When a company is unable to pay liabilities related to asbestos exposure, it may file for Chapter 11 bankruptcy protection. Companies that successfully file are protected from lawsuits.
Asbestos companies are reviewed for bankruptcy reorganization under section 524(g) of the U.S. Bankruptcy Code. They attempt to fund trusts with enough money to pay current and future asbestos claims.
Companies establish the trusts, but trustees manage them and decide the amount of compensation paid to claimants.
In total, all asbestos bankruptcy trusts hold more than $30 billion. This figure comes from a 2016 report from RAND Corporation’s Institute for Civil Justice.
These trusts have paid claimants approximately $18 billion since the late 1980s. This figure includes an estimated $15 billion from 2006 to 2012.
How Much Compensation Can Asbestos Trusts Pay Claimants?
The amount of compensation a claimant can receive from an asbestos trust depends on the type of injury. The payment schedule the trust established also plays a role.
Each asbestos bankruptcy trust has its own schedule that assigns values to various types of asbestos injuries. Certain types of mesothelioma diseases and levels of severity are eligible for more compensation. The values are based on the compensation payments made by the company before reorganization.
Most trusts do not have enough money to fully pay all present and future claims. As a result, they offer asbestos victims a set percentage of their claims.
The 26 largest trusts offer to pay 1.1 percent to 100 percent of a claim amount. As of 2010, the median percentage they offered to pay was 25 percent of a claim.
The amount of compensation is limited to ensure there is enough money to pay future claimants who will be diagnosed years from now.
The average amount paid by all trusts has decreased by 30 percent since 2008, according to a 2013 LexisNexis Mealey’s Asbestos Bankruptcy Report.
Compensation for Asbestos Exposure
Our team of Patient Advocates can help you or your loved one get the compensation you deserve.Get Free Help Now
Top 10 Asbestos Trust Funds Available In the U.S.
|Company||Estimate of Initial Assets||Year Established|
|United States Gypsum||$3.9 billion||2006|
|Owens Corning Corporation||$3.4 billion||2006|
|Pittsburgh Corning Corporation||$3.4 billion||2011|
|W.R. Grace and Co.||$2.9 billion||2001|
|DII Industries||$2.5 billion||2005|
|Johns-Manville Corporation||$2.5 billion||1988|
|Armstrong World Industries||$2 billion||2006|
|Western Asbestos (Western MacArthur)||$2 billion||2004|
|Babcock & Wilcox||$1.8 billion||2006|
|Owens Corning Fibreboard Subfund||$1.5 billion||2006|
Source: RAND Institute for Civil Justice “Asbestos Bankruptcy Trusts” report.
Find out which companies have a bankruptcy trust and the amount of money available:
Johns Manville and the Largest Asbestos Trusts
The first asbestos bankruptcy trust was created by Johns Manville in 1988. At the time, the $2.5 billion trust was considered underfunded. Since then, it suspended operations twice and reduced the amount paid to less than 10 cents on every dollar of the original benefit schedule.
Since the Johns Manville case, about 100 asbestos companies have sought bankruptcy protection. Trust payouts remain significantly less than what claimants may be eligible to receive in court. Trusts have paid out about $18 billion for more than 3 million claims.
Bankruptcy Code proceedings help ensure payments for future claims.
How Are Asbestos Bankruptcy Trusts Created?
Bankruptcy trusts are created on behalf of companies with asbestos liabilities. But the companies do not operate the trusts. These companies do not review claims or make decisions based on the claimant’s evidence.
Trustees manage asbestos trusts for the benefit of present and future claimants. The claims are processed and decided under preset procedures. Representatives of claimants must follow any changes to these procedures.
Bankruptcy reorganization is a lengthy process. Approval takes several years.
Trusts often publish additional information about:
- A list of confirmed exposure sites
Trust Creation Process
Companies seeking reorganization must submit detailed plans to the bankruptcy court. These plans include the amount they will put aside to pay asbestos claimants and creditors.
