Summary Judgment Awarded to Pipe Insulation Company Under Lohrmann Test

U.S. District Court for the District of South Carolina, Columbia Division, October 26, 2020

The plaintiff alleged that the decedent, Paul Cruise, was exposed to asbestos-containing products while serving as a boiler tender in the United States Navy, and while working as an electrician at various industrial facilities from 1965 to 1980. The defendant, Covil Corporation, moved for summary judgment, arguing that the plaintiff could not show evidence of the decedent’s exposure to a Covil product. The allegations against Covil arose from Mr. Cruise’s work as an electrician. While Mr. Cruise died prior to being deposed, his friend and brother-in-law provided testimony that the two men worked in facilities where Covil was a contractor using insulation materials. He alleged that he and Mr. Cruise worked around Covil insulation contractors, though he was unable to recall seeing any Covil-supplied products or identify any specific jobsites on which he observed Covil workers.

During discovery, Covil produced a list of companies with which it did business, some of which were the same that Mr. Cruise’s brother-in-law had identified during his deposition as locations where he worked with Mr. Cruise. Other documents produced during discovery contained reference to Covil insulation and steam piping in an equipment room, that Covil admitted could have contained asbestos.

On Covil’s motion, the court first found that state law applied, given that the claims against Covil related to industrial jobsites on land. Next, the court was tasked with determining which state’s law would apply, given that the plaintiff alleged that Mr. Cruise was exposed to asbestos in South Carolina, North Carolina, Georgia, Tennessee, and Virginia. Notwithstanding this, the court held that fortunately, the law in each state where exposure was alleged was essentially the same with regard to exposure. That is, South Carolina, North Carolina, Virginia, and Tennessee had all adopted the “frequency, regularity, and proximity” test (i.e. the Lohrmann test).

Under this analysis, the court found that while the plaintiff had cited to a list of companies with which Covil did business, that list did not indicate what Covil was doing at any given jobsite, and therefore did not show that any material use on that jobsite contained asbestos. Furthermore, the document that referenced Covil insulation and steam piping in an equipment room was a price quote, and did not indicate that the material was actually installed or that Covil actually did any work at that facility. Furthermore, the plaintiff’s only witness, Mr. Cruise’s brother-in-law, was unable to recall any specific jobsites where he and Mr. Cruise worked around Covil products or Covil workers, any specific timeframe of same, or any types of products that Covil distributed. Given this, the court found that the plaintiff’s evidence fell short of placing Mr. Cruise in proximity to Covil’s specific asbestos-containing product on a regular basis over an extended period of time, and therefore the plaintiff could not satisfy the “frequency, regularity, and proximity test.” With that, Covil’s motion for summary judgment was granted.