Articles Posted in Mesothelioma/Asbestos

Insurance 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.

Sometimes a party feels that he, she, or it will fare better in a federal court rather than in the state court. At least for defendants, there is a process, known as removal.  This can be accomplished for several reasons, one of them being that the person or entity being sued is the federal government, an officer of the government, or someone acting under the orders of such an officer. This is governed by 28 U.S.C. 1442   However it can be returned to the state court by the plaintiff by asking the federal court to remand it, should the case not meet the standards to be heard in the federal court.  In response, the defendant party might appeal and ask that the remand  be stayed, or essentially halted.  They must, however, meet certain conditions, including that the appellate court find that the party has a likelihood of succeeding in its objective. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 410

The federal Fifth Circuit Court of Appeals (which governs Louisiana) recently ruled, reshowing the standard for keeping a lawsuit in the federal court, or taking it back to the state court. In 2013, Mary Wilde was diagnosed with terminal mesothelioma.  She believed this was due to indirect exposure to asbestos through her father who had worked at a shipyard in the 1940s. As such she brought lawsuit against the current owner of that shipyard.  There was evidence that during the  time that her father had been employed for the shipyard, that yard had been used for the construction of ships for the federal government.  Upon this knowledge, the company, Huntington, filed to remove the case to the federal district court, on the basis that the shipyard in question had acted under the order of a federal agent.  Ms. Wilde filed a motion to remand and the district court agreed.  In response, Huntington appealed to stay, or stop for a time, the remand order.

The case went to the Fifth Circuit Court of Appeals in order to determine whether this lawsuit could have indeed been properly removed to federal court.  In order to allow this, Huntington would have to prove that it or its predecessors had acted in the past upon federal orders and that these actions were what caused a plaintiff injury. The Fifth Circuit found that  the shipyard had constructed ships for the federal government and so could be said to have acted under order from a federal agent.  However, the company would have to prove the causation.  Under Winters v. Diamond Shamrock Chemical Company, causation exists when toxic materials are used where the federal government both directs construction, including the use of materials that turn out to be toxic and provides these materials to be used in building.  Winters v. Diamond Shamrock Chemical Co., 149 F. 3d 387 – Court of Appeals, 5th Circuit 1998.

Throughout the last century asbestos was used in many products as an insulator from heat.  Countless workers in the 1940s, 50s, 60s and beyond were exposed to asbestos fibers as part of their daily work.  Those fibers can lie dormant for decades prior to forming mesothelioma cancer that then can metastasis throughout the body.  Once mesothelioma is discovered typically a lawsuit follows in which every possible workplace in which the person was exposed is included as a defendant.  However not all defendants will remain in the lawsuit until trial.  Some will get out by filing motions in which they argue the facts do not support their inclusion in the proceedings.  The following mesothelioma lawsuit out of Shreveport shows what happens when the facts of a case do not support the Plaintiff’s allegations as to certain parties fault.

An employee of Parish Caddo sued his employer after being diagnosed with Mesothelioma in 2013 due to asbestos exposure. William H. Jordan alleged that his employer, R. F. Zimmerman & Company, Inc., was negligent or strictly liable for withholding knowledge of the dangers of asbestos exposure, failing to provide a safe work environment, and failing to protect him from the unreasonably dangerous conditions created by the asbestos on its premises and within its care, custody, or control.

Jordan also joined Progressive Care Center (“PCC”), A/K/A Virginia Hall Nursing Home, among others, as one of the defendants on whose premises he did jobs for. Jordan subsequently died a mere month after he filed his lawsuit. His immediate family was substituted as plaintiffs and asserted survival and wrongful death actions against the defendants. Prior to his premature death, Jordan alleged in a deposition that he worked part-time for Zimmerman during the 1950s and early 1960s, helping his friend James Yates with asbestos installation jobs. The work at the then Virginia Hall Nursing Home involved covering water lines during the construction of the building. The pipes were wrapped with a one-piece asbestos covering that was slit down the middle so it could be fitted around the pipes. Jordan further stated that the materials were already there when he began the job and that he did not see any Virginia Hall employees or take directions from anyone while installing the pipes.