Builders Beware: A New Class Of Defendants In Asbestos Lawsuits
January 06, 2016 —
David J. Byassee, Bremer Whyte Brown & O’Meara, LLP & Timothy A. Gravitt, Ulich, Ganion, Balmuth, Fisher & Feld, LLPResidential, commercial and industrial builders face new and potentially significant liability for construction activities that took place in the 1960s, 1970s and 1980s: personal injury lawsuits filed by construction workers from exposure to building products containing asbestos. After emptying the pockets of manufacturers and suppliers of raw asbestos and asbestos-containing products over the last 20 years, plaintiff lawyers are beginning to set their sights on a new class of defendants in asbestos litigation: residential, commercial and industrial builders who unknowingly allowed asbestos-containing products to be incorporated into their projects.
The men and women who have been involved in the building industry for 40 years or more may remember the subject of asbestos surfacing in the 1970s with the enactment of the Occupational Safety and Health Act (OSHA). At that point builders were just beginning to learn that asbestos was a component of some building materials, and the potential risk of cancer presented by asbestos was being debated in scientific and medical journals. Although the use of building materials containing asbestos was mostly phased out by the 1980s, the health risks associated with exposure to asbestos continue – and in fact increase – for the duration of an exposed person’s life.
Today it is generally accepted that exposure to asbestos increases the risk of developing asbestosis and certain kinds of cancer, including mesothelioma. Cancers associated with exposure to asbestos are typically diagnosed at least 15 years (and sometimes up to 50 years) after a person’s exposure to asbestos, meaning that exposures in the 1960s, 1970s and 1980s might not manifest in disease until now. The class of persons who may be at risk for asbestos-related disease is long and varied: insulators, HVAC installers, pipe fitters, plumbers, drywall installers, painters, plasterers and roofers, to name a few. Long-term exposure history, coupled with the theory that “each and every” exposure during a lifetime is a substantial factor increasing the risk of developing cancer, presents potential liability to builders acting as general contractors and/or property owners, as well as the usual defendants in asbestos lawsuits, which include manufacturers, suppliers, and users of asbestos-containing materials.
In recent years, plaintiff lawyers have set their sights on builders as the financial wherewithal of traditional asbestos defendants has dried up. Plaintiff lawyers have created a new theory of liability which they use to rope builders in as defendants in asbestos lawsuits: that the builder knew – or should have known – that a deadly ingredient (asbestos) was contained in the building materials used in construction, and the builder failed to warn its subcontractors or anyone else on the project that exposure to asbestos could harm them.
Builders have unique legal defenses to claims brought by employees of subcontractors who have developed asbestos-related disease. For example, the California Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689, held that an injured employee of a subcontractor cannot maintain a claim against the hirer (builder) for the employee’s injury absent affirmative contribution on the part of the builder to the injury. Thus the first line of defense in an asbestos exposure case is to argue that the developer had no direct role in the plaintiff’s exposure to asbestos and therefore the Privette doctrine precludes the plaintiff from suing the builder. But resourceful plaintiff lawyers are coming up with arguments to get around this so-called Privette defense in asbestos lawsuits by claiming that builders’ activities such as cleanup of asbestos-containing materials, or assertion of control over the work of the subcontractor, directly contributed to the plaintiff’s injuries and therefore provide exceptions to Privette and allow the claim to proceed.
A practical question is raised in asbestos cases: How is a plaintiff able to prove, decades after working on a project, what building materials contained asbestos, or that a builder knew or should have known in the 1960s, 1970s or 1980s that asbestos-containing materials were used on their project, or that asbestos presented a health risk? To answer the first part of the question (what building materials contained asbestos), plaintiff’s experts will say that during the relevant timeframe asbestos was a common ingredient in many building products, e.g., drywall joint compounds, stucco/plaster/gun cement, acoustic ceiling products, cement pipe, insulation, roofing mastic, caulk and plumber’s putty; this can be further proven by reference to product manufacturers’ disclosures made pursuant to the Asbestos Information Act. Also, through the decades of asbestos litigation against product manufacturers and suppliers, resourceful plaintiff lawyers have developed vast banks of data and documentation identifying the manufacturers of asbestos-containing building products, the end-users of those products, and the projects where those products were supplied. With this bank of knowledge, all that is necessary for them to make the claim against a builder is to have the plaintiff identify a construction project where he or she remembers working during the relevant timeframe. Once that identification is made, it is a simple matter for the lawyers to dig and find out who developed the building/project, who then becomes a defendant in an asbestos lawsuit.
The answer to the second part of the question (whether the developer knew or should have known that the products brought to their projects contained asbestos) requires a detailed investigation into the dates at which the products were supplied to the project, the manufacturer of the product, and what information was available in the market place about the material content of the particular product.
