California Supreme Court Rules Broadly in Favor of Insureds

David E. Weiss and Kerry Roberson | ReedSmith | June 11, 2018

On Monday, June 4, 2018, the California Supreme Court ruled that an insurance company must provide liability coverage to its corporate insured against claims of negligent hiring, retention, and supervision of its employee, who allegedly sexually assaulted a 13-year-old child. The case is Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co., Inc., Case No. S236765 (June 4, 2018). This decision is “of exceptional importance to injured parties, employers, and insurance companies doing business in California,” wrote the U.S. Court of Appeals for the Ninth Circuit, in an order certifying the issue to the California Supreme Court.

In 2002, Ledesma & Meyer Construction Co. (L&M) entered into a contract with the San Bernadino School District for a construction project at a local middle school. L&M hired Darold Hecht to work on the project. In 2010, a 13-year-old student at the school (Jane Doe), filed suit asserting numerous claims against L&M, alleging that she was sexually abused by Hecht. One of Doe’s claims against L&M alleged negligent hiring, retention, and supervision of Hecht. L&M’s insurer, Liberty Surplus Insurance Corporation, agreed to defend L&M under a reservation of rights.

Liberty sought declaratory judgment in federal court that Liberty was not obligated to defend or indemnify L&M against Doe’s lawsuit, arguing that L&M’s negligence did not constitute an “occurrence” under the commercial general liability policy. The policy provided L&M coverage for liabilities arising from “bodily injury” caused by an “occurrence.” The policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The District Court held that Liberty was not obligated to defend or indemnify L&M in the underlying action because L&M’s negligent hiring, retention, and supervision of Hecht was “too attenuated from the injury-causing conduct” of Hecht to fit the policy definition of “occurrence.”

L&M appealed to the United States Court of Appeals for the Ninth Circuit, which then issued an order certifying the issue to the Supreme Court of California. The Ninth Circuit sought guidance because “California law [wa]s unsettled in this area,” and because of the “significant precedential and public policy importance” of the outcome. The Supreme Court of California agreed to answer the following question: “When a third party sues an employer for the negligent hiring, retention, and supervision of an employee who intentionally injured that third party, does the suit allege an ‘occurrence’ under the employer’s commercial general liability policy?”

The Court explained that the term “accident” in liability insurance policies in California is a settled matter. “[A]n accident is ‘an unexpected, unforeseen, or undersigned happening or consequence from either a known or unknown cause” and refers to the conduct of the insured. Additionally, the term “includes negligence,” which indicates that a policy that provides coverage to the insured for injuries caused by an “accident” includes coverage for injuries resulting from the insured’s negligent actions.

The Court also analyzed the District Court’s decision and determined that the court engaged in faulty reasoning both in terms of causation and its reading of the relevant case law. The District Court determined that L&M’s alleged negligent actions were “too attenuated” from Hecht’s actions to be considered the “cause” of Doe’s injuries. However, this line of reasoning runs contrary to California cases that have recognized that negligent hiring, retention, or supervision can be a substantial factor in causing the harm to a third party due to the actions of an employee.

Additionally, the District Court misplaced reliance on a number of cases to support its proposition that L&M’s allegedly negligent actions do not qualify as “accidents” simply because they did not anticipate the injury to occur. However, the cases that the District Court cited were distinguishable from the case at hand in various critical ways and thus did not support the District Court’s proposition.

Minkler v. Safeco Ins. Co. of America is the controlling authority on this issue (Minkler v. Safeco Ins. Co. of America (2010) 49 Cal.4th 315.) In Minkler, a Little League coach was sued by a player for sexual molestation. The player also sued the coach’s mother for negligent supervision and failure to prevent the molestations in her home. The coach and the mother committed independent torts, but the coach’s intentional actions did not preclude the mother from coverage. Although insurance does not usually cover intentional injuries, the Court stated, “[t]here is no overriding policy reason why a person injured by sexual abuse should be denied compensation for the harm from insurance coverage purchased by the negligent facilitator.”

If the Court had decided in Liberty’s favor, employers would not be covered for claims of negligent hiring, retention, or supervision in situations where employees engage in intentional actions, a result that would be fundamentally inconsistent with existing California case law. For that reason, the court ruled in favor of L&M, stating that, “absent an applicable exclusion, employers may legitimately expect coverage for [claims of negligent hiring, retention, or supervision whenever the employee’s conduct is deliberate] under comprehensive general liability insurance policies, just as they do for other claims of negligence.” This holding protects the reasonable expectations of policyholders and makes clear that the coverage analysis should be focused on the conduct alleged against the particular insured seeking coverage. Thus, if there are claims against multiple actors, the specific claims against each individual actor need to be analyzed separately.

