E.D. LA / Asbestos Lost Policiesshoke2013
Insurer Unable to Prove Existence of Products Hazard Exclusion
The United States District Court for the Eastern District of Louisiana, applying Louisiana law, held that there were genuine issues of material fact, denying insurer American Insurance Company’s (“AIC”) motions for summary judgment, which were based on an alleged products hazard exclusion and lack of exposure during the policy period to the insured’s products.
Plaintiff Becnel was an employee at two different worksites where he was allegedly exposed to asbestos by working with and in close proximity to Eagle products. As a result of this exposure, Becnel later died from lung cancer. Becnel’s estate brought claims due to the asbestos exposure against AIC, Eagle’s insurer.
AIC filed a motion for summary judgment, arguing the policy it issued to Eagle contained a products hazard exclusion, and as such, there is no coverage for Becnel’s claims under the AIC policy. AIC also filed a separate motion for summary judgment based on lack of liability for Eagle’s conduct during the policy period of 1965-1966, alleging that there is no evidence in support of Becnel’s exposure to asbestos at his worksites during that time period.
In response to AIC’s products hazard exclusion motion for summary judgment, the District Court held that there was a genuine issue of material fact as to whether the policy contained a products hazard exclusion. The policy itself was never found, although one was presumed by the court to have been issued. According to AIC, if it issued a policy to Eagle, the policy would have been a form “K” policy, which contains a products hazard exclusion. AIC attached to its motion for summary judgment a form “K” policy issued to a different insured as evidence. The Court explained that it could not legally bind Eagle, and the plaintiffs by extension, to the terms and exclusions in a policy to which they were not privy. Both parties offered experts that offered conflicting testimony regarding the likely form used for the policy issued to Eagle. Therefore, the motion was denied because a genuine issue of material fact existed as to whether the Eagle policy contained a products hazard exclusion.
Regarding AIC’s motion for summary judgment based on a lack of liability, the District Court held that there was sufficient evidence to create a genuine issue of material fact related to Becnel’s alleged exposure to Eagle’s asbestos containing products. Multiple parties’ testimony, including the plaintiff’s, placed Eagle products containing asbestos in close proximity to Becnel at both worksites during the coverage period, and described his history of working directly with these products. Additionally, the Court noted that the Fifth Circuit stated that evidence illustrating even “slight exposures” is sufficient to defeat a motion for summary judgment in an asbestos case. Finally, the Court stated that expert testimony also gave evidentiary support to the claim that Becnel’s asbestos exposure at the worksites was a substantial factor in his developing lung cancer. For these reasons, the District Court denied AIC’s motions for summary judgment. Becnel v. Lamorak Ins. Co., No. CV 19-14536, 2022 WL 2116896 (E.D. La. June 13, 2022).