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NJ Workers' Compensation Carriers Win a "Get Out of Jail Card" on Asbestos Liability Claims

NJ Workers' Compensation Carriers Win a "Get Out of Jail Card" on Asbestos Liability Claims

Workers' Compensation

Workers' compensation insurance companies have a long history of guarding themselves against liability from asbestos exposure issues. Recently the NJ courts have ruled that workers' compensation insurance companies are shielded from liability when the insurance company performs hygiene studies and does not take action to protect the employees that it has insured under the policy. This ruling further limits the ability of asbestos victims to obtain benefits.

The court in Fackelman v Lac d'Amiante du Quebec, LTEE, et al., 942 A. 2d 127 - NJ: Appellate Div. 2008, ruled that workers' compensation carriers are shielded from liability for failing to notify workers of known hazards on the job site and make efforts to correct them. An asbestos victim worked at the Owens-Corning plant in Berlin, NJ, for 10 months as a stripper of Kaylo, asbestos pipe covering. The ambient air conditions were described as "dusty" and "foggy" in the plant. His employer provided no information to the employee about high levels of asbestos fiber, and a mask was not required to be worn. Air testing was conducted by the workers' compensation insurance carrier, but the employees were not informed as to the results nor the hazards of asbestos fiber. The employee was diagnosed with asbestosis in 2002.

Between 1958 and 1972, Aetna insurance company conducted air testing at the plant. The testing revealed that asbestos in the air (10,000,000 parts per cubic foot) at the plant far exceeded the minimum standards then in place. Aetna had meetings with Owens and discussed with Owens Corning, the employer, what actions should be taken to improve the industrial environment.

The asbestos worker filed a civil action against Aetna for failing to warn the employees of the hazardous conditions and for its failure to minimize the exposure to a safe level at the Owens Corning plant. The Court dismissed the case and did not extend third-party liability against the workers' compensation carrier. The court reasoned that there was no surrender of responsibility to maintain a safe workplace from the employer to the insurance carrier. The court also held that no common law liability for an insurance carrier did not have a duty "to reduce the risks of exposure or to warn the employees directly."

The long history of the insurance industry's involvement with the asbestos industry has been memorialized in depositions and affidavits for decades. The conspiracy of silence has led to premature, needless, and agonizing deaths of those exposed to asbestos fiber. NJ has been reported to have one of the highest rates of asbestos-related disease in the US. That should be no surprise since it is the legacy of the State's enormous rate of asbestos production during the war years and shortly thereafter.

The NJ compensation system for paying benefits to asbestos victims is stagnant. The recent legislation to provide help from the "Uninsured Employers Fund" has been ineffective in moving the cases along and adequately compensating asbestos victims. The civil litigation system has been bogged down in bureaucratic bankruptcies. Hopefully, the NJ Legislature will see fit to review this inequitable situation and provide speedy and remedial benefits to asbestos victims.


The author, Jon L. Gelman, practices law in Wayne, NJ. He is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman  1.973.696.7900 have represented injured workers and their families who have suffered occupational accidents and illnesses.

Recommended Citation: Gelman, Jon L.,  NJ Workers' Compensation Carriers Win a "Get Out of Jail Card" on Asbestos Liability Claims, (2008),

© 2001-2023 Jon L Gelman. All rights reserved.

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