Sarah O'Leary of Governo Law Firm was quoted in an article published on May 13, 2015 in Law360, entitled "Texas Justices Arm Property Owners Facing Asbestos Claims." The article discusses the Texas Supreme Court's decision in Magdalena Adrienna Abutahoun and Estate of Robert Wayne Henderson v. The Dow Chemical Company, case number 13-0175. This case involved the application of Texas Civil Practice and Remedies Code Chapter 95 as it applied to claims brought by the family of pipeline insulator Robert Henderson against the owner of a chemical facility where Henderson assisted with insulation work from 1967 to 1968.
When Mr. Henderson was diagnosed with mesothelioma, Plaintiffs sued Dow, alleging that he was exposed to insulation on the premises both by virtue of his work and the work of his Win-Way coworkers, but also alleging that employees of the chemical company exposed him to asbestos by their actions installing, sawing and removing asbestos insulation nearby. Dow filed a Motion for Summary Judgment seeking dismissal of the suit on the grounds that the claims against it were barred because plaintiff could not offer evidence to meet the requirements of Texas' Chapter 95 which limits the liability of property owners for acts of independent contractors. Texas' asbestos multi-district litigation (MDL) pretrial court in Harris County, Texas granted Dow's motion for summary judgment as to all claims arising from decedent's action or any actions by decedent's coworker employees on the premises but denied Dow's motion as to plaintiff's claims that Henderson was injured by conduct of defendant's own employees. The case was tried before a jury which found Dow 30% responsible for causing Henderson's injuries and awarding Plaintiffs $2.65 million plus interest and costs. Dow appealed the jury verdict on the basis that the plan language of Texas' Chapter 95 bars plaintiff's negligence claims because the plaintiff failed to prove that Dow controlled Henderson's work and had knowledge of the hazards of asbestos exposure. The Court of Appeals reversed the jury verdict accepting Dow's construction of Chapter 95. The Supreme Court of Texas granted Plaintiffs a rehearing in consideration of a split of decisions on this issue in Texas' Appeals Courts. The Supreme Court affirmed, holding that the statute was unambiguous and did not permit claims against property owners without proof that they had control over the work and knowledge of the alleged hazard.
Ms. O'Leary explained that "many other states have common law requirements that impose similar constraints on contract worker plaintiffs targeting premises owners in asbestos exposure cases, but Texas' explicit statute on the matter offers stronger shields for premises owners." O'Leary was quoted as saying "other states would also ask for a similar inquiry into a premises owner's control or lack of control over a contractor's work, or knowledge of a latent condition that an independent contractor wouldn't know about" but in Texas Chapter 95 "gives property owners more protection."
In the Law360 article, Plaintiff counsel characterized the decision as a loss which could potentially reduce settlement values, commenting that this ruling will restrict plaintiffs' success at seeking compensation from premises owners where they were allegedly exposed to asbestos and challenge them to develop additional evidence in discovery to attempt to show that a premises owner had clear control over a contractor's employee's work.