Contractors must be especially careful of asbestos exposure when working in older buildings, particularly those built before the 1980s. Depending on the manufacturer and date of installation, asbestos can be found in ceiling tile, floor tile, plaster, dry wall, wall board, pipe covering (particularly hot water pipes), transite pipe, attic insulation, shingles, mastics, sealants, boilers, gaskets, valves, ovens, wiring, turbines and even elevators. This list is certainly not exhaustive, as anything that was or could be exposed to heat and/or friction was often composed of asbestos.
If a contractor has reason to believe that asbestos may be present, the contractor should contact the relevant state agency in charge of worker safety to test the work site. If asbestos is present, an asbestos abatement company will have to be retained to remove the asbestos safely before the contractor can begin or continue his or her work.
I have been served with a lawsuit, now what do I do?
The current problem for many long-time contractors is that they are now often being sued for work performed several decades ago when the dangers of asbestos were not common knowledge. If a contractor is served with a summons and complaint for such a suit, the contractor should immediately tender the suit to its insurer.
However, because the alleged asbestos exposure may have occurred in a building that was demolished or remodeled decades ago, the contractor may not even be aware of who its insurer was at the time of the alleged exposure. In those cases, the contractor should hire an attorney out of his or her own pocket to draft an answer to the complaint and to represent him or her in any further litigation while discovery is conducted as to any possible insurance coverage. A default judgment as a result of not filing an answer should not be risked in asbestos litigation where verdicts have reached into millions of dollars for mesothelioma plaintiffs.
Discovery phase of a lawsuit
Once an answer is filed, the contractor's attorney will engage in the discovery process with the plaintiff's attorney. The contractor will most likely be asked to provide records regarding installation of materials, if such records still exist. It is also possible that some of the contractor's long-term officers, employees or ex-employees will be asked to testify at a deposition regarding the details of the work site(s), the products used and the persons present.
Depositions are typically held in conference rooms at a hotel or law firm and usually last a day or less, depending on the jurisdiction. A deposition of the plaintiff or the plaintiff's widow is always conducted, which will focus on the plaintiff's health history and work sites, and the types of products the plaintiff worked with or was exposed to. The plaintiff will also be asked which contractors were present at which work sites.
Asking the judge to throw out the suit
After discovery is completed, the attorney for the contractor may suggest filing a motion for summary judgment. Such a motion typically asks the judge to throw out the suit against the contractor due to lack of evidence of asbestos exposure. My experience has been that if after discovery there is no evidence of asbestos exposure to the contractor's products and/or services, the plaintiff's attorney will usually dismiss the suit voluntarily without forcing the defendant to bring a motion for summary judgment. My experience has also been, at least in the jurisdictions of Minnesota and North Dakota, that if there is any evidence at all of asbestos exposure from the contractor's products and/or services, summary judgment will not be granted, and such a motion is probably a waste of attorney's fees in those instances.
Settlement or jury trial
If the suit survives the summary judgment phase, the contractor or the contractor's insurer will then likely (depending on the jurisdiction) be required to participate in mediation or a court-sponsored settlement conference in an attempt to settle the case short of trial. Settlement amounts vary widely depending on the jurisdiction, the amount of evidence implicating the contractor, the length of time the plaintiff was exposed to the contractor's products and/or services, and the severity of the plaintiff's illness. A relatively young living mesothelioma plaintiff generally receives the most compensation; an older plaintiff with “only” pleural plaques would receive less compensation. Plaintiffs with the diagnosis of asbestosis usually fall in between the two extremes.
Again, in my practice and observations of other litigants, it is better to settle for a “reasonable” amount than to go to a jury trial where the damages could be found to be in the millions of dollars. Reasonable in my mind is anywhere between $500 and $20,000. Even if the contractor's attorney is successful before a jury and limits the plaintiff's attorney to a modest jury verdict of a quarter of a million dollars in a mesothelioma case, such an endeavor would cost tens of thousands of dollars in attorney's fees and more in expert witness fees.
Furthermore, the plaintiff always has the right to appeal to a higher court, increasing attorney fees even more. Thus, unless the plaintiff holds to an unreasonable settlement demand, the contractor should settle as opposed to taking his or her chances with a jury.
Kent Gravelle is an attorney with Cundy & Martin LLC. Gravelle's practice is centered on business defense, focusing on matters involving asbestos litigation, employment law, insurance law and water infiltration. Gravelle is licensed to practice in all state and federal courts in Minnesota and North Dakota.