Court Applied Pennsylvania Law in Asbestos Coverage Case Based on Insured’s Residence

York Int’l Corp. v. Liberty Mut. Ins. Co., No. 1:10-CV-0692 (M.D. Pa. Oct. 13, 2015)

This decision involves a dispute over whether Pennsylvania or New York law would apply to an insurer’s duty to defend and indemnify an insured for asbestos-related claims. Due to the passage of more than 50 years between the period covered by the relevant policies and the initiation of the lawsuit, no party with firsthand knowledge of the negotiation and consummation of the policies could be identified, and complete copies of …

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Philadelphia Federal Judge Puts Hold on a Dozen Asbestos Claims by Formerly Bankrupt Plaintiffs

On Tuesday, October 6, 2015, U.S. District Judge Eduardo Robreno ordered a stay on a dozen nearly-identical asbestos claims brought by plaintiffs who had previously sought bankruptcy protection. Judge Robreno stated in all of them that the plaintiffs’ trustees must be given the choice of either pursuing or abandoning the claims.

In one such case, the plaintiff was a ship worker who had filed an asbestos claim in 2001, followed by a bankruptcy action in 2003. His claim, however, was not included as part of …

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Supreme Court of Pennsylvania Denies Constitutionality Appeal of Asbestos-Related Liability Regulatory Statute

On September 29, 2015, the Supreme Court of Pennsylvania denied the appeal of the executor of the estate of James Markovsky.  Markovsky, who had argued that a statute regulating asbestos-related liability should be found unconstitutional, had petitioned for appeal after the Superior Court of Pennsylvania affirmed a grant of summary judgment in favor of Crown Cork & Seal Co.

Originally, on October 6, 2011, Markovsky filed a complaint against Crown alleging that he contracted mesothelioma as a result of exposure to the asbestos products of …

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Pittsburgh Jury Returns Defense Verdict in Secondary Exposure Friction Case

Plaintiff Larry English commenced this wrongful death mesothelioma case by claiming that his wife, Sherry English, was exposed to asbestos on Mr. English’s clothing. Mr. English, who worked for a variety of Ford dealerships between 1968 and 2011, worked with gaskets, brakes, and clutches. His claim is that the asbestos from these products remained on his clothing when he went home, allegedly exposing Mrs. English to asbestos. The plaintiff also claimed exposure to joint compound in connection with work in the home. Mrs. English was …

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Release Agreement in Prior Claim Does Not Bar Future FELA Claim

Plaintiff Roger Lee Hindle was a railroad employee who developed lung cancer and brought a suit under the Federal Employers’ Liability Act (FELA), alleging that his exposure to asbestos caused him to develop the condition. The plaintiff had previously brought a claim against the same railroad defendants for hearing loss; in settling the previous claim, he signed a Release Agreement discharging them from any and all losses, known or unknown, including cancer. The railroad defendants moved for summary judgment, arguing that this release barred the …

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Court Grants Non-Party Expert’s Motion to Quash Subpoena Even Though Items Sought Deemed Relevant

In this federal court motion, Dr. Arthur Frank moved to quash the subpoena served on him by Honeywell International Inc. as a defendant in a pending Eastern District of North Carolina asbestos case, Yates v. Ford Motor Co., et al.  Honeywell subpoenaed Dr. Frank, a prolific plaintiff’s expert in asbestos cases and a non-party to the North Carolina action, concerning his successful lobby of the National Cancer Institute (NCI) to change language on its website and in its “Fact Sheets” regarding cancer risks to …

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Granting of Summary Judgment to Defendant Shipping Companies Overturned in Maritime Action, Based on Negligence Standard in Jones Act

In this case brought under the Jones Act, 46 U.S.C.A. 30104, the decedent, Earl Criswell, was allegedly exposed to asbestos during his time as a Merchant Marine aboard various defendants’ vessels. The appellees, Atlantic Richfield Company and Sunoco, Inc. were both granted summary judgment. The plaintiff appealed, arguing that the lower court failed to view the evidence in the light most favorable to the non-moving party and applied the wrong standard for negligence under the Jones Act. The appellate court agreed with the plaintiff’s arguments …

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Pennsylvania Appellate Court Applies “Frequency, Regularity, Proximity” Standard, Dismissing Bystander Exposure Claim

The plaintiff commenced this action, alleging bystander exposure to brake work done on a P&H crane brakes. The defendants moved for summary judgment on the grounds there was insufficient evidence of asbestos exposure to any P&H crane brakes. In opposition to the motion, the plaintiffs relied on the following proof as recounted by the court: “Appellants contend that by P&H’s own admission, its cranes contained parts made with asbestos, including the brakes and wiring. Appellants assert Appellant Mr. Sterling’s job duties constantly put him in …

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Pennsylvania Superior Court Rules, Inter Alia, No Right to Offset for Bankruptcy Trust Claims

The Superior Court of Pennsylvania recently reviewed on appeal a variety of post-trial issues in two mesothelioma cases that went to trial in the Philadelphia Court of Common Pleas. Of particular interest is the court’s refusal to permit defendants to offset payments received from settling non-party tort feasors, which included bankruptcy claim payments. The basis for the court’s decision is that the jury did not find that the other parties were joint tort feasors. The court described a defendants’ burden on this issue as follows: …

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Statute of Limitation in Wrongful Death Action Held to Have Commenced at Time of Decedent’s Diagnosis

The administratrix of the decedent’s estate appealed the lower court’s time-barred dismissal of the wrongful death action she commenced on behalf of the decedent, who was diagnosed with mesothelioma on June 17, 2011 and died on July 9, 2012. The action was commenced on January 9, 2014, which was more than two years after the mesothelioma diagnosis, but less than two years after the decedent’s death.

The court, in its analysis of the subject Pennsylvania statute of limitations, found that the time to file an …

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