Products Liability Law Daily Prior asbestosis case releases valid as to liability for future undiagnosed mesothelioma
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Tuesday, June 11, 2019

Prior asbestosis case releases valid as to liability for future undiagnosed mesothelioma

By David Yucht, J.D.

A shipyard is entitled to virile share credits, under Louisiana law, if it can prove at trial that entities which were released in an asbestosis case by valid releases against future mesothelioma liability were liable for a decedent shipyard worker’s mesothelioma.

A federal court in New Orleans, Louisiana, found that five releases from a prior asbestosis litigation validly released various entities from liability for future claims concerning a shipyard worker’s previously undiagnosed mesothelioma. Applying Louisiana law, the court granted partial summary judgment to the now-deceased worker’s employer, entitling it to virile share credits if it can prove at trial that entities which were released by the valid releases were liable for the decedent’s mesothelioma (Savoie v. Huntington Ingalls, Inc., June 10, 2019, Barbier, C.). A shipyard worker worked at Avondale Shipyards from approximately 1948 through 1995. In 1990, he was diagnosed with asbestosis—an asbestos-related lung disease. He and nearly 3,000 other workers sued for their asbestos-related injuries in state court. He received multiple settlements from that litigation during the 1990s and the early 2000s. Years later, he developed mesothelioma. Prior to passing away, he sued Avondale and others. His estate took over the suit. During the current litigation, 17 release documents from the prior case were produced in discovery. Avondale filed the instant motion for partial summary judgment contending that eight of the 17 releases discharged not only the worker’s contemporaneous asbestosis claim, but all future claims for asbestos-related illnesses, including mesothelioma. Avondale did not claim to be one of the releasees, however. Rather, it sought to use these releases to claim proportionate fault credits (referred to as virile share credits in Louisiana law) against any judgment that may be rendered against it, provided it can prove that the releasees were at fault for causing the decedent’s mesothelioma.

Releases. The court found that the worker released future claims for mesothelioma when he executed five of these releases. Where a release refers expressly to the claim sought to be released by the party seeking to enforce the settlement, that alone is sufficient to shift the burden to the party seeking to oppose the enforcement of the release to prove that there was no meeting of the minds or that there was fraud or wrongdoing. Here, the releases involving both Champion International Corporation and Metropolitan Life Insurance Company specifically referred to mesothelioma and there was no showing of a lack of agreement or wrongdoing. Avondale is entitled to virile share credits if it can prove at trial that entities which were released by the valid releases set forth in this opinion were liable for the decedent’s mesothelioma.

A release involving Amchem Products, Inc. and other entities specifically referred to possible future claims for mesothelioma and, accordingly, was valid. One exception, however, involved a company listed in the release called Shook & Fletcher Insulation Company. There was another separate settlement document in the record, “the Shook & Fletcher Release” dated after the Amchem Release, by which the decedent expressly reserved any future claims against Shook & Fletcher for “cancer [or] mesothelioma... not diagnosed as of the date hereof.” The court found that the Shook & Fletcher Release was “substantiating evidence of mistaken intent” which overcame the unequivocal language in the Amchem Release, but only insofar as the Amchem Release purported to release Shook & Fletcher.

Two other releases, one involving the A.W. Chesterton Company, the other involving A.P. Green Industries, Inc., did not specifically refer to “mesothelioma.” They did, however, refer to “asbestos related cancer.” The court found that the language employed in these releases reflected that the parties clearly comprehended that the decedent was releasing his future claim for mesothelioma.

Unlike the other releases addressed above, the Babcock and Wilcox Company Release did not specifically mention a future claim for mesothelioma or cancer. Nor did it include language where the decedent acknowledged that he may later develop an asbestos-related disease and that such was included in the release. The court found that this release did not release future claims for mesothelioma. Consequently, the court denied Avondale’s motion for partial summary judgment with respect to the Babcock and Wilcox Release.

A Combustion Engineering Release was illegible and, accordingly, the court denied Avondale’s motion with respect to it. The court also denied the motion with respect to a release involving Garlock Inc. and other entities. Although this release specifically referred to mesothelioma, it was unclear whether it involved future claims. In its first paragraph, the phrase “now has or has ever had” appeared to limit the release to present and past diseases. Given the proximity of the phrase “or may ever accrue” to “damages” and its relative distance from “any and all causes of action, or may ever accrue,” it could reasonably be interpreted as modifying only the word “damages,” such that the decedent was only releasing any future damages that may later accrue as a result of the disease he suffered from at that time. Releases of future actions are narrowly construed and, therefore, any doubt as to whether a future contingency is covered by a release is construed against covering the future situation.

The case is No. 15-1220.

Attorneys: Gerolyn Petit Roussel (Roussel & Clement) for Lorita M. Savoie. Gary Allen Lee (Lee, Futrell & Perles, LLP) and Timothy Farrow Daniels (Irwin Fritchie Urquhart & Moore, LLC) for Huntington Ingalls Inc. f/k/a Northrop Grumman Shipbuilding, Inc. f/k/a Northrop Grumman Ship Systems, Inc. f/k/a Avondale Industries, Inc. f/k/a Avondale Shipyards, Inc. f/k/a Avondale Marine Ways, Inc.

Companies: Huntington Ingalls Inc. f/k/a Northrop Grumman Shipbuilding, Inc. f/k/a Northrop Grumman Ship Systems, Inc. f/k/a Avondale Industries, Inc. f/k/a Avondale Shipyards, Inc. f/k/a Avondale Marine Ways, Inc.

MainStory: TopStory SettlementAgreementsNews DefensesLiabilityNews AsbestosNews LouisianaNews

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