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Does my company’s liability for installing asbestos ever end?


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Fisher

By Chase Fisher

Nothing boilerplate about it
The case at issue involved a suit by an individual who suffered from asbestos mesothelioma.  The individual, a former steam plant employee, claimed he was exposed to asbestos emanating from a boiler’s insulation at the plant.  The boiler was approximately 13 stories tall, weighed several tons, undisputedly contained asbestos products in its insulation and was installed in 1955.  The individual filed suit against the company that designed the boiler.

Prior to trial, the company argued that the case should be dismissed because it was barred by a statute of repose prohibiting asbestos personal injury claims filed more than 12 years after an entity designed, planned, supervised or observed the construction of, or constructed any improvement to real property.  The court, however, did not agree with the company, and the case proceeded to trial, resulting in a $3 million dollar award to the individual and $1.5 million dollar award.  However, the verdict was substantially reduced in light of other liable parties that settled with the individual before trial.

Both parties appealed the decision.  Ultimately, the appellate court did not agree with the trial court’s denial of the company’s last attempt to have the case dismissed, reversing the case in favor of the employer.

So, you mean there is an expiration date in Pennsylvania?

Yes, at least for now, there is a 12-year statute of repose for improvements to real estate in asbestos cases.  The core dispute between the parties concerned language in a court case that suggested personal injury asbestos claims have no expiration date, which is the case in some jurisdictions.  Here, however, the court focused on Pennsylvania’s statutory law and found that there was a clear and definite 12-year statute of repose that applied.  Thus, the individual should have filed suit by 1967 (12 years after the boiler was installed) to proceed with the lawsuit.  

The parties also argued regarding other issues, such as whether the boiler was a fixture that became part of the real property and whether the company merely supplied the materials for the boiler, instead of designing and constructing the boiler.  Those issues were important to the underlying decision but were very dependent upon the language in Pennsylvania’s statute.

Takeaway
While this case is not the typical construction case, it provides some insight regarding potential asbestos liability faced by companies.  Those in the construction industry may want to take a look at this case, Graver v. Foster Wheeler Corp., as it discusses several legal issues that construction companies face, such as the difference between statutes of limitation and statutes of repose, factors to consider in determining if an object becomes a part of real estate and the treatment of asbestos claims in other jurisdictions.



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