South Carolina Workers Compensation Statute of Repose Bars Claims for Latent Asbestos Diseases United States District Court, D. South Carolina, Florence Division. November 13, 2018

SOUTH CAROLINA — A federal court in South Carolina granted the summary judgment motion of defendant E.I. du Pont de Nemours and Company (DuPont) on the theory that DuPont was a statutory employer, and South Carolina Workers Compensation law provided the exclusive remedy for the plaintiff.  For at least two years in the 1960s, decedent Jerry Matthews worked as an insulator for Armstrong Contracting & Supply Company at DuPont facilities in South Carolina, where he alleged he was exposed to asbestos insulation that caused his fatal lung cancer.  At that time, DuPont had its own construction division that employed its own craftsmen of various types, including insulators.  However, DuPont also contracted with various outfits for additional construction services.

In support of DuPont’s argument that it was a statutory employer,  a former field project manager testified that pipe insulation was a normal part of DuPont’s business activities, and that craftwork performed by contractors at DuPont was directly related and important to DuPont’s ongoing business activities.  The court concluded that through this evidence, DuPont sufficiently satisfied requirements that a statutory employee’s activities were: 1) an important part of the owner’s business or trade; 2) a necessary, essential, and integral part of the owner’s trade; business, or occupation; or 3) identical to activities performed by the owner’s employees.

Complicating the analysis was South Carolina’s Workers Compensation Act, which stated in section 42-11-70 that “(n)either an employee nor his dependents shall be entitled to compensation for disability or death from an occupational disease…unless such disease was contracted within one year after the last exposure…save that in the case of a pulmonary disease arising out of the inhalation or organic or inorganic dusts, the period shall be two years.” The court considered plaintiff’s arguments that this statute of repose provision excludes pulmonary diseases from the reach of the Act, making a civil suit the only option.  The court rejected these arguments, and determined that the provision extinguishes a right to compensation for pulmonary diseases – like decedent’s lung cancer which have a latency period for longer than two years.  The court acknowledged that its ruling left Plaintiff without a remedy against DuPont, but pointed to the legislature’s clear intent to provide a finite point at which an employer’s liability ends.

Read the full case decision here.

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