Does an Old Asbestosis Settlement Eliminate Your Rights to a Mesothelioma Claim?
Many people are diagnosed with asbestosis and receive compensation for that diagnosis, only to later be diagnosed with malignant mesothelioma, a far more serious asbestos-related disease. A case recently heard in the state of Louisiana makes clear that victims who receive funds for the earlier illness are not blocked from filing claims for a subsequent diagnosis.
Shipyard Worker Dies of Mesothelioma Years After Receiving Compensation for Asbestosis
Callen L. Dempster died of malignant mesothelioma after 32 years of asbestos exposure while working for Avondale Shipyards. When his family pursued a personal injury lawsuit seeking compensation for the damages that he suffered from the painful terminal disease, they were met with resistance from the shipyard, whose attorneys pointed to a settlement he had received in 1991 following a diagnosis of asbestosis.
Like mesothelioma, asbestosis is caused by exposure to asbestos. But mesothelioma is a fatal disease, while asbestosis is survivable, and there is no comparison between the diseases’ costs. When Avondale filed a motion for summary judgment to have the case dismissed, the family fought back, arguing that when Dempster had signed the settlement agreement decades earlier he’d had no idea that there was any risk of contracting a future cancer, and that the settlement he received was of “nuisance value.”
Judge Agrees with Mesothelioma Victim’s Family
Chief Judge Nannette Jolivette Brown of the U.S. District Court agreed with the mesothelioma victim’s family and denied the motion to have the case dismissed. She pointed out that Louisiana law states that if a release instrument “leaves any doubt as to whether a particular future action is covered by the compromise, it should be construed not to cover such future action.” She further pointed to previous cases involving similar settlement questions where courts had ruled that a release “did not bar a plaintiff’s mesothelioma claim because the $500 settlement was a mere nuisance settlement,” and that where a release instrument “leaves any doubt as to whether a particular future action is covered by the compromise, it should be construed not to cover such future action.
Based upon these previous decisions, the judge permitted Mr. Dempster’s family to proceed with their mesothelioma claim against those who had exposed him to asbestos, indicating that the asbestosis settlement was not meant to prevent him from pursuing justice for a worse diagnosis in the future.
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