Written by David A. O’Neill, J.D., Director of Investigations, PolicyFind
A recent development in asbestos litigation has been suits brought by workers in the Texas oil fields against their employers for long term exposure to asbestos during the process of lining pipes and boilers and otherwise applying asbestos containing products during oil drilling operations.
The Texas Workers’ Compensation Act (TEX. LAB. CODE ANN. S408.001(a) provides that the recovery of workers compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance for a work related injury. This 2005 statute has had the effect of limiting the liability of employers whose workers bring personal injury claims alleging work related exposure to asbestos resulting in the industrial disease, mesothelioma. The statute enables the employer to produce its workers’ compensation policies going back to the time of worker exposure thereby limiting the worker’s recovery to the policy limits.
Texas employers whose employees bring long-tail asbestos-related bodily injury claims against them have an immediate need to find their old workers compensation policies. These employers need to document the terms, conditions and limits of these old policies in order to determine to which insurer they should tender their former workers’ bodily injury claims and the type and limits of their coverage. This is of some interest to insurance archeologists who search for and retrieve copies of lost or mislaid insurance policies on behalf of such clients. It is highly likely that these old workers compensation policies were purged over time to make storage space available for modern business records. Hence, hiring someone to search for these insurance documents off-site is a necessity.
Finding these policies can have additional beneficial effects on the defending employer’s case in that they can provide a defense as well as indemnity. Further, once the employer establishes that workers compensation policies were in effect during the term of the plaintiff’s employment, the plaintiff’s cause of action can be limited to one for gross negligence and the standard of proof toughened to clear and convincing evidence. What is more, should the court find gross negligence, the plaintiffs may only recover punitive damages (not actual damages).
Should the insurance archeologist only find policies issued by insolvent insurers, as long as these policies were in effect during the workers’ alleged exposure to asbestos, except for the unavailability of defense and indemnity, these limiting effects on the plaintiff’s case would be the same as if the insurers were solvent.
Mr. O’Neill is the Director of Insurance Archeology at PolicyFind with over twenty years of experience in locating lost insurance policies for commercial clients.