Federal Court Holds Underlying Policies Exhausted by Settlement; Grants Summary Judgment to Insurer on Excess Policy Reinsurance Claim

U.S. District Court for the Southern District of New York, October 19, 2020

An insurer and its reinsurer were involved in a dispute over the reinsurer’s liability to reimburse a portion of a settlement that the insured had allocated to an excess liability policy subject to a contract of reinsurance. The insurer had issued three excess liability insurance policies to Asarco Inc., as part of a “coverage tower,” sequential layers of insurance Asarco purchased as part of its annual insurance program. The reinsurer reinsured the …

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Judgment Modified, Declaration Vacated as Court Erred in Granting Motion for Partial Summary Judgment

Supreme Court of New York, Appellate Division, Fourth Department

The plaintiffs, Carrier Corporation and Elliott Company, filed a declaratory judgment and breach of contract action, wherein they sought declarations of the rights and obligations of the parties under liability insurance policies issued by various insurers, including the Fireman’s Fund Insurance Company (defendant). Carrier Corporation and Elliott Company are once-related entities who face lawsuits alleging personal injuries from asbestos exposure relating to their products. In November 2018, the court granted five motions for partial summary judgment …

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Motion to Consolidate Granted Joining Two NYCAL Cases Against Same Defendant

The plaintiffs in two asbestos product liability actions, represented by the same attorneys, moved to consolidate for purposes of a joint trial pursuant to CPLR § 602(a). Defendant Kaiser Gypsum Company, Inc. is the single remaining defendant in both actions. In NYCAL, the plaintiffs must show that joinder is appropriate pursuant to the Malcolm v. National Gypsum Co. factors. Notably, the plaintiffs must not meet every Malcolm factor to show that joinder is appropriate. Instead, a joint trial is appropriate when “individual issues do not …

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Jury Deviated From Reasonable Compensation in $13M Award, New York Appeals Court Rules

Supreme Court, Appellate Division, First Department, New York, August 6, 2020

The Appellate Division of the First Department of New York vacated a $13 million award in a mesothelioma case, stating that the award deviated from what would be “reasonable compensation” for the claims. During the initial trial, the jury awarded $4 million for future pain and suffering, $250,000 for future loss of consortium, $5.5 million for past pain and suffering, and $650,000 for past loss and suffering.

The appellate division upheld the $4 million …

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Plaintiffs Agree to Defendant’s Dismissal After Motion to Dismiss Filed in Talc Case

U.S. District Court for the Western District of New York, July 29, 2020

On February 28, 2019, plaintiffs John Castro and Joyce Castro commenced this products liability action in state court against defendants, including CVS Pharmacy, alleging that Mr. Castro was diagnosed with mesothelioma as a result of his exposure to asbestos from his use of asbestos-contaminated talc products.

On March 1, 2019, this matter was removed to federal court on motion by the defendants.  The plaintiffs filed a motion to remand. On June 2, 2020, the court accepted …

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Talc Manufacturer’s Motion to Dismiss on Forum Non Conveniens Denied

Supreme Court of New York, New York County, July 1, 2020

Glynnis Gale DeKlerk (the decedent) was born in South Africa in 1951 and lived there until 2017, when she and her husband moved to the United Kingdom. She was diagnosed with malignant mesothelioma in February of 2018 and died on January 20, 2019. The plaintiff commenced this action in New York on July 27, 2018 seeking to recover for injuries sustained by the decedent resulting from her alleged exposure to asbestos from talc and …

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Floor Tile Manufacturer Granted Summary Judgment on Both General and Specific Causation

Supreme Court of New York, New York County, June 25, 2020

The plaintiff, Carletto Lamenta (the decedent), was diagnosed with lung cancer in October of 2017 and subsequently filed this lawsuit alleging his injuries were a result of his occupational exposure to asbestos.  The decedent’s deposition took place over the course of seven days, during which he testified that he was exposed to asbestos in a variety of ways, including from his work with ABI’s Amtico vinyl asbestos floor tiles from the 1970s through the mid-1980s.

ABI filed a …

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Electrical Manufacturers Motion for Summary Judgment Based on Cigarette Warning Labels Denied as Speculative

Supreme Court of New York, New York County

Plaintiffs brought the instant action alleging the decedent, Thomas Fahey, was exposed to asbestos from his work in a variety of ways including his work with transformers and electric panels. Specifically, it is alleged that the defendants’ electrical panels and transformers were insulated with asbestos materials or contained asbestos wrapped rope from about 1980 through 2015 while the decedent was employed as an apprentice and union electrician with the International Brotherhood of Electrical Workers, Local #3 from …

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Court Grant Plaintiffs’ Motion to Voluntarily Dismiss in Federal Court Under the Zagano Factors

U.S. District Court for the Southern District of New York, May 5, 2020

On February 25, 2020, plaintiffs Laura McDaniel and Edward McDaniel filed a complaint in the New York Supreme Court, New York County, against the defendants, Whittaker, Clark & Daniels, Inc. (WCD) and Revlon, Inc., for asbestos-related personal injury claims relating to Laura McDaniels’ mesothelioma. The next day, on February 26, 2020, WCD removed the case to federal court under 28 U.S.C. § 1332(a) on the basis of complete diversity between the plaintiffs and defendants. …

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Remand Granted After Finding that Removal Period was Triggered by Plaintiffs’ Discovery Responses

NEW YORK – The plaintiffs sued dozens of defendants, including Cleaver-Brooks, alleging that Frederick Brown developed an asbestos-related injury as a result of exposure to the defendant’s products. The complaint was filed in July 2017. The plaintiff served answers to interrogatories in October 2017. The responses stated in pertinent part “…While performing my sheet metal worker duties, I was exposed to asbestos from the work I did as well as from the work of tradesmen around and in close proximity to me who were cleaning, …

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