The court holds estimation proceedings, which resemble litigation trials. These trials weigh input and objections to the plan by interested parties. The interested parties include lawyers of asbestos victims and asbestos company creditors.
Asbestos Claim Estimates
Each interested group offers its own estimate of how much money should be put aside for asbestos claims. They support their estimates with testimony from experts. These experts may include economists, social scientists or legal experts who are knowledgeable about the value of past asbestos lawsuit settlements.
The bankruptcy judge weighs estimates and expert testimony. The judge then determines how much money should be set aside for asbestos claims.
Bankruptcy court may reject a company’s reorganization plan. It can take many years and multiple estimation proceedings for the court to grant approval. Once approved, the company sets aside money in the amount determined by the court to fund a mesothelioma trust.
How Do You File an Asbestos Bankruptcy Trust Claim?
You must show evidence of an asbestos-related injury to file an asbestos bankruptcy trust claim. Most trusts categorize diseases eligible for various amounts of compensation. Trusts also may require claimants to satisfy certain medical criteria to file claims.
Claimants must file a claim form or some other written statement about their asbestos-related injury. Claimants also may be required to provide other evidence about their exposure, medical history and more.
These criteria help determine how much compensation a claimant should receive.
Evidence required to file a trust claim usually includes:
- Patient’s Diagnosis
- Medical documentation proving the claimant is diagnosed with mesothelioma or another asbestos-related disease. These documents may include pathology reports, biopsies and X-rays.
- Physician Statement
- A statement drafted by a qualified physician, such as a personal doctor or oncologist, confirming the diagnosis.
- Exposure Site
- Evidence confirming the company’s facilities or products exposed the claimant to asbestos. This evidence may include witness affidavits, employment records and invoices.
- Asbestos Involvement
- Medical documentation describing the extent asbestos contributed to the claimant’s disease.
Trusts, Lawsuits and Veterans Benefits Claims
Trust claims are different from lawsuits and veterans benefits claims. All three can provide compensation to people with mesothelioma. Each requires different paperwork, eligibility requirements and protocols.
Claimants benefit from assistance from mesothelioma attorneys and VA-accredited claims agents.
Mesothelioma attorneys can best handle filing trust fund claims and asbestos lawsuits. Veteran benefit claims are best filed with the assistance of a veteran who is a VA-accredited claims agent. These veterans are familiar with the ins and outs of the VA health benefits system.
Asbestos injury lawsuits can lead to larger compensation compared to trust claims. This is because they are filed against manufacturers and other companies still in operation. Patients and loved ones can file lawsuits against multiple defendants.
Bankruptcy Trust Claims
Trust claims are typically handled out of court. The trusts are supposed to contain enough money to pay out current and future asbestos claims. Claimants usually only receive a percentage of what they actually claim, but the funds are often dispersed faster than in lawsuits.
Claims for VA Benefits
Military veterans may be eligible for a variety of VA benefits. These benefits include disability compensation and health care. Veterans must provide a complete history of asbestos exposure while in the military. Compensation is also available to surviving spouses and children of veterans who died of service-related disabilities.
Find a Top Mesothelioma Lawyer
Connect with an experienced mesothelioma attorney who can help you through the trust fund process.Get Help Now
Limitations on Filing for Mesothelioma Compensation
Knowing your legal options is an important factor when deciding on the type of compensation you seek. A qualified mesothelioma lawyer can help you through this process. Look for an attorney with experience filing asbestos trust claims or lawsuits.
Statutes of Limitations
Filing a lawsuit is a complicated and a time-sensitive procedure. Statutes of limitation only allow a certain amount of time to file a lawsuit.
Most states feature a two-year statute of limitation. It starts from the time a person is diagnosed with mesothelioma, but some states vary. If your time to file a lawsuit has expired, you may be able to file it in a different state or file an asbestos trust claim.
National asbestos laws do not exist. The federal government leaves it up to each state to form its own legislation.
State laws vary greatly on when trust claims must be made and how trust compensation affects the determination of lawsuit awards.
A qualified mesothelioma attorney can help you understand the process.
