Insurance Issues in Boston Mesothelioma Lawsuits

One of the more difficult aspects of litigating a mesothelioma lawsuit in Boston is identifying who is responsible for the harm caused. Beyond that, there may be issues determining which liability insurance company is responsible to pay the claim. Some companies have established trusts to help pay future claims. However, some of these companies don’t exist anymore and tracking down their liability insurance can be tedious.

Even in cases where that information is readily available, insurers are fighting tooth-and-nail to avoid getting involved, looking for any exemption or loophole they can find. That doesn’t mean it isn’t worth it, but you will need an experienced Boston mesothelioma attorney on your side throughout the process. mesothelioma lawyer

Recently, the New York Supreme Court ruled a liability insurer that provided coverage to contractors and the Port Authority of New York and New Jersey must defend those entities against asbestos claims filed by construction workers allegedly exposed to asbestos while building the World Trade Center Complex back in the late 1960s and early 1970s. Those workers are only now learning of their illness, and the root cause of it. The insurer fought to extricate itself from these claims, arguing the alleged exposure occurred outside the coverage period. The Supreme Court of the State of New York has ruled the insurer did provide coverage to the defendants during the alleged exposure period, and thus the insurer has a duty to defend.

This doesn’t necessarily mean plaintiffs will win their claims, but it does mean they will have the opportunity to do so – and to collect on any verdicts if they win.

Asbestos Exposure Claims

In these cases, there is rarely dispute as to whether plaintiff’s malignant mesothelioma was caused by asbestos exposure. As noted by the American Cancer Society, in almost every mesothelioma case, we are dealing with decades-old exposure to deadly asbestos fibers.

The specific manner in which the disease occurs is that the fibers become embedded in a layer of tissue called the pleura.  The fibers are very sharp, despite being microscopic in size, and they can physically penetrate the cell wall.  As with other types of cancer, the damage can effect the cell’s DNA, and this can cause an abnormality to occur.  When cells replicate, they use this messenger DNA to form new cells, so if the cells are damaged, the new cells will also be damaged and this can eventually cause a mesothelioma tumor to form.  The bigger issue is that this process happens somewhat slowly at first and then becomes faster as the cancer becomes more aggressive. Even though the cancer is forming and growing, the plaintiff will not likely have any symptoms for as long as 50 years in many cases.

Once the plaintiff is able to notice the symptoms, all those years later, they are likely dealing with end-state malignant pleural mesothelioma and will not survive much longer. As our Boston mesothelioma lawyers can explain, this means that when a plaintiff, or quite possibly the plaintiff’s family comes into the office for a free initial consultation, the first challenge will be in determining where and when the asbestos exposure occurred.  Again, while there may be little question that asbestos caused the illness, there must be proof of who is responsible for the asbestos exposure if plaintiff is to prevail in a mesothelioma lawsuit in Boston.

There are various ways to accomplish this, but one of the main ways is to make a list of everywhere plaintiff has lived during his or her entire life, who lived with plaintiff and what those occupants did for a living while residing with plaintiff,  every job plaintiff has every had, and other similar biographical information. In most cases, asbestos exposure was occupational, but the employer is not necessarily the proper defendant. We must remember that those who were not in the asbestos industry were largely unaware of the dangers, and this is how these asbestos companies got away with knowingly poisoning so many people for so many decades.  While it might seem crazy to think that millions of people around the world were unaware of something that we all take for granted today, times were different and the flow of information was much more heavily restricted. These companies did whatever they could to hide the dangers of asbestos because they were making so much money off the hazardous substance.

Asbestos During Construction of World Trade Center 

After September 11, 2011, when the Twin Towers fell and lower Manhattan was covered in smoke and dust, thousands arrived at the site to clear the debris and find the remains of those who perished that day.  Following the rescue and recovery efforts, crews worked to clean up the debris, and eventually a new tower and a memorial was constructed. Since then, many of those first responders have been embroiled in litigation stemming from their asbestos exposure at the site.

Although that issue has gotten a great deal of attention, less has been paid to the construction workers exposed to asbestos while the towers were first being built. There were actually many buildings included in what was originally called the Hudson Tubes Project as discussed in a recent news article from Insurance Journal.  The original complex including the Twin Towers were not built as long ago as the Empire State Building.  The groundbreaking for the original World Trade Center took place in 1966.  This was still during the time when asbestos was heavily used, and that is why there such a risk to the rescue and recovery workers following 9/11.

There was also a risk to the workers in the late 1960s and early 1970s, and since asbestos takes as around as 50 years to develop into malignant mesothelioma, as discussed above, there are many sick and dying former workers long after the towers were destroyed. The problem was the insurance company that was supposed to be paying the claims argued it was not responsible for the harm suffered by the plaintiffs because there was no way to substantiate the claims arose during a policy year.

In a negligence case, the cause of action is said to arise when the initial injury occurs. In a mesothelioma case, the injury occurs when exposure occurred so the claim arose when the worker was constructing the buildings. There is a statute of limitations, but through the discovery rule, that state of limitations is tolled until the plaintiff has the first reasonable opportunity to discovery the injury.  This occurs when plaintiffs develop mesothelioma symptoms such as chest pains or shortness of breath and go to a medical professional and are told they have the disease.  The question in this case was how to establish the exposure took place at a time when this insurance company was the underwriter of a valid policy. This issue was argued before the Supreme Court for the State of New York. This is actually somewhat confusing since New York is in the minority of states that call the lower trial level court the supreme court.  In Boston, our trial court is the Suffolk County Superior Court.

In this case, the court disagreed with defendant and held that based upon its own contract, there was no requirement that the injury occur during a policy year.  This can be somewhat complex, but it is sometimes called a tail on an insurance liability contract used to prevent gaps in coverage.

If you or a loved one is diagnosed with mesothelioma in Boston, call for a free and confidential appointment at (617) 777-7777.

Additional Resources:

N.Y. Supreme Court Says Coverage Applies in World Trade Center Asbestos Injury Suit, December 7, 2017, By Elizabeth Blosfield, Insurance Journal

More Blog Entries:
Montana Settles Asbestos Claims for $25M, Feb. 19, 2017, Boston Mesothelioma Lawyer Blog

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