The answer to the third part of the question (knowledge that asbestos presented a health risk) is trickier. One of the first standards set by OSHA in 1972 related to permissible levels of exposure to asbestos. It is a common tactic for plaintiff lawyers to argue that the existence of OSHA standards created a presumption of knowledge in the building industry about the dangers of asbestos. But what about pre-OSHA knowledge? Here plaintiff lawyers will argue that well before OSHA, going back as far as 1936, exposure to asbestos was regulated in California under General Industry Safety Orders relating to Dusts, Fumes, Mists, Vapors and Gases. They argue that the General Industry Safety Orders put builders “on notice” of the dangers of asbestos by virtue of being regulated by the State of California, and, by extension, builders had “knowledge” of the health risks associated with asbestos.
There are defenses that skilled defense counsel can utilize to defeat asbestos claims, assuming the Privette defense is not available. The first is to thoroughly investigate and evaluate all of the plaintiff’s potential exposures to asbestos throughout his entire lifetime, and identify those sources that likely were the major contributors to his disease. Next, counsel has to properly investigate the project at which the plaintiff is alleged to have been exposed to asbestos, identify all of the possible sources of exposure, i.e., the products that were used or might have been used at the project, and finally how the plaintiff was allegedly exposed at the project. As most builders do not maintain records of what products were used in their projects dating back 15 years or more, let alone the identities of the trades that worked on the projects, knowledgeable defense counsel can be a valuable partner in unearthing the brands of products typically in use in the locale where the construction took place, and identifying the manufacturers of those products. Defense counsel must analyze the frequency, duration, proximity and intensity of the exposure, as well as the type of asbestos the plaintiff was allegedly exposed to (not all asbestos is created equal – some types are more toxic than others). This will involve careful evaluation of the levels of exposure created by the alleged activity of the builder, to determine, through experts and a thorough understanding of the scientific and medical studies on the subject, whether the levels of asbestos exposure created by the activity could be considered a “substantial factor” in contributing to the risk of the plaintiff’s development of his asbestos-related disease.
Asbestos lawsuits present a significant risk to the unsuspecting and unprepared builder. Money damages available to a plaintiff are substantial. Medical expenses for treatment of asbestos-related disease typically run into the hundreds of thousands of dollars, lost income (including retirement benefits) can also be significant, and jury awards for pain, suffering and emotional distress can be staggering - often millions of dollars. In some cases punitive damages are even awarded.
The bottom line is that a builder runs a big risk if it treats an asbestos claim like any other claim. The level of analysis and investigation to properly defend against the claim requires prompt action by knowledgeable counsel, and frequently there is no insurance coverage.
David J. Byassee is an attorney with the firm
Bremer Whyte Brown & O’Meara, LLP, and is a litigator who has devoted nearly a decade to representation of real estate developers and builders. He can be reached at: dbyassee@bremerwhyte.com.
Timothy A. Gravitt is an attorney with the firm
Ulich, Ganion, Balmuth, Fisher & Feld, LLP who is devoted to defending real estate developers and builders in a variety of litigation. He can be reached at: tgravitt@ulichlaw.com.
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Navigating Construction Contracts in the Energy Sector – Insights from Sheppard Mullin’s Webinar Series
October 01, 2024 —
Cesar Pereira - Sheppard MullinConstruction contracts in the energy sector involve unique challenges and risks, particularly with respect to bonds and mechanic’s liens.
Understanding how to navigate these challenges is key to protecting your projects from disputes with general contractors, subcontractors and suppliers.
In our recent webinar, “
Construction Contracts: Bond and Mechanic’s Lien Primer for Energy Projects,” I was joined by my Sheppard Mullin colleagues Chris Kolosov and Emily Anderson to discuss navigating common contract pitfalls and negotiation strategies to protect your interests.
Here are our key takeaways.
- Know Local Mechanic’s Lien Laws: Mechanic’s liens are statutory and vary significantly from state to state. It is critical to understand the local laws and regulations at play in your project’s jurisdiction.
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Cesar Pereira, Sheppard MullinMr. Pereira may be contacted at
cpereira@sheppardmullin.com
Supreme Court Declines to Address CDC Eviction Moratorium
August 04, 2021 —
Zachary Kessler, Amanda G. Halter & Adam Weaver - Gravel2Gavel Construction & Real Estate Law BlogIn a closely watched 5-4 decision, the U.S. Supreme Court sided against the challengers to the eviction moratorium issued by the Centers for Disease Control and Prevention (CDC), keeping a stay in place that leaves the eviction ban in effect through July 31. The CDC has indicated it will not renew the eviction moratorium when it expires at the end of the month.
The CDC’s eviction moratorium was first adopted at the expiration of the CARES Act’s limited eviction protection for federally funded rental properties. The more broadly applicable order, extended under both the Trump and Biden administrations, prohibited landlords from evicting tenants unable to pay due to the financial impacts of the COVID-19 pandemic, when the tenant confirmed in writing that they had done their best to make any partial payment, were at risk of becoming homeless or having to move into unsafe group housing, and earn below a set income limit. The CDC extended the order most recently on June 24. In announcing that one-month extension, CDC director Dr. Rochelle Walensky indicated that it would be the order’s final extension.
