's language determines whether it covers later-discovered injuries from pre-release exposure; it can bar a later mesothelioma claim if it expressly covers unknown future diseases, and non-party tortfeasors within its terms may rely on it. It did not cover injuries from post-release exposure, so those claims survived.

Texas

• EL Paso Energy Est Company v. Chevron USA Inc. (2022). Under Delaware law and the plain language of the indemnity provision, Chevron's duty to defend and indemnify is triggered when a third-party claim relates to or arises from the acquired business, regardless of where the injured worker's exposure occurred. A failure to assume the defense within 60 days of the claim notice lets the indemnitee defend at the indemnitor's expense.
• Fisher v. BNSF Railway Company (2nd District, 2022). A FELA release given in settlement of an existing asbestos claim that clearly covers future asbestos-related cancer is enforceable under Section 5, whether tested under the Wicker rule or the Mendoza-Gomez analysis. Once the employer shows the release, the party attacking it must produce evidence of invalidity.
• Payne v. BNSF Ry. Co. (2nd District, 2022). A release of known and unknown future claims, including cancer, given as part of settling an existing FELA asbestosis claim is not barred by FELA Section 5 and is enforceable where it shows the parties' intent to cover such claims. Once the release is shown, the plaintiff bears the burden of raising a fact issue on its invalidity.
• 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.
• Gilcrease v. Garlock, Inc. (8th District, 2006). A venue determination made before a nonsuit fixes venue for a refiled suit on the same claims against the same party. Family members asserting derivative claims are a single claimant for Chapter 33 settlement credits, Settlement credits under Chapter 33 apply only to actual damages, not to exemplary damages, and the jury's actual damages award still supports the exemplary award even if the credits offset it.
• Payne v. BNSF Railway Company (2nd District, 2002). A release given as part of settling an existing FELA claim is not barred by FELA Section 5 and can bar later claims for future injuries, including cancer, when the release language shows that was the parties' intent. Once the release is shown, the plaintiff must produce evidence raising a fact issue on its invalidity or on intent. The court declined to adopt the Babbitt bright-line rule against releasing unknown future injuries.
• Broyles v. US Gypsum Co. (2001). A state-law dispute that is only "related to" a bankruptcy case, could not otherwise have been brought in federal court, and can be timely decided in state court requires mandatory abstention under 28 U.S.C. § 1334(c)(2), even when it was removed. Enforcement of a settlement of a tort suit is a non-core proceeding.
• Pustejovsky v. Rapid-American Corp. (2000). A person who sues on or settles a claim for a non-malignant asbestos-related disease is not precluded from a later action against another defendant for a distinct malignant asbestos-related condition. The malignant condition is a new cause of action, and limitations runs from when symptoms and the likely work-relatedness of that condition are, or should be, known.
• Owens-Corning Fiberglas Corp. v. Schmidt (9th District, 1996). A defendant seeking a settlement credit must prove the settled claim compensated the same damages. A defendant that timely elects a dollar-for-dollar credit under Chapter 33 cannot later switch to a pro rata credit, and prejudgment interest must be calculated after settlement credits.
• Boyett v. Keene Corp. (1993). Under general maritime law, a non-settling defendant gets a settlement credit only if it proves the settlement and judgment cover common damages and that the settling party is a joint tortfeasor. A shipowner that is not negligent is not a joint tortfeasor with a negligent manufacturer, and a settling party cannot get indemnity for payments that did not discharge the manufacturer's liability.
• Cimino v. Raymark Industries, Inc. (1990). In an asbestos case under Texas law, prejudgment interest runs from six months after the plaintiff's last asbestos exposure. Damages for a large class may be set by averaging jury verdicts from a statistically representative random sample without violating due process.
• Pecorino v. Raymark Industries, Inc. (9th District, 1988). Under Texas law as applied by the court, exposure to asbestos gives rise to a single cause of action that accrues when the first injury (here asbestosis) occurs, so a later mesothelioma claim from the same exposure cannot be split off and is time-barred. A broad release of all present and future claims from the exposure is also enforceable.
• Migues v. Nicolet Industries, Inc. (1980). In a Texas-law diversity case involving an industry-wide asbestos tort among strictly liable producers, the non-settling defendant that went to trial receives a credit for the settlement amount rather than pro rata apportionment among settling defendants. An excessive verdict requires remittitur or a new trial.

Virginia

• Cole v. Norfolk Southern Railway Company (2017). A release does not violate § 5 of FELA if it is executed for valid consideration as part of a negotiated settlement and is limited to risks known to the parties when it was signed (the "risk of harm" test). The question is whether the employee intended to release the known risk, a fact question.

Washington

• 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.
• United States Fidelity & Guaranty v. Ulbricht (2022). Under Washington law, an insurer's duty to defend is triggered where the policy conceivably covers the complaint, and refusing to defend on the basis of certificates of insurance until full lost policies were found was bad faith; terms of lost policies must be shown by clear, cogent and convincing evidence.
• CBS Corporation v. Ulbricht (1st Division, 2020). A court reviewing a covenant judgment for reasonableness weighs the Chausee factors, and no single factor controls. It may consider past verdicts and the risk and expense of a later bad faith suit against the insurers, and its findings stand if substantial evidence supports them.
• Brandes v. Brand Insulations, Inc. (1st Division, 2018). A wrongful death claim is barred where the decedent, after injury, pursued prior litigation to judgment against the same defendant, but not against defendants who were not parties to or in privity with parties in that litigation. Res judicata, double recovery and joinder concerns did not bar the claims against the non-party defendants.
• 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.
• Niven v. EJ Bartells Co. (1st Division, 1999). A release of one successor to a tortfeasor's liabilities that reserves the right to sue unnamed parties does not discharge a separate successor. Under the traditional discovery rule, a defendant claiming a lung cancer claim is time-barred must show with competent medical evidence that the cancer could have been diagnosed more than three years before suit.
• Mavroudis v. Pittsburgh-Corning Corp. (1st Division, 1997). In multi-supplier asbestos cases where the expert says all of the plaintiff's exposure probably played a role and the actual cause cannot be identified, a substantial-factor causation instruction is proper instead of but-for. A claim arises under the Washington Product Liability Act when the plaintiff is exposed to asbestos, not when the disease is discovered.
• Brewer v. Fibreboard Corp. (1995). Under RCW 4.22.060, a settlement found reasonable can be used to set the offset against a judgment, but where a structured settlement with a bankrupt-company trust is unlikely ever to be paid in full, the offset is the amount actually received. A failure to give notice of the settlement was cured when the court held a reasonableness hearing on the defendants' motion before final judgment.

West Virginia

• Amick v. Ohio Power Company (2013). Discovery relevance is broader than admissibility, and the party resisting discovery must substantiate its objections. Confidential settlement agreements are not privileged, and basic information about who settled is discoverable, especially where the agreements permit disclosure by court order.