If claimants have already received trust payments, any defendant they sue may deduct the amount of that payment from a court award. These are called setoffs.
Some states, including Illinois, New York, Texas and West Virginia, may permit setoffs for trust payments. Other states do not allow, or sometimes limit, the use of setoffs.
Filing Multiple Claims & Lawsuits
In some cases, claimants can file asbestos trust claims and asbestos lawsuits at the same time. But filing a trust claim can affect the amount of compensation received from a lawsuit. Various state laws require claimants to disclose information about other claims they may have filed in the past.
State courts have different rules about sharing trust claim information with lawsuit defendants.
Some courts require disclosure of any claim forms submitted to trusts during the discovery phase of litigation. This requirement does not necessarily mean the plaintiffs must file their trust claims before trial. It just applies to any claims previously filed.
A few courts may require filing certain trust claims before trial. A few of these courts include those in New York City and Montgomery County, Pennsylvania.
The FACT Act and Asbestos Tort Reform
The Furthering Asbestos Claim Transparency (FACT) Act seeks to make asbestos trust funds report their payouts. The act also would put the personal information of claimants in a public database.
Proponents of the bill say it will prevent claimants from “double dipping,” theoretically leaving more funds available for future claimants.
Those who oppose the bill say there is little to no evidence suggesting claimants have received multiple payouts from the same trust. They believe rare, isolated cases of fraud aren’t sufficient to warrant the FACT Act. The act would make asbestos victims’ private information available to the public, including the last four digits of their Social Security number.
On Feb. 15, 2017, the U.S. House Judiciary Committee approved the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017 — one of several iterations of the legislation.
The bill repeatedly stalled in the legislature in previous years with a promised veto from former President Barack Obama. Supporters are hopeful President Donald Trump will support the legislation as part of a litigation reform package.
Will Asbestos Trusts Have Enough Money to Pay Future Claims?
Trusts are established after rigorous estimation proceedings. These proceedings determine how much money should be set aside for current and future asbestos claims. They are also managed under procedures to make the money last long enough to compensate future claimants.
Given the long latency period of asbestos-related diseases, new claims are expected to emerge for several decades. An estimated $30 billion remain in asbestos trusts.
To ensure enough money is left, claimants typically receive a percentage of what they actually claim. But, reorganized companies responsible for asbestos injuries can’t avoid paying future claimants.
There are no guarantees that you will obtain a specific amount of compensation if you file a trust claim. A mesothelioma attorney can explain the procedures and possible limitations on what you may recover from a trust claim.
Share this article
Last Modified September 26, 2018
4 Cited Article Sources
Hare, J. & Ryan, D. (2016, April 19). COMMENTARY: Uncloaking Bankruptcy Trust Filings In Asbestos Litigation: Refuting the Myths About Transparency.
Retrieved from: https://www.lexislegalnews.com/articles/7668/commentary-uncloaking-bankruptcy-trust-filings-in-asbestos-litigation-refuting-the-myths-about-transparency
Dixon, L., McGovern, G. & Coombe, A. (2010). Asbestos Bankruptcy Trusts: An Overview of Trust Structure and Activity with Detailed Reports on the Largest Trusts.
Retrieved from: http://www.rand.org/content/dam/rand/pubs/technical_reports/2010/RAND_TR872.pdf
Scarcella, M. & Kelso, P. (2013, December 11). Asbestos Bankrupcy Trusts: A 2013 Overview of Trust Assets, Compensation & Governance.
Retrieved from: https://www.lexisnexis.com/legalnewsroom/litigation/b/litigation-blog/archive/2013/12/11/asbestos-bankruptcy-trusts-a-2013-overview-of-trust-assets-compensation-amp-governance.aspx
Fisher, D. (2017, March 20). State AGs Probe Asbestos Bankruptcy Trusts To Recover Medicare Payments.
Retrieved from: https://www.forbes.com/sites/danielfisher/2017/03/20/state-ags-probe-asbestos-bankruptcy-trusts-to-recover-medicare-payments/#7fa30c5d7ce2