When a company is unable to pay its liabilities related to asbestos exposure, it may often