Calif. appeals court: Blaming Navy for asbestos is OK

By John O'Brien | Jun 4, 2010

SAN FRANCISCO (Legal Newsline) - Blame can be placed on the U.S. Navy for asbestos exposure, a California appeals court ruled Thursday.

The decision came after one of 17 entities that could have been ordered to pay a percentage of damages in an asbestos lawsuit appealed the exclusion of the Navy. Ulysses Collins died in 2005 of mesothelioma and worked in naval shipyards from 1960-73 and 1976-94.

A jury allocated 20 percent of fault to Plant Insulation Company, which appealed to the state First District Court of Appeals. The overall verdict is worth $10 million.

"Plant argues the Navy's immunity is essentially one from suit and does not mean the service owes no duty of care as to its enlisted personnel and civilian employees and thus cannot be characterized as a 'tortfeasor' for purposes of Proposition 51," the decision says.

"Plaintiffs contend sovereign immunity is based on the historical adage 'the King can do no wrong' and therefore the Navy's actions cannot be 'wrongful' and thus no 'fault' can be allocated to the service.

"We agree with Plant and conclude the Navy is properly included among those entities to which fault may be apportioned in an asbestos case."

Attorney Mark Behrens of Shook Hardy & Bacon said having the Navy on the verdict form is "significant."

"My understanding is that Collins was an outlier and that most California courts have listed the Navy on verdict sheets in asbestos cases," Behrens said.

"The appellate court's decision thus settles the practice and prevents other trial courts from going awry in the future."

Fifteen percent of blame was attributed to Fibreboard, 5 percent to Chevron/Standard Oil, 30 percent to Owens-Corning Fiberglas/FENCO/Kaylo, and 30 percent to Johns-Manville/Western Asbestos/Western MacArthur.

The court wrote the Navy is "immune from liability" in the case because of an exception to the Federal Tort Claims Act that bars actions based on the federal government's alleged negligence in using asbestos on ships.

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