Matter of LA Gattuta v. Baldwin Ehret-Hill, Inc. (1971)

Our plain-English summary of Matter of LA Gattuta v. Baldwin Ehret-Hill, Inc. (New York Supreme Court, Appellate Division, April 27, 1971).

The decedent died in January 1965 from peritoneal mesothelioma. His last employment was with Baldwin Ehret-Hill, Inc., from January to March 1964, as an insulation man on an apartment complex called the Rochdale site. His family's workers' compensation claim was approved, and no one disputed that he had an occupational disease or that work caused it. The only question was which insurance carrier had to pay the award. Consolidated Mutual Insurance Company, which covered the Rochdale site, argued that he had not worked with materials there that could cause the disease. The Workmen's Compensation Board found that he was exposed to asbestos dust at the site and held Consolidated Mutual, the carrier on the risk, liable. The Appellate Division affirmed. It found substantial evidence of exposure, noting that the evidence was at most contradictory on whether the employer used asbestos material, and that other contractors were using such materials. It held that liability attaches on the date of disablement.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Appellate Division, 3rd Dept.
• Decided: April 27, 1971
• Citation: 36 A.D.2d 887
• Stage: Appeal from workers' compensation or benefits
• State: New York

Outcome. The Appellate Division affirmed the Workmen's Compensation Board's award, leaving Consolidated Mutual Insurance Company, the carrier on the risk at the Rochdale site, liable for the death claim, and rejecting the appellants' challenge.

What the court held. Liability for an occupational disease award falls on the carrier on the risk on the date of disablement, since the disablement, not the contraction of the disease, is the industrial accident. The board's finding of asbestos exposure at the site was supported by substantial evidence.

Issues decided: Wrongful Death and Survival, Employer and Contractor Liability, and Workers' Compensation, Insurance Coverage.

The people and their exposure

• Camille La Gattuta: peritoneal mesothelioma; died

The defendants

• Baldwin Ehret-Hill, Inc. (employer)
• Consolidated Mutual Insurance Company (insurer)
• Mundet-Cork Corp.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

36 A.D.2d 887 (1971)

In the Matter of the Claim of Camille La Gattuta et al., Respondents,

v.

Baldwin Ehret-Hill, Inc., etal., Appellants, and Mundet-Cork Corp. etal., Respondents. Workmen's Compensation Board, Respondent

April 27, 1971

Appellate Division of the Supreme Court of the State of New York, Third Department.

Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.

Decedent died on January 22, 1965 from peritoneal mesothelioma. He was last employed by appellant, Baldwin Ehret-Hill, Inc., from January, 1964 to March 4, 1964 as an insulation man working on a complex of apartment buildings at a site termed the "Rochdale site". Occupational disease and causal relationship were established, and there is no dispute as to such determination. The basic dispute is which carrier is responsible for payment of the award. Appellant, Consolidated Mutual Insurance Company, covered the Rochdale site, and it contends that decedent did not work with materials at the Rochdale site which would cause the disease responsible for his death. The board determined that decedent was exposed to asbestos dust at the Rochdale site, and that liability is that of the carrier on the risk, Consolidated Mutual. There is substantial evidence to support the determination of the board that decedent was exposed to asbestos dust at the Rochdale site. The evidence is at most contradictory as to whether the employer used a material containing asbestos at the site, and there is additional evidence that other contractors were using such materials. The award was properly made against Consolidated Mutual, the carrier on the risk, on the date of the disablement "since it is the `disablement' and not the contraction of the disease which is the industrial accident". (Matter of Lumsden v. Despatch Shops, 5 A D 2d 242.) Decision affirmed, with one bill of costs to respondents filing briefs.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites