Articles Posted in Mesothelioma/Asbestos

bauer_elementary_asbestos_1-1024x768Unraveling the complexities of jurisdiction is essential when determining which court has the authority to hear a lawsuit. Whether a case is heard in state or federal court can have strategic implications, but the path to federal court is paved with complex legal requirements. In this article, we delve into the intricacies of jurisdiction and explore the factors determining whether your lawsuit can be heard in federal court.

The four Legendre brothers filed a lawsuit against Huntington Ingalls, Inc. (formerly known as Avondale) in Louisiana state court. The Legendres claimed Avondale exposed their sister to asbestos, resulting in her death from mesothelioma. 

The Legendres’ father had worked at Avondale’s shipyard building tugs for the United States government. He used asbestos for insulation in the tugs’ engine rooms. The Legendres claimed asbestos had stuck to their father’s body and clothing, which exposed their sister to asbestos when he returned home from work. 

bauer_elementary_asbestos_1-1024x768Although most people have heard of both state and federal courts, many do not know when a party in a lawsuit can move a case to a different court. This happened to Howard Zeringue, who first filed a lawsuit in Louisiana state court, but soon found himself in the United States District Court for the Eastern District of Louisiana after the company he sued removed the case to federal court. This case helps answer the question; My lawsuit was removed to Federal Court. What does that Mean?

Zeringue sued Crane Company (“Crane”) and twenty others for the injuries they allegedly suffered from asbestos exposure.  Zeringue claimed he was exposed to asbestos while working for the United States Navy and at two other jobs. Additionally, Zeringue claimed Crane designed and supplied products with asbestos to the sites where he worked and was exposed to asbestos. 

Although Zeringue initially filed the case in state court, Crane removed the case to federal court under the federal officer removal statute. See 28 U.S.C. § 1442(a)(1). Crane argued any product Crane allegedly manufactured and provided to the Navy would be subject to the Navy’s discretion on whether to use asbestos and whether to include a warning on the product. Zeringue filed a motion to remand the case back to state court. The district court ruled in his favor, holding Crane had not shown the government had exercised its discretion concerning the design and warning problems at issue.  Crane appealed the district court’s ruling that sent the case back to state court. 

asbestos_garage-1024x597Insurance policies are often lengthy and very complicated. Therefore, understanding who may be liable when an injury occurs is critical, as failure to do so may lead to complex and expensive court proceedings. The following Iberville Parish case demonstrates the problems that arise when multiple insurance companies and policies are involved in one lawsuit and when evidence is not properly admitted.  

After working as an electrician in several shipyards and plants in south Louisiana for most of his life, Sidney J. Mabile, Sr. filed a lawsuit against The Dow Chemical Company (Dow) and Westgate and its predecessor, Industrial Electrical Constructors, Inc. (IEC) for asbestos-related injuries. Following a jury trial, Sidney’s claims against Westgate and IEC were dismissed, although Dow was found to be one of three defendants liable for his damages. Dow and Sidney ultimately settled. 

While the case with Sidney was pending, Dow filed a cross-claim against Westgate and IEC (collectively Westgate). Dow argued that Westgate was under an Agreement for Services that mandated Westgate to indemnify Dow for claims brought by a Westgate employee against Dow for any injuries on Dow’s premises. In other words, Dow argued that Westgate owed Dow an indemnity for Sidney’s original claim. 

firefighters_equipment_portrait_756828-1024x819The difficulty of losing a loved one is compounded when death results from a faulty product. Further anguish occurs when a lawsuit against the defective product manufacturer is dismissed, barring recovery. It is essential to be aware that there are many deadlines and requirements to comply with to avoid the dismissal of a lawsuit. This is the situation in which the Lemieux family found themselves following their loved one’s death. 

Raymond J. Lemieux Sr. (“Raymond Sr.”) worked in Marrero, Louisiana, from 1956 to 1970. During this time, he was exposed to asbestos and wore a respirator designed by American Optical. Because of this exposure, he developed asbestos-related lung cancer, culminating in his death in 2015. 

Before he died, Raymond Sr. sued American Optical based on his use of their respirator. Raymond Sr. entered into a settlement agreement dated February 10, 2011, with American Optical. As part of the settlement, Raymond Sr.’s wife and children had to sign a release of any potential future claims they might have had against American Optical. They individually initialed each page of the settlement agreement and a notarized statement. The agreement stated that the parties had executed it of their own free will after discussing the terms with an attorney.  

architect-architecture-blueprint-build-271667-1024x678Sometimes, whether your case takes place in federal court or state court may be out of your hands entirely. Other times, it may be possible for the case to take place in either court. In such situations, it is important to understand possible differences and advantages between state and federal court. When one party wants the case in federal court and the other wants it in state court, things can get tricky, as a 2017 case from the United States Court of Appeals for the Fifth Circuit shows.

Plaintiff Howard Zeringue claimed he was exposed to asbestos in 1952 when he was deployed with the United States Navy. Though he did not provide a time period, he also alleged that he was exposed to asbestos when he worked a job selling insurance in Avondale Shipyard. He filed a lawsuit against Crane Company (“Crane”) and twenty others in state court in Louisiana. Zeringue alleged all were liable for asbestos-causing injuries based on claims of strict liability, negligence, and failure to warn; but specifically stated that Crane and twelve out of the twenty-one defendants were responsible for handling and sending the asbestos-containing products to the places he was exposed.

Crane removed the case to the Eastern District of Louisiana in accordance with the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). Crane claimed that the products it provided for or made for the Navy were subject to the Navy’s requirements and federal officers had discretion about whether the product had asbestos and if it needed a warning label. With its removal petition, Crane supplied affidavits and sample military specifications to show that all asbestos-containing products could not be used in Navy ships without the Navy Machinery Inspectors determining they met the specifications.

clinic-doctor-explaining-2182972-1024x683When an employee is injured on the job, workers’ compensation insurance often delivers more expediently than going through the courts. Unfortunately for the employee, it is also often less money than an injured employee could be awarded by suing the employer. As a Baton Rouge man recently learned, your type of employer can determine whether or not you’re able to sue your employer for work-related injuries. 

J.E. Merit, a contractor, employed Mr. James Fletcher at a Baton Rouge Exxon refinery from 1988 to 1999. Mr. Fletcher claimed that, during this time, Exxon exposed him to asbestos, and that this exposure was the direct cause of his pleural mesothelioma. To recover for this injury, Mr. Fletcher filed a lawsuit against Exxon in the Orleans Parish Civil District Court. The District Court found that, while Mr. Fletcher did work for J.E. Merit, he was also a statutory employee of Exxon. Therefore, the District Court ruled that workers’ compensation, rather than the court process, was the means of recovery for Mr. Fletcher. 

The type of employee-employer relationship makes a difference on whom one can sue. Under La. R.S.23:1032, workers’ compensation is the “exclusive remedy” for injuries sustained by direct employees. This statute protects companies while ensuring an expedient, albeit less compensatory, path for employees. Sometimes, however, the line is not perfectly clear between a direct employee and someone unrelated to an employer. When an employee falls in this gray area, he or she may be classified as a “statutory employee.” 

adult-bed-care-1498927-683x1024In personal injury cases, the plaintiff can only successfully prove the defendant’s negligence if a legal duty of care exists. Where there is no duty of care as a matter of law, a trial court can dismiss the lawsuit by summary judgment. So, when a defendant files a petition for summary judgment claiming that no duty exists, he is saying that even if all of the facts alleged by the plaintiff are true, there still is no duty of care owed by the defendant to the plaintiff. 

For several years in the late 1960s and early 1970s, Huey Chustz worked as an electrician’s helper at the Alma Plantation, a sugar mill in Point Coupee Parish, Louisiana. Chustz would routinely become covered in asbestos dust while working at the mill. He would return home in the evenings where his wife, Elizabeth Sutherland, would launder his clothing, a process which sent the dust into the air. In 2012, Sutherland was diagnosed with malignant pleural mesothelioma. 

Based on her diagnosis, Sutherland filed a claim for damages against Alma Plantation. She died in 2013, after which her children were substituted as Plaintiffs. Alma filed a motion for summary judgment, arguing that it did not owe Sutherland a duty because her injuries were not foreseeable. The trial court granted Alma’s motion for summary judgment, which the Plaintiffs appealed the Louisiana’s Fourth Circuit Court of Appeal.

pollution-1-1235575-1024x851A common tactic of defendants is to attempt to remove a case from state court to Federal Court if there is the slightest indication that such removal might be proper.  Depending on the case, however, it may be more advantageous to a plaintiff to keep the case in state court.  Without even concerning the merits of the case, a battle ensues costing time and money.  In any case, where the Federal Government is even remotely involved, removal will likely be an issue.   How can a plaintiff successfully keep their lawsuit in state court when the Federal Government is involved?  Recent Louisiana asbestos litigation provides at least one way.   

Silas B. Bishop, Joseph L. Dennis, and Lawrence R. Craig worked for many years on different ships as merchant mariners. At least one of the ships that the Plaintiffs worked on was owned by the United States Navy.  United States Naval Ships are operated by civilian contractors who hire merchant mariners such as the Plaintiffs.  The Plaintiffs alleged that they were each exposed to asbestos while on board the various ships and suffered serious injuries and/or death as a result.   At the time of the lawsuit, Mr. Bishop and Mr. Dennis were deceased and their estates were represented by William E. Bartel, who is named as the Plaintiff-Appellee in the case before the United States Court of Appeals for the Fifth Circuit. Plaintiffs filed a lawsuit in Louisiana State Court under the Jones Act and general maritime law.  Plaintiffs sued multiple parties, including “Federal Officer Defendants” who were companies operating the Navy Vessels where Plaintiffs worked.  The Plaintiffs claimed that the injuries they suffered were due to their employers’ failure to warn them about the dangers of asbestos; failure to provide training about using products that contained asbestos; and the failure of their employers to adopt procedures to safely install and remove asbestos.  The Defendants moved to remove the case to Federal Court based on the Federal Officer Removal Statute.   

Pursuant to Federal Officer Removal Statute at  28 U.S.C. § 1442(a)(1), “a lawsuit against or directed to … any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office” may be removed to federal court.  Defendants must show that they are “persons” as defined in the statute; that they acted under the direction of a person working for the federal government; and that there is a relationship between the defendant’s actions and what the plaintiff claims. See Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398-400 (5th Cir. 1998). The issue, in this case, was whether there was a causal nexus, or connection, between the Plaintiff’s claims and the Defendant’s actions.   

asbestos-1483119-1024x768It  seems that asbestos can be toxic not only to people, but also to companies as well. Anco sold, distributed, repaired, and installed insulation materials containing toxic asbestos that can cause mesothelioma and cancer from 1972 until the early 1980’s. The company based in Louisiana conducted business in Louisiana, Mississippi and Texas during that time. As a result, it has faced upwards of 2700 lawsuits across the three states.

In 1987 Anco took out a general liability insurance policy with the National Union. This policy failed to include an exclusion of asbestos coverage. Beginning in April 2009 Anco forwarded all pending asbestos related lawsuits to National Union. When National Union failed to pay claims made by Anco, Anco launched suit against the insurer claiming that National Union should be held liable for the defense costs incurred by Anco. However, the court granted summary judgment to many of the claims made by Anco. This meant the trial court found for National Union and dismissed many of Anco’s allegations.

Anco appealed the partial summary judgment found by the trial court. In particular, Anco attempted to appeal the dismissal of the duty of National Union to pay legal costs. Anco cited three main reasons for their appeal. “(1)a genuine dispute of material fact exists as to the date that Anco first tendered claims under the Policy; (2) even if Anco’s tender of the claims was untimely, the district court erred in not excusing Anco’s tardiness; and, (3) the court erred in concluding that Anco’s failure to tender claims timely under the terms of the Policy relieved National Union of its defense obligations because National Union did not claim that it was prejudiced by Anco’s late tender.”

asbestos-1522143-1-1024x768Insurance agreements often include a provision stating that the insurance company will defend their client or absorb the cost of defending if the client is sued. Eagle Incorporated – a New Orleans based provider of drywall, insulation, plaster, and other building materials – was previously insured by OneBeacon Insurance Company (OneBeacon) and United States Fidelity and Guaranty Company (USFG). Both of the insurance companies issued policies covering legal defense costs. That insurance paid off for Eagle when an employee sued for injury sustained from prolonged exposure to asbestos over his twenty-one years of employment.

When the injury alleged arrises over the course of many years and several insurance companies had polices with the defendant over that time, the insurance companies will split the cost to defend. In this case, USFG was the provider for three of the twenty-one year injury period so they would typically pay for that proportion of defense costs. When the employee brought the lawsuit, OneBeacon was the only listed insurance company set to defend Eagle. OneBeacon then asked the court to join USFG so they could split the cost to defend. However, USFG and Eagle had been parties of a prior lawsuit wherein they reached a settlement agreement stating that USFG would pay Eagle an undisclosed amount and in exchange their insurance policy would be altered to free them of the obligation to pay for past, present, or future defense costs. USFG brought this agreement to the court’s attention as a reason why they should not be liable for the present case.

OneBeacon did not want to shoulder the entire cost of defending so it asked the court for a summary judgment voiding the effects of the settlement agreement and ordering USFG to participate. USFG then asked for their own summary judgment validating the settlement agreement and freeing them from defense costs. The trial court sided with OneBeacon, finding that Louisiana disfavors insurance contract alteration when it will prejudice an injured third party and that allowing the settlement agreement alteration to stand would surely affect the other parties.  An appeal of the Louisiana Fourth Circuit Court of Appeal followed.

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