Monday, September 15th, 2014
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Is there really $30 Billion in asbestos trusts just waiting to be tapped? Some advertisements and websites would suggest that the money is just there for the taking. And there are those that are suggesting there is something inherently fraudulent about this system. Neither suggestion is accurate. There is no single big pot of money for people injured by asbestos. Claims by persons injured by asbestos (or more likely their heirs) must be made against the companies who created the problem. Many of the companies who sold and supplied asbestos have filed for bankruptcy protection in various different bankruptcy courts around the country.
Many of those companies did not actually go bankrupt the way most people think of it. Those companies wanted to get rid of any liability to people hurt by asbestos. Using Chapter 11 bankruptcies and section 524(g) asbestos bankruptcy trusts, many manufacturers did not go out of business but went back to business as usual. Their asbestos liability is now stripped off and they don’t have to worry anymore about being sued by the people they injured. As a result there have been dozens of trusts established by bankruptcy courts to provide compensation for asbestos victims. The trust set up by the bankruptcy court in the respective case is then responsible for dealing with all claims against that particular company.
But what does this mean for the thousands of Americans now dead or dying from mesothelioma and lung cancer? Do the trusts really offer some sort of big jackpot to those suffering from asbestos disease? Ask anyone suffering a painful death from mesothelioma and they will tell you that they would gladly trade any monetary recovery for their health back. Unfortunately they are often deceased before their case is resolved and their families are the ones who wind up pursuing the claims.
And the funds are not paid out to just anyone who makes a claim. All persons who seek recovery against these trusts must show first that they have an asbestos-related disease (one recognized by that specific trust). Each trust has different criteria for what evidence will need to be produced to establish that disease (usually certain specific medical reports are necessary). Many claimants may have been diagnosed with an asbestos-related disease by their doctor and still do not qualify because the trust excludes payment for that particular condition or the type of proof required is not available.
Claimants must also meet product exposure requirements for each trust which vary widely. For example, a claimant may need to provide evidence of exposure to a specific asbestos product during a specified time period to qualify. A claimant may also need to establish they worked at a particular work site and/or in a certain trade or occupation to qualify.
Some claimants will recover more than others. It is going to depend on the nature of the disease involved and the proof of exposure available.
Claimants may file claims against multiple trusts but not everyone with an asbestos disease qualifies for all trusts. In fact it would be exceedingly rare, if not impossible, to qualify for all the trusts. Moreover, asbestos bankruptcy trusts offer claimants just pennies on the dollar compared to what they would have received in the traditional court system. For example, the Manville Trust pays just 7.5 cents on the dollar of the value the trust put on the claim.
There are those that suggest there is something underhanded, or even fraudulent, about a claimant receiving payments from several different trusts. However, persons injured by asbestos have almost always pursued claims against multiple asbestos producers and suppliers. Mesothelioma and other asbestos-related diseases are often caused by a claimant’s cumulative exposure to a variety of different asbestos-containing products. A person who worked as a pipefitter, for example, may have been exposed dozens of different types of asbestos products, such as pipe covering insulation, asbestos-containing gaskets and packing, and block insulation, each made by multiple manufacturers.
When products made by several companies contributed to the claimant’s harm, the trusts should be paying based upon that companies’ liability, regardless of what other trusts may be paying. And given that the bankruptcy claimant receives only a tiny fraction of the amount that the claims are valued at, there is little chance for over-compensation. And let us not forget that these asbestos bankruptcy trusts exist because manufacturers lied (or looked the other way) about the hazards of asbestos for so long that hundreds of thousands of American workers and veterans have gotten sick and died because of their exposure to asbestos.
Also keep in mind that not all asbestos producers and suppliers have gone through the bankruptcy process. If injury was caused by a company not protected by a bankruptcy filing, it may be possible to file suit against them in court and pursue a case to trial for damages. Worker’s compensation claims may also be made if the asbestos injury was caused at work. There are many factors involved in who gets compensated and how much they can recover.
The system is far from perfect, and no one is all that happy with it. But at least it provides some avenue for those injured by asbestos exposure to attempt to recover for the harm done to them. If you are suffering with an asbestos-related disease you should consult with an attorney with experience in this area of law who can evaluate your case and explain your options to you. R. Bryan Nace has over 25 years experience working on asbestos cases and can give you an honest evaluation of your case.