Set Aside of Default Judgment Against Insurer Affirmed on Grounds of Equity Court of Appeal, First District, Division 5, California, December 11, 2018

CALIFORNIA — Several plaintiffs consolidated suit against multiple defendants including Associated Insulation of California (Associated) alleging exposure to asbestos for which the defendants were liable. Associated did not file a response to the complaint. Accordingly, the plaintiffs moved for default judgments in 2013 and again in 2015. The default judgments varied in amounts from $350,000 to $1,960,458. A notice of default had been served upon Associated but not its insurer, Fireman’s Fund (Fireman). Fireman shortly thereafter located policies indicating potential coverage and moved to set…
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Market-Share Cause of Action Against Automotive Parts Manufacturer Dismissed Without Prejudice to Amend Complaint United States District Court, For the Northern District of California. December 6, 2018

The laintiff Gary Farris, brought suit against multiple product manufacturers and distributors alleging that his diagnoses of lung cancer and asbestosis were causally related to asbestos exposure he sustained while 1) working on brakes and clutches in an automotive shop during the summers from 1960 to 1964 and shadetree automotive repairs from the 1960s to 1980s; 2) serving in the United States Navy from 1964 to 1967; and 3) servicing photocopiers from 1967 to 1989. In support of his claims, Farris raised a fifth cause…
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In-State Product Distribution Ruled Insufficient to Confer Personal Jurisdiction Over Out-Of-State Asbestos Product Manufacturer Florida Third District Court of Appeal, November 21, 2018

The plaintiffs, Silverio and Faye Onorato, brought suit against numerous asbestos manufacturers and distributors alleging that Mr. Onorato developed mesothelioma from his exposure to asbestos, which occurred entirely in the State of Florida. The defendant, Highland Stucco and Lime Products, Inc.,(Highland) moved to dismiss the plaintiffs’ claims by arguing that there was no personal jurisdiction over it, as its manufacturing business operations were confined to Southern California.  In support of its motion, Highland annexed an affidavit of its president who alleged a complete lack of…
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Brake Manufacturer Obtains Dismissal on Alternative Theories of Liability in Lieu of Product Identification & Proximate Cause Mississippi Southern District Court, November 1, 2018

MISSISSIPPI – The plaintiffs William Dickens and Karla Dickens (plaintiffs) allege that the plaintiff William Dickens’s (Mr. Dickens) mesothelioma was caused by exposure to asbestos within products he used while employed as a mechanic, and within talcum powder products he used.  Ford Motor Company (Ford) was named as one of the defendants since it, “designed its braking systems for asbestos-containing brake linings such that no other material could be utilized as brake linings in those systems.”  Ford moved to dismiss, under Rule 12(b)(6): (i) the…
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Court Partially Denies Talc Manufacturer’s Motion to Dismiss as to Plausible Gross Negligence and Punitive Damages Claims, but Grants Motion as to Speculative Conspiracy Claim U.S. District Court North Carolina, M.D., October 18, 2018

NORTH CAROLINA – The plaintiffs Everett VanHoy and Lucille VanHoy (plaintiffs) filed this personal-injury action against multiple defendants, including American International Industries (AII), alleging the plaintiff Everett VanHoy’s (Mr. VanHoy) mesothelioma was caused by his exposure to a variety of asbestos-containing products throughout his life. AII moved to dismiss, under Rule 12(b)(6), the plaintiffs’ complaint on the following bases: (i) failure to state a gross-negligence claim; (ii) the plaintiffs’ inability to recover punitive damages resulting from a failure prove AII acted with “fraud, malice, or…
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Defendant Survives Dismissal of its Claims for Contribution and Indemnification Superior Court of the Virgin Islands, Division of St. Croix. September 28, 2018

VIRGIN ISLANDS — Litwin Corporation (Litwin) filed suit against General Engineering Corporation (GEC) seeking contribution and indemnification related to over a hundred asbestos suits filed against Litwin in the United States Virgin Islands. Prior to suit, Litwin settled with the claimants. Litwin then sought contribution and indemnification to mitigate its settlement costs. GEC moved to dismiss the complaint and Litwin responded in opposition. The case was reassigned because of its similarity with the claims pending with a case known as In re : Kelvin Manboth
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Transfer Granted Where Severance of John Doe Defendants Aids Judicial Economy United States District Court, D. New Jersey. August 07, 2018

DELAWARE — The United States District Court issued a Show Cause Order requiring the parties to show why this matter should not be transferred to the District of Delaware. The plaintiff opposed the transfer arguing that two of the defendants also known as “John Doe” defendants may not be subject to personal jurisdiction in Delaware.  The defendants countered and argued that the plaintiff’s claims against those two defendants, RBC Sonic and Aetna Steel Products Corporation, could easily be severed. The court agreed that claims against…
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Plaintiff’s Failure to Establish Minimum Contacts Leads to Dismissal for Lack of Personal Jurisdiction District Court of Appeal of Florida, Fourth District. August 08, 2018

FLORIDA — The plaintiff alleged he was exposed to products manufactured by the defendant or its predecessor from 1975-1977 in Florida. The defendant submitted an affidavit confirming it had no contacts in Florida before 1994. However, its predecessor ran an operations plant in Florida in the early 1980’s, after the alleged exposure. The plaintiff put forth no evidence of minimum contacts other than the allegation of use of defendant’s products in the 1970’s according to the Court. Relying on Southern Wall Products, the Court…
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Defendants’ Knowledge of Asbestos Not Required to Survive Motion to Dismiss U.S. District Court, District of Montana, July 27, 2018

The United States District Court, District of Montana, issued identical decisions in three with the following similarly situated plaintiffs (collectively as “plaintiffs” ) and defendant BNSF Railway Company (BNSF):
  • Lloyd E. Underwood (CV-17-83-GF-BMM-JTJ);
  • Carrie Sue Murphy-Fauth (CV-17-79-GF-BMM-JTJ);
  • Consuela Deason, as Personal Representative for the Estate of James E. Deason (CV-17-76-GF-BMM-JTJ).
In each case, BNSF filed a motion to dismiss for failure to state a claim (among other arguments).  Here, BNSF argued that the plaintiffs failed to allege that BNSF owed the plaintiffs a duty of…
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Plaintiff’s Failure to Assert Elements for Fraudulent Misrepresentation Leads to Dismissal for Friction Defendants U.S. District Court, M.D. North Carolina, July 23, 2018

NORTH CAROLINA — The plaintiff filed suit against 62 defendants including Ford Motor (Ford) and Hennessey Industries (Hennessey) alleging he was injured as a result of exposure to the defendant’s asbestos containing products or equipment. Ford and Hennessey moved to dismiss the plaintiff’s claims for fraud and fraudulent misrepresentation arguing that the plaintiff failed to state a claim with respect to those allegations. The plaintiff sought leave to amend his complaint and amended the complaint after the court permitted a more definite statement. Ford and…
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