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Asbestos Litigation Should Concern Coal Mine Operators.

Byline: PETER W. GULLBORG

The wide use of asbestos in the first 70 years or so of the 20th century, and the subsequent damages suffered by people from their exposure to it, brought a wave of litigation during the last 15 to 20 years. Many people know that products used in high-temperature operations contained asbestos, due to its resistance to extreme heat. There was a time when asbestos-containing products (ACPs) were common in almost everyday life.

When it was learned that asbestos can play a role in causing various diseases and ailments, the use of it began to disappear. The diseases and ailments which are attributable to asbestos can be divided into two types, malignant and non-malignant. Malignancies are various cancers that may result in death. They also tend to have long latency periods before appearing. Non-malignancies are, broadly speaking, various respiratory problems which, while generally non-fatal, can cause discomfort, quality of life problems, and pain and suffering. Asbestos litigation is couched primarily in two legal theories and, to a lesser degree, a third. The primary theories are product liability and premises liability, with the third being intentional torts.

The reason for multiple theories is that each one targets a different type of defendant. As a rule, cases involving malignancies result in much higher verdicts and settlements than do cases involving non-malignancies. Verdicts can run in the tens of millions. This is due to the more severe nature of malignancies.

Today, there is a vast amount of asbestos litigation. While non-malignancies are usually resolved for far less money, they also far outnumber malignancies. Some companies have more than 100,000 pending asbestos suits nationwide. Most involve non-malignancies and are not expensive to defend individually. Cumulatively, however, defending thousands of cases becomes extremely expensive.

Because of its expense, asbestos litigation has played a role in the bankruptcy of many companies. Some estimates number more than 60. The cost of defending a vast number of cases, combined with some large verdicts and settlements, can be staggering. The two disease types can operate together as a very legitimate corporate threat.

The large number of bankruptcies has changed the targets of asbestos litigation. Many of the most obvious defendants were put out of business. Some bankrupt companies left behind trust funds for asbestos litigants. These funds are limited in what can be paid and are often viewed as insufficient. As a result, some of the attention has now turned from the companies that manufactured ACPs to the companies on whose property a plaintiff may have worked and been exposed to ACPs (even though the company did not manufacture the ACPs).

PREMISE LIABILITY SUITS

A product liability suit targets a product and the manufacturer of that product (and, occasionally, a distributor of that product). In asbestos litigation, the products are ACPs. Since coal mines do not generally manufacture ACPs, this theory will be greatly ignored. However, all businesses, including mines, need to be aware of the second theory, premises liability.

A premises liability suit targets a property and its owner. The suit alleges a civil wrongdoing, or tort, occurred and it is attributable to the owner because it happened on his property. (Owner is used in a broad sense, including not just an actual owner but any party who controlled the premises.) In asbestos litigation, premises liability addresses a party's exposure to asbestos that may have occurred while that party was on someone else's premises.

Premises liability operates under the principle that an owner must protect a party on his property from a known hazard, i.e., exposure to asbestos.

Traditionally, premises liability is limited in its scope, in that only non-employees (contractors, visitors, etc.) can sue an owner in civil court. Employees must sue in the workers' compensation courts (workers' comp) if an owner is the employer, where the potential award is significantly smaller.

Most states have exceptions that allow employees to sue employers in civil court. An almost universal exception is the intentional tort exception. This occurs when an employee alleges his employer committed an intentionally bad act (as opposed to a negligent act), which injured him.

The employee may then sue the employer in civil court, circumventing workers' comp. Because of this situation, asbestos litigation involving intentional torts is usually directed at an employer.

One of the most common intentional torts in asbestos litigation is civil assault. Civil assault is, in lay terms, an unwanted touching by another party which causes damages, i.e., you punch me and break my nose. In an asbestos case, the unwanted touching is by the asbestos fibers to the employee's lungs. Civil assault alleges the employer controlled the asbestos or put it into motion, knew the asbestos was hazardous, and the employee's lungs were injured by that touching/exposure.

The effect of this is if it is shown that: asbestos was at a mine; the mine knew asbestos was present; the mine knew asbestos was hazardous; and the employee was exposed to the asbestos and injured by it, the mine could be liable for damages under civil assault.