The California Supreme Court’s decision will have implications beyond the employment situation dealt with in the case; for instance, the Court ordered briefing deferred in Travelers Property Casualty Co. of America v. Actavis, Inc., Case No. S245867, pending this decision. In that case, the Court will consider whether Travelers owed its pharmaceutical company insured a duty to defend or indemnify in an action involving underlying claims involving liabilities arising from the sale and marketing of opioids. We will report on that decision as soon as it comes down.

Say What? The Rise Of Criminal Liability For Construction Accidents

Christopher D. Myers and Cheri T. Gatlin | Best Practices Construction Law | May 18, 2018

“To err is human; to forgive divine.” – Alexander Pope, “An Essay on Criticism.”

Last week marked the end of Construction Safety Week 2018, a combined effort by the Construction Industry Safety (CISI) group and the Incident and Injury Free (IIF) CEO Forum. Together these entities are comprised of 80 national and global construction firms, with a goal of promoting safety in the construction industry. Concern for safety is apparent on construction projects throughout the country and world, as evidenced by daily/weekly construction briefings and the familiar “___Days Since a Lost Work Accident” signs. People that work in the Construction Industry know firsthand the dangers and want to see their co-workers go home safely to their families after a long day. In addition, time is money in this business. Safe projects are more likely to be profitable projects due to lack of delays and prevention of claims for jobsite injuries. For employers, criminal liability for job site construction accidents is more and more a concern. Mainstream headlines highlight several cases where construction accidents = criminal charges.

From the well-publicized October 21, 2016 drowning of two construction workers in Boston after a trench in which they were working collapsed, to the March 18, 2018 pedestrian bridge collapseat Florida International University (FIU), which killed 6 and injured 9 more, construction accidents that result in loss of life are commonly viewed as more than “accidents.” There appears to be a trend toward construction incidents being investigated by various agencies for criminal liability. Inevitably, accidents happen in every area of life, from “fender bender” automobile accidents to high profile construction accidents, which result in extensive property damage and, unfortunately at times, loss of life. When, though, is an accident something more?

With regard to the Boston trench collapse, the Suffolk County District Attorney’s office presented evidence of manslaughter against the employer—both as a corporate entity and the company’s owner—related to the accident. There, the deceased were killed when underground materials supporting a hydrant in an allegedly unshored hole they were digging gave way and the hydrant burst, flooding the trench. Prosecutors claim the employer was pushing the men to work faster because the project was behind schedule. Motions to Dismiss manslaughter charges were considered and denied, leaving the employer and its owner subject to criminal prosecution. In an industry where liquidated damages and other pressures lead to acceleration, this is a headline of note.

In Florida, we await all the facts on the FIU bridge collapse, a decision by the Dade County State Attorney’s office on possible criminal action. However, a charge of “Culpable Negligence” could be in play. In Florida, the crime of Culpable Negligence is defined as a course of conduct “showing reckless disregard for human life, or for the safety of persons exposed to its dangerous effects, or . . . which shows wantonness or recklessness . . . [or] an indifference to the rights of others as is equivalent to an intentional violation of such rights.”

As Construction Safety Week concludes, Burr congratulates all our clients that participated in the activities. Focusing on safety is critical to the industry’s success and the life and livelihood of those who rely upon it.

When Should an Accident be an Accident?

Charles P. Edwards | Barnes & Thornburg LLP | November 27, 2017

Standard commercial general liability (CGL) insurance policies provide coverage for damages the policyholder is legally obligated to pay because of property damage or bodily injury caused by an “occurrence.” CGL policies typically define “occurrence” as an “accident.” Courts define an accident as “an unexpected happening without an intention or design.” Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279, 1283 (Ind. 2006).

Simple, right? Unfortunately, a trilogy of cases from the Indiana Supreme Court have caused confusion on this issue, particularly where the policyholder may have errors and omissions (E&O) coverage.

