COA finds electrician can sue companies after mesothelioma diagnosis

September 28, 2016

The Indiana Court of Appeals held Wednesday that an electrician can sue the companies where he previously worked as an independent contractor for negligence and liability after he was exposed to asbestos.

Larry Myers worked as an electrician for Koontz-Wagner Electric from 1961 to 1980, serving as an independent contract for companies such as Bremen Casting and Mastic Home Exteriors Inc. During his time as an electrician, Myers was not trained or hired to handle asbestos, so he did not wear protective gear, which resulted in his 2014 diagnosis of malignant pleural mesothelioma as a result of asbestos exposure.

Myers subsequently filed a complaint against Bremen, Mastic and nearly 40 other companies, alleging that the defendants negligently hired Myers and were vicariously liable for his diagnosis as principals, and further liable as premises owners. The defendants knew or should have known about the dangers of asbestos, Myers claimed, and should have warned him of those dangers.

The defendants moved for summary judgment in the case of Larry Myers and Loa Myers v. Bremen Casting, Inc. and Mastic Home Exteriors, Inc., 49A04-1503-MI-113, which the Marion Superior Court granted partially in their favor. However, the court denied summary judgment on a respondeat superior claim, writing that there was a genuine issue of material fact as the whether the defendants’ actions exposed Myers to asbestos.

Myers then appealed, arguing that the defendants owed him a duty of care, even though he worked for them as an independent contractor, on the basis of the non-delegable duty doctrine, which holds that principals can be liable for negligence of an independent contractor in five instances, including in the case of intrinsically dangerous work or in the case of an act that will probably cause injury without due precaution.

In its Wednesday opinion, the Indiana Court of Appeals wrote that Myers could not invoke the intrinsically dangerous exception because working with asbestos is not intrinsically dangerous as a matter of law.

However, the Court of Appeals also wrote that the defendants did not establish that asbestos exposure was a common risk among electricians and, therefore, Myers could invoke the due precaution exception of the non-delegable duty doctrine. Thus, the appellate court wrote that the Marion Superior Court erred when it granted the defendants summary judgment on Myers’ non-delegable duty claim.

Bremen, Mastic and the other defendants cross-appealed the trial court’s decision to deny summary judgment on the respondeat superior claim, arguing that as a matter of law, they do not owe a duty to an independent contract who is injured by the condition he is employed to address.

But the Court of Appeals wrote that the evidence did not undisputedly show that Myers was injured by the condition he was employed to address, so the defendants did owe him a duty of care under respondeat superior, and the trial court did not err when it denied summary judgment on that claim.

Similarly, the Court of Appeals also disagreed with the defendants’ cross-appeal on the basis that they could not have breached their duty of care to Myers because he was injured by the condition he was employed to address. Thus, the appellate court found that the Marion Superior Court erred when it granted the defendants summary judgment on Myers’ premises liability claim.

The Court of Appeals’ Wednesday opinion concluded that the defendants were not entitled to summary judgment on any of Myers’ liability claims and, therefore, remanded the case for further proceedings.


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