In Asbestos Settlements, It Pays to Make Noise

 

The un-squeaky wheel loses out on the grease. At least, that was the way it went for a couple hundred Brayton Purcell clients in an appellate case this week.

 

The concept of settling with a group of former asbestos producers would seem, at first, to be a great idea for both sides: plaintiffs can negotiate with a single corporation, the Center for Claims Resolution, and in return CCR’s member companies get the claims against all of them dropped in one swoop. But that model of efficiency loses some luster when one of the companies decides to renege on its share of the payment.

The plaintiffs represented by Brayton Purcell — all 288 of them — wanted the court to find that CCR’s member companies were jointly and severally liable under the settlements, making it CCR’s problem to come up with the missing funds. But they got no love for that argument in San Francisco Superior Court. And on Wednesday, the First District Court of Appeal upheld the trial court’s decision in favor of the defense.

In its unpublished opinion, the First District didn’t review the lower court decision de novo, but went with a more forgiving standard that looks to see if there was any substantial evidence to support the lower court. The justices’ conclusion? The plaintiffs had been quiet — too quiet.

The court noted there’s a statutory presumption that such multi-party agreements are joint and several — unless there is evidence that the settling parties didn’t intend it that way. Here, the appeal court found CCR had twice made its viewpoint clear — that is, that it believed the onus was on the plaintiffs to recoup missing money from any wayward defendants — both in letters to plaintiffs’ counsel and in a separate suit in which Brayton Purcell had participated. At the same time, the appeal court found no evidence showing the plaintiff lawyers had contradicted CCR’s view. “Their inaction,” the justices concluded in Adamson v. Amchem Products Inc., A110664, “supports adoption of defendants’ interpretation.”

— Pam Smith

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