Reprinted courtesy of
Zachary Kessler, Pillsbury,
Amanda G. Halter, Pillsbury and
Adam Weaver, Pillsbury
Mr. Kessler may be contacted at zachary.kessler@pillsburylaw.com
Ms. Halter may be contacted at amanda.halter@pillsburylaw.com
Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com
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Australian Developer Denies Building Problems Due to Construction Defects
June 15, 2011 —
CDJ STAFFThe Sunland Group, the developer, is objecting to claims that it is responsible for corrosion damage in a residential building in Gold Coast, Australia, as reported in the Courier & Mail. Residents of Q1, the world’s tallest residential tower, are suing the developer, claiming that defects and corrosion “compromise the long-term durability and appearance of” the six-year-old building.
The developer has not only denied that there are defects in the building, but has also stated that the construction contract “did not warrant that the construction would be defects-free.” Sunland claimed that corrosion was due to the homeowners association having “failed to carry out the maintenance requirements.”
Repair of the building is expected to cost millions of dollars. Sunland denies that it should pay any of that.
Read the full story…
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Lay Testimony Sufficient to Prove Diminution in Value
September 25, 2018 —
Tred R. Eyerly - Insurance Law HawaiiThe trial court erred in excluding lay testimony on diminution of value of the insured's property and by requiring expert testimony. Woodrum v. Georgia Farm Bureau Mut. Ins. Co., 2018 Ga. App. LEXIS 429 (Ga. Ct. App. June 27, 2018).
During a thunderstorm, a large tree fell onto the roof the insured's house, causing significant damage. The damage was reported to their insurer, Georgia Farm Bureau Mutual Insurance Company. When there was disagreement on the amount of the loss, an appraisal was invoked. An award was agreed to and payment was made by Georgia Farm.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
London Penthouse Will Offer Chance to Look Down at Royalty
March 05, 2015 —
Zainab Fattah – Bloomberg(Bloomberg) -- A penthouse “overlooking the Queen’s balcony” will cap a London luxury apartment project planned near Buckingham Palace, according to its Abu Dhabi-based owner.
The 10,000 square-foot (929 square-meter) apartment at No. 1 Palace St. across the street from the royal residence will probably fetch about 60 million pounds ($92 million), Jassim Alseddiqi, chief executive officer of Abu Dhabi Financial Group LLC, said in an interview in the capital of the United Arab Emirates on Monday.
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Zainab Fattah, BloombergMs. Fattah may be contacted at
zfattah@bloomberg.net
Professional Liability Client Alert: Law Firms Should Consider Hiring Outside Counsel Before Suing Clients For Unpaid Fees
March 31, 2014 —
David W. Evans and Blythe Golay - Haight Brown & Bonesteel LLPLaw firms seeking to recover attorney’s fees as the prevailing party in fee dispute litigation with their former client should hire outside counsel in order to avoid waiving any entitlement to such fees. Evaluating any potential exposure for a professional negligence claim or cross-claim before filing suit should also be considered. In Soni v. Wellmike Enterprise Company, Ltd., et al., No. B242288 (filed March 26, 2014) the California Court of Appeal for the Second District held that a law firm, represented by its own employees and associates, was not entitled to recover attorney fees as the prevailing party, pursuant to the attorney’s fee provision in the retainer agreement. The Soni decision is the latest addition to the general prohibition enunciated by Trope v. Katz (1995) 11 Cal.4th 274 (“Trope”) and its progeny that law firms are precluded from recovering attorney’s fees for self-representation.
In Soni, the law firm obtained a $28,384 judgment for delinquent legal fees against a former client. The firm then filed a motion for attorney’s fees, seeking $120,912 as the fees it incurred as the prevailing party under the retainer agreement. The trial court denied the motion based on the general rule set forth in the Trope line of cases that fees are not recoverable where the firm is represented by attorneys employed by the firm, despite the presence in the applicable retainer agreement of a clause notifying the client that fees the law firm would seek if it prevailed would include those for its in-house personnel.
Reprinted courtesy of
David W. Evans, Haight Brown & Bonesteel LLP and
Blythe Golay, Haight Brown & Bonesteel LLP
Mr. Evans may be contacted at devans@hbblaw.com; Ms. Golay may be contacted at bgolay@hbblaw.com
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Why Being Climate ‘Positive’ Is the Buzzy New Goal of Green Building
December 10, 2024 —
Olivia Rudgard - BloombergThe three buildings, dotted around Norway, couldn’t look more different: a soaring timber-and-concrete obelisk in Porsgrunn; a squat, two-story Montessori school on the edge of a forest in Drøbak; and a concrete and glass wedge-shaped office in Trondheim, just a few hundred miles from the edge of the
Arctic Circle. But they share a distinctive feature. Each has a roof perfectly tilted to squeeze out every possible drop of solar energy.
They are called
Powerhouses, and the initiative behind them claims they are all “energy positive”: The upfront energy “cost” of each building, and that of later demolition and disposal, is expected to be made back over the building’s lifetime. Powerhouses sometimes draw from the grid, especially in winter, but in the long Nordic summer days they give back many times over, overspilling excess solar energy into surrounding homes and businesses.
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Olivia Rudgard, Bloomberg