In Harvey, a 16-year-old girl, Brandy, fell into a river and drowned after being intentionally pushed during an altercation with a boy, Toby. Toby admitted that he intended to push Brandy, but denied that he intended to harm her. Brandy’s parents filed a wrongful death action alleging Toby’s conduct was negligent and reckless and a declaratory judgment action against Toby’s homeowner’s insurer, Auto-Owners. Auto-Owners denied it had any duty to defend or indemnify Toby, arguing that Toby’s conduct was not an “occurrence” and that it fell under the exclusion for “intended and expected harm.”

The Indiana Supreme Court concluded that, “[u]nder the facts of this case … the meaning and application of this [occurrence] provision is unclear.” Id. at 1284. If judged by Toby’s conduct, there clearly was no accident; but if judged by the result – Brandy’s fall and drowning – then there was an accident, because Toby did not intend for that to happen. The court specifically rejected the rule applied by other courts that “a volitional act – which is always intended – does not constitute an accident, even where the results may be unexpected or unforeseen.” Id. at 1285. The court called such a rule “unclear, potentially confusing, and likely to result in subjective and unpredictable judicial applications.” Id. at 1285–86.

In discussing what constitutes an “occurrence,” the court mentioned, but did not expressly follow, a number of cases applying the definition “to circumstances remote from instances of specific personal physical conduct, but rather arising from claims based on commercial or professional conduct.” Those cases included R.N. Thompson & Assoc. v. Monroe Guar. Ins. Co., 686 N.E.2d 160, 164–65 (Ind. Ct. App. 1997), in which the Court of Appeals held that economic losses from construction defects are not an occurrence.

In 2009, the Indiana Supreme Court addressed the occurrence issue in Tri-Etch, Inc. v. Cincinnati Ins Co., 909 N.E.2d 997, 999 (Ind. 2009). That case involved a liquor store clerk (Young) who was abducted shortly before midnight, tied to a tree in a local park, and beaten. He was found the next day alive, but later died of his injuries. Young’s estate sued the alarm company (Tri-Etch) alleging it negligently failed to notify the store’s manager within 30 minutes of closing that the night alarm had not been set, and that if Tri–Etch had acted promptly, Young would have been found earlier and would have survived. The jury in that case found against Tri-Etch and awarded $2.5 million to Young’s estate.

In the coverage case, the Indiana Supreme Court considered whether Tri-Etch’s failure to notify the store manager after the alarm had not been set constituted an occurrence. In holding it was not, the court distinguished Harvey by noting that, “in Harvey, we noted the distinction between an ‘occurrence’ as the term is used in CGL policies, and claims based on ‘commercial or professional conduct.’” Id. at 1284. One of those cases, as mentioned, was R.N. Thompson.

The Tri-Etch court went on to note that, “[c]laims based on negligent performance of commercial or professional services are ordinarily insured under ‘errors and omissions’ or malpractice policies. For this reason, CGL policies typically exclude claims arising out of professional or other business services.” Id. Indeed, the court ultimately held that in addition to not being an “occurrence,” the claim was excluded by the professional services exclusion.

What the Tri-Etch court did not discuss, because it was not presented, is that most E&O and malpractice policies exclude coverage for bodily injury or property damage, because those damages are covered by CGL policies. As in Tri-Etch, a professional services exclusion may be added to a CGL policy, but that is usually a specific endorsement, which applies only to specific excluded services. Moreover, the mere offering of this exclusion in the insurance marketplace suggests insurers do intend to provide coverage for bodily injury and property damage caused by a professional error or omission in the absence of the exclusion.

One year later, the Indiana Supreme Court again visited the “occurrence” issue in Sheehan Const. Co. v. Cont’l Cas. Co., 935 N.E.2d 160 (Ind.), opinion adhered to as modified on reh’g, 938 N.E.2d 685 (Ind. 2010). In Sheehan, the court overturned R.N. Thompson and held that faulty workmanship was an “accident” and “occurrence” under a CGL policy “so long as the resulting damage is an event that occurs without expectation or foresight.” Id. at 169. The court explained:

As applied to the case before us, if the faulty workmanship was the product of unintentional conduct then we start with the assumption, from Sheehan’s viewpoint, that the work on the Class members’ homes would be completed properly. The resulting damage would therefore be unforeseeable and constitute an “accident” and therefore an “occurrence” within the meaning of the Insurers’ CGL policies.

Id. at 170. This holding was consistent with the court’s earlier holding in Harvey, in that it focused on whether the act was intended to cause the result.