It should be noted that assault is not recognized in every state as an asbestos cause of action. It should also be noted that what the mine knew was hazardous about asbestos need not be the hazard that befell the employee, i.e., the mine knew about the non-malignant danger but the employee developed a malignant disease.

Asbestos cases are tried predominantly in a small number of venues. For a variety of reasons, these venues are more plaintiff-friendly, just as some venues are more defense-friendly. The plaintiff chooses where a case is filed and will naturally select a venue more advantageous, if the necessary venue conditions are met.

Some states' laws further assist a plaintiff's attorney. In Illinois for example, a plaintiff need not prove that a particular defendant was the cause of his damages, just a cause. This creates a "single fiber" effect for proving causation. That, combined with the fact that in Illinois one cannot "empty chair" (the trial technique of arguing that damages were caused by another defendant not in or no longer in the case), makes proving both causation and liability easier for a plaintiff. Many states allow a plaintiff to file two asbestos-related causes of action over his lifetime. The effect of this is, should a plaintiff sue for a non-malignancy and then later develop a malignant disease, he can file a second suit against the same defendants for that second disease. This is partly possible due to the latency period for malignant diseases. The latency period is also the reason that most states' statute of limitations for asbestos litigation run from discovery or diagnosis of the illness, not when exposure occurred.

Just as Illinois has its own laws and procedures, so do the other states. These peculiarities of state law, along with the small number of venues, have created a plaintiff's bar which specialize in asbestos litigation, especially in that particular venue. These attorneys are well versed in that state's law, its procedure, and that venue's local rules, meaning that many of these specialized attorneys are quite good at what they do.

HOW DOES THIS AFFECT A MINE?

Coal operators should think about the historical presence of ACPs at a mine. First consider pipe insulation, was it everywhere and was it cemented into place by asbestos-containing compounds?

Next, protective clothing made from asbestos (gloves, jackets, pants, and aprons). What about the brakes on a truck, man-trip, hoist, dragline, etc.? Asbestos was often used for gaskets and packing for pumps, air compressors, motors, etc. Thermal dryers had block insulation. This is certainly not an exhaustive list. It is only meant to indicate the potential for possible asbestos exposure at a mine.

What to do? If a company has not been sued, they should consider themselves lucky. But they should not sit and wait for that day. Aggressive internal preparatory action should be taken. Identify all insurance policies held by the mine over the years.

Next, the mine should try to determine what ACPs were present, where, and when. This is not easy. The farther back a review goes, the worse the records are. It, however, needs to be done. All existing documents that indicate purchases, receipts, or deliveries, the paperwork that identifies what was used and when, should be located. Identify if the mine ever sold ACPs, be it to an individual, a company, or another mine. If such a sale occurred, the mine could be sued as a distributor and be subject to product liability. Lastly, someone within corporate legal should have oversight of asbestos litigation. The reasons why are many.

There are insurance issues, such as the need to hire defense firms, but the most important reason is the unique nature of asbestos litigation. It is unlike Mine Safety and Health Administration policy, workers' compensation, or real property law, even non-asbestos civil litigation. The person with corporate oversight needs to understand the practice and its nuances. Mining companies have been pled into asbestos suits. If yours has not, it is not so much a question of if, but when. Be prepared.

Based in St. Louis, Mo., Gullborg practices in toxic torts, products liability, and mining law for the law firm of Herzog, Crebs, & McGhee, Tel: 314/231-6700, E-mail: pwg@hcmllp.com .

Asbestos Litigation: Be Prepared

Owners could be liable under premises liability if:

*They knew asbestos was on his premises;

*They knew the asbestos was hazardous; and

*A party was exposed to that asbestos and was injured as a result.

Owners could be liable for an intentional tort if:

*The defendant committed an act intentionally;

*The act was unwanted by the plaintiff; and

*As a result of the act, the plaintiff was injured.

Identify all insurance policies held by the mine over the years. Review the policies for:

*Coverage - Determine which mine(s) or corporate entity are covered and the policy's time parameters;

*Applicability - Many policies covered workplace asbestos exposure, most presently do not; and

*Stacking - Policies may cover each year individually and cumulatively. Review for excess coverage.
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Publication:Coal Age (1996)
Date:Nov 1, 2002
Words:1677
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