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Asbestos Tips for Contractors

Why should contractors be concerned with asbestos?

Words that may come to mind include lawyers and mesothelioma. Contractors must be particularly careful of asbestos exposure when working in older buildings, particularly those built before the 1980’s. 

What projects can include asbestos?

Depending on the manufacturer and date of installation, asbestos can be found in ceiling tile, floor tile, plaster, dry wall, wall board, pipe covering (particularly hot water pipes), transite pipe, attic insulation, shingles, mastics, sealants, boilers, gaskets, valves, ovens, wiring, turbines, and even elevators.  This list is certainly not exhaustive, as anything that was or could be exposed to heat and/or friction was often composed of asbestos. 

What should a contractor do if he or she suspects asbestos is present?

If a contractor has reason to believe that asbestos may be present, the contractor should contact the relevant state agency in charge of worker safety to test the work site. If asbestos is present, an asbestos abatement company will have to be retained to remove the asbestos safely before the contractor can begin or continue its work.

What if I am sued for asbestos related work from a long time ago?

A current problem for many long-time contractors is that they are now often being sued for work performed several decades ago at a time when the dangers of asbestos were not common knowledge. If a contractor is served with a Summons and Complaint for such a suit, the contractor should immediately tender the suit to its insurer. However, because the alleged asbestos exposure may have occurred in a building that was demolished or remodeled decades ago, the contractor may not even be aware who its insurer was at the time of the alleged exposure. In those cases, the contractor should hire an attorney out of its own pocket to draft an Answer to the Complaint and to represent it in any further litigation while discovery is conducted as to any possible insurance coverage. A default judgment as a result of not filing an Answer should not be risked in asbestos litigation where verdicts have reached into the millions for mesothelioma plaintiffs.

Once an Answer is filed, the contractor’s attorney will engage in the discovery process with the plaintiff’s attorney.  The contractor will most likely be asked to provide records regarding installation of materials, if such records still exist.  It is also possible that some of the contractor’s long-term officers, employees, or ex-employees will be asked to testify at a deposition regarding the details of the work site(s), the products used, and the persons present.  Depositions are typically held in conference rooms in a hotel or law firm and usually last a day or less, depending on the jurisdiction.  A deposition of the plaintiff (or the plaintiff’s widow) is always conducted which will focus on the plaintiff’s health history, the plaintiff’s work sites, and the types of products with which the plaintiff worked or was exposed to.  The plaintiff will also be asked which contractors were present at which work sites.

After discovery is completed, the attorney for the contractor may suggest filing a motion for summary judgment.  Such a motion typically asks the judge to throw out the suit against the contractor due to lack of evidence of asbestos exposure.  My experience has been that if after discovery there is no evidence of asbestos exposure to the contractor’s products and/or services, the plaintiff’s attorney will usually dismiss the suit voluntarily without forcing the defendant to bring a motion for summary judgment.  My experience has also been, at least in the jurisdictions of Minnesota and North Dakota, that if there is any evidence at all of asbestos exposure from the contractor’s products and/or services, summary judgment will not be granted and such a motion is probably a waste of attorney’s fees in those instances.

If the suit survives the summary judgment phase, the contractor (or the contractor’s insurer) will then likely (depending on the jurisdiction) be required to participate in mediation or a court-sponsored settlement conference, in an attempt to settle the case short of trial.  Settlement amounts vary widely depending on the jurisdiction, the amount of evidence implicating the contractor, the length of time the plaintiff was exposed to the contractor’s products and/or services, and the severity of the plaintiff’s illness (a relatively young living mesothelioma plaintiff generally receives the most compensation while an older plaintiff with “only” pleural plaques would receive less, while plaintiffs with the diagnosis of asbestosis fall in between the two extremes).

Is there a way to avoid a trial?

In my practice and in my observations of other litigants, many cases settle for a “reasonable” amount rather than go to a jury trial.  An additional reason that settlement may be better than trial is that the plaintiff always has the right to appeal to a higher court if it loses, increasing the contractor’s attorney’s fees even more.