Sheehan should have put an end to any confusion caused by Tri-Etch and returned us to the clear rule of Harvey and clear focus on whether the act – even if intentional – was intended to cause the result. Unfortunately, it appears from a recent decision that Tri-Etch’s reliance on Harvey’s reference to pre-Sheehan cases and speculation about E&O policies may still have some traction.

In Allstate Ins. Co. v. McColly Realtors, Inc., No. 2:16-CV-00142, 2017 WL 4938154 (N.D. Ind. Oct. 31, 2017), a family died as a result of carbon dioxide emitted from a generator in the garage of a home they were renting. The estate filed suit against the realtor (McColly) for failure to warn of latent or concealed dangers and failure to register the home as a rental in McColly’s dealings with the owner of the home. McColly sought coverage under its CGL policy. The court concluded that Allstate did not have a duty to defend or indemnify McColly, following Tri-Etch’s discussion of E&O insurance. The court concluded that, “[t]his claim alleges a professional error or omission, rather than an accident or occurrence.” Id. at *8. The court’s conclusion likely means little to McColly if its E&O policy contains exclusions for bodily injury or property damage.

The interplay between CGL coverage and E&O coverage is illustrated by Wayne Twp. Bd. of Sch. Comm’rs v. Indiana Ins. Co., 650 N.E.2d 1205, 1207 (Ind. Ct. App. 1995). That case involved a school that was sued for its negligence in connection with its principal’s alleged molestation of a student. The school sought coverage under both its CGL policy and its E&O policy. The court held that the allegations against the school did allege an occurrence, noting that “Indiana Insurance has not designated any evidence demonstrating that the school’s alleged conduct was not an accident: there is no evidence that the school intended or expected Barger’s misconduct or that the molestation was the result of the school’s intent or design.” Id. at 1209. The court held that the claims against the school were, however, excluded under the E&O policy, which excluded “any damages, whether direct, indirect or consequential, arising from, or caused by, bodily injury, personal injury, sickness, disease or death.” Id. 1211–12.

Wayne Township reflects the correct “occurrence” analysis when evaluating CGL coverage for a company sued for negligently inflicted bodily injury or property damage. Courts should not speculate about what is or is not covered by any E&O policy. Nor should they determine the “occurrence” issue based on whether the claim is based on commercial or professional conduct, or alleges a professional error or omission. Many companies do not have E&O coverage (because they do not engage in professional services), and many E&O policies contain exclusions for bodily injury or property damage (precisely because those items of damage are covered by CGL policies). The sole focus, instead, should be on whether the complaint alleges an accident, which should be governed by Harvey/Sheehan rule – whether the conduct unintentionally results in bodily injury or property damage.

Construction Law Practice Tip: General Contractor Liability for Subcontractor Injury

Pierre Grosdidier | Haynes and Boone LLP | October 26, 2017

AIA Document A201TM, General Conditions of the Contract for Construction (the “General Conditions”), is a form agreement often incorporated into a main contract between an owner and a general contractor.1 The General Conditions place project control squarely in the hands of the general contractor. The issue is important because who controls the project might end up owing a duty of care to injured independent contractor employees.2 For example, in Saenz v. David & David Constr. Co., Inc., Saenz, an independent contractor employee, appealed the trial court’s take-nothing judgment in favor of David & David after a crane load struck him on the head, precipitating his fall from a roof.3 Saenz argued, inter alia, that the contract between the owner and David & David, and the subcontract between the latter and Saenz’s employer gave David & David control as a matter of law. The contract between the owner and the general contractor contained clauses almost identical to those in General Conditions §§ 3.3.1, 5.3, and 10.2.1.4 The contract provided that

[t]he contractor shall be solely, subject to the terms of Article 4, responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the contract unless contract documents give other specific instructions concerning these matters[;]5

and that

[t]he contractor shall take all necessary precautions for safety and shall provide all necessary protection to prevent damage, injury or loss to all persons on the work and other persons who may be affected thereby.6

But the contract also required the general contractor to pass its obligations on to its subcontractors via the following clause:

The contractor shall require each subcontractor, to the extent of the work to be performed by the subcontractor, to be bound to the contractor by terms of the contract documents and to assume towards the contractor all obligations and responsibilities which the contractor by the contract documents assumes towards the owner and architect.7

The court held that this last “contract clause modified the previous control clauses.” The subcontract gave effect to this last clause with the following clause:

Subcontractor . . . assumes the responsibilities of an employer for performance of the Work and acts as an employer of one or more employees by paying wages, directing activities, and performing other similar functions. Subject to the right (but not the obligation) of [David & David] to direct Subcontractor or its employees to cease or change unsafe work practices. Subcontractor is an independent contractor, free to determine the manner in which the Work is performed. (emphasis added).8

The court held that the contracts assigned “the contractor’s responsibility for controlling the construction means, methods, techniques, sequences and procedures” to the subcontractor. The court could not agree, in light of the two contracts, that “David & David’s control of the subcontractor’s work is uncontroverted and thus established as a matter of law.”9 The court overruled Saenz’s issue on appeal and affirmed the trial court’s take-nothing judgment in favor of David & David. This next case shows what happens when the subcontract does not include a provision that passes project control to the subcontractor for the latter’s scope of work.

In Maggi v. RAS Dev., Inc., the plaintiff, a subcontractor’s employee, fell from a height on a construction site and died of his injuries.10 A jury awarded Maggi’s estate $3.3 million against RAS Development, the general contractor. On appeal, RAS Development argued, inter alia, that it should not be held liable for Maggi’s death because it did not control or supervise his work. The subcontract between RAS Development and Maggi’s employer “expressly incorporated” AIA Document A201TM, including form language from §§ 3.3.1, 3.3.2, 10.1, 10.2.1, 10.2.3, and 10.2.6, which gave the contractor control of the worksite and responsibility for its safety. For example, the General Condition’s § 3.3.1 stated that

[t]he Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for and have control over, construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract documents give other specific instructions concerning these matters.11

The court of appeals held that these clauses made it “clear that the parties intended RAS Development to be responsible for supervising, directing, and controlling the construction project,” and it affirmed the trial court’s judgment.12 We can infer that the subcontract did not contain a provision passing control to the subcontractor and making the latter an independent contractor, free to perform its work, as in Saenz.13 RAS Development might have avoided a holding of control-by-contract had such a provision been in place.14

Construction Companies Can Be Liable for “Secondary Exposure” of Asbestos to Household Members

Garret Murai | California Construction Law Blog | October 19, 2017

The history of asbestos regulation in the United States is complicated. Prior to the 1970s, asbestos-containing materials used in construction was widespread.

In 1971, when the U.S. Environmental Protection Agency issued an emissions standard for asbestos as part of the Clean Air Act. In 1972, the EPA extended this regulation to an occupational standard and, over the next decade, the EPA together with the U.S. Occupational Safety and Health Administration and the U.S. Consumer Product Safety Commission issued a wide array of regulations aimed at asbestos.

Finally, in 1989, the EPA enacted the “Asbestos Ban and Phaseout Rule,” which would have eliminated nearly 94 percent of all asbestos-containing products. However, the ban and phaseout was overturned in 1991 by the Fifth Circuit Court of Appeals in Corrosion Proof Fittings v. EPA (5th Cir. 1991) 947 F.2d 1201, on the grounds that the EPA had not considered alternative regulations short of prohibition.

While an outright ban on asbestos failed in the U.S., the use of asbestos has been curtailed significantly over the years, primarily due to asbestos litigation, which continues today.

The next case, Petitpas v. Ford Motor Company, Case No. B245037 (July 5, 2017), discusses the breadth these asbestos cases can take and how crazy these cases can get in terms of the evidence.

Petitpas v. Ford Motor Company

In Petitpas, husband and wife Marline and Joseph Petitpas sued Ford Motor Company, Exxon Mobil Corporation, Rossmoor Corporation and others alleging that exposure to asbestos through Joseph’s work resulted in “secondary exposure” of asbestos by Marline.

Joseph’s Work at Enco

Joseph and Marline met in 1966 while Joseph was working at an Enco service station in Pomona, California. Humble Oil, a predecessor company of Exxon, owned the Enco service station. Joseph later worked at different Enco service stations in in Ontario and Pleasanton, California.

While working at the Enco service station, Joseph did a variety of work on Ford cars including brake inspections and replacements. He did brake inspections two or three times a day and brake replacements two or three times a week. During this work Joseph used an air compressor to blow dust out of wheel assemblies to check or change brakes.

According to Marline, she watched Joseph do brake work on a total of seven to ten cars at the Enco station, and while should couldn’t recall the make or model of those cars, the work created dust which she breathed in. Marline also testified stat she watched Joseph clean up at the end of the day, which involved blowing or sweeping the floor, which also created dust which she breathed in. And finally, according to Marline, while she and Joseph were dating, Joseph would wear his Enco service shirt when they went out after work and, after they were married, Marline would wash Joseph’s uniform.

Joseph’s Work at Leisure World

Later, Joseph went to work for Rossmoor as a draftsman. At the time, Rossmoor was building Leisure World, a large retirement community in Walnut Creek, California. While at Rossmoor, Joseph would visit the construction site as part of the work. He typically spent an hour to an hour and a half at the project site. At first, he drove his own car to the site, and later he used a company car for visits. Leisure World used gypsum drywall, joint compound, textured ceiling material and stucco at the project.

According to Joseph, they owned one car, and once or twice a week Marline would drive him to work in the morning and pick him up in the evening. When Marline would pick up Joseph they would typically hug one another. Joseph also occasionally came home for lunch. Joseph testified that before he left a construction site he might stomp his feet or brush off his pants if dusty, but that it was “very possible” that dust from the construction site might be on his lower pants at the end of the day. With the exception of Joseph’s slacks, Marline would wash Joseph’s shirts, socks and underclothes. In addition, on occasion, according to Joseph, he would show Marline the partially completed buildings while no one was around.

According to the Petitpas’ experts, numerous studies had connected asbestos to lung disease, that asbestos from joint compound, textured ceilings and brakes can cause mesothelioma, and that each exposure to asbestos raised Marline’s risk of developing mesothelioma.

Rossmoor’s Motion for Non-Suit

Following the Petitpas’ presentation of their case at trial, Rossmoor moved for non-suit (note: a motion for non-suit is a motion presented by a defendant after a plaintiff has presented its case at trial contending that the plaintiff has failed to prove each element of its causes of action) contending that it owed no duty to protect family members of workers working in an environment with asbestos, arguing that it was irrelevant whether such exposures occurred “from laundering the clothes, from riding in the same automobile as someone who was directly exposed or giving someone a hug in the parking lot by the office.”

Rossmoor also contended that there was no evidence that Marline was directly exposed to asbestos at the Leisure World project site, arguing that “there is no testimony that they were at the house at the time that the construction work was going on and/or that they  were even on the premises at the time that construction work was going on where there was any  potential release of asbestos fibers” and that “Mrs. Petitpas specifically testified that, when she walked into the house, she didn’t see any dust.”

In response, the Petitpas’ responded that expert testimony had showed “that the nature of respirable asbestos fibers are, in fact, microscopic and invisible to the naked eye,” that only specialized testing can demonstrate if there are asbestos fibers in the air, and because the houses were under construction at the time “that asbestos and asbestos dust, asbestos laden dust was in the structures. And . . . it doesn’t go out. So there doesn’t need to be someone actively doing work for asbestos exposures to occur.”

The trial court granted Rossmoor’s motion and the Petitpas’ appealed.

The Appeal

On appeal, the Court of Appeal explained that the California Supreme Court, in the recently decided case Kesner v. Superior Court (2016) 1 Cal.5th 1132, had held that companies can be held liable for “secondary exposure” if asbestos from a job site causes someone in a worker’s home to become sick.

However, held the Court, “in the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.”

And, here, while it was “possible” that Marline was exposed to asbestos from dust on Joseph’s clothing because Joseph was in the presence of dust that may have contained asbestos and Marline was in the presence of Joseph, the “[m]ere presence at a site where asbestos was present is insufficient to establish legally significant asbestos exposure.”

Rather, explained the Court of Appeals “”[a] possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.” And, here, while the Petitpas’ expert had testified that exposure <em>could</em> have occurred if Marline shook visible dust from Joseph’s clothing or if Joseph dusted off his pants in the presence of Marline, no one testified that either of these hypothetical scenarios had in fact occurred.

Conclusion

For those involved in the construction industry, Petitpasis warning that your duty to your workers can extend to their household members as well. The case is also illustrative of the breadth of evidence considered in such cases – possibilities versus probabilities – and degree to which the strength of a plaintiff’s evidence is dependent on the testimony of the plaintiffs themselves. After all, the case could have easily turned the other way had either Mr. or Mrs. Petitpas testified that it was likely that Joseph had dusted off his pants in front of Marline.