Assessing Multiple Defendants’ Liability in an Asbestos Case

As research has revealed more about the dangers of asbestos and the mechanics of how it causes certain types of lung disease and cancer, medical and social opinion of asbestos has changed. Likewise, the law of asbestos-related injuries has changed in the last half century. For example, one of our blog posts recently discussed how workplace asbestos cases are now typically addressed through workers compensation proceedings rather than traditional personal injury tort law. A decision issued by the Louisiana Supreme Court in 1992 illustrates another change in the law related to asbestos injuries.


The background and procedural history of Cole v. Celotex Corp, 599 So.2d 1058 (1992), is complicated. However, knowing the case is important when trying to understand the significance of asbestos litigation. The plaintiffs in the case suffered asbestos exposure in the course of their work duties and filed suit against twenty individual defendants. The defendants included manufacturers of the asbestos materials the plaintiffs encountered on the job as well as officers of their former employers. Additionally, the plaintiffs added as a defendant Insurance Company of North America (“INA”), the primary liability insurance provider for the officers.

The lawsuit proceeded and moved toward trial. Just before the trial commenced, the plaintiffs and the defendant-manfacturers reached a settlement agreement. As part of the agreement, the manufacturer-defendants admitted legal fault and paid a monetary sum to each plaintiff. Thus, the trial proceeded against the officers and INA, their insurer. At trial, the jury found the officers responsible for the plaintiffs’ injuries and awarded each plaintiff monetary damages. As the officers’ insurer, INA would be responsible for paying all amounts due as a result of the officers’ legal liability.

Multiple Defendants’ Liability

Because asbestos cases involve both long-term exposure and a period of latency – or development of the disease – it is not uncommon to see changes in the applicable law during the relevant time period of a case. The Cole case is no different. At issue was a change in how Louisiana law treats multiple defendants’ liability for injuries caused.

Prior to 1980, defendants shared financial liability under what is referred to as virile share doctrine. This doctrine divides financial liability equally among all defendants who are found to be at fault. A plaintiff may seek his entire damage payment from any or all defendants. However, any defendant required to pay more than his equal share could seek reimbursement from those who had not paid. In 1980, Louisiana enacted Act 431, which replaced the virile share doctrine with a comparative fault doctrine. Under comparative fault, each defendant is assigned a percentage of fault, and that percentage corresponds to the percentage of the damages each defendant must pay to the plaintiff. (See LSA-C.C. 2323.)

Each scheme has practical consequences for all parties in a lawsuit. For a defendant, comparative fault obviously limits the amount of money he could be forced to pay. If a plaintiff is owed $100,000 from 5 defendants, under virile shares, one defendant may be forced to pay the entire sum and then seek reimbursement from the other defendants. Under comparative fault, if each defendant is assigned 20% fault, the plaintiff may only collect $20,000 from each individual defendant. That is regardless of the plaintiff’s ability to collect from the other defendants. (See LSA-C.C. 2324.) This example illustrates a plaintiff’s implications as well. He may or may not be able to collect his entire damage award under comparative fault, even if one defendant has the financial ability to pay the entire award.

In the Cole case, a major issue was determining which one of these fault doctrines applied. The Court determined [link to post # 1] that issue based on when the when the exposures to asbestos occurred, legally speaking. Ultimately, the Supreme Court ruled that the plaintiffs’ injuries occurred before 1980, the year the comparative fault doctrine took effect. Thus, the virile share doctrine applied. For INA, this had a tremendous impact. The jury in the case had found the officers INA insured to be 95% at fault for the plaintiffs’ injuries. Once the case was altered to apply virile share, INA’s ultimate responsibility was only 9/20ths of the plaintiffs’ award. (Of the twenty defendants, INA insured nine of them; hence, INA is responsible for nine of the twenty virile shares.)

The Cole case demonstrates that, even though the timing of the plaintiffs’ injuries are difficult to pinpoint, the legal consequences of that timing are significant. The legal framework that applies to a case may increase or limit the amount of damages a plaintiff will actually be able to recover. In order to fully protect and preserve their rights, persons affected by asbestos exposure should be sure to retain an attorney that is familiar with the complexities of asbestos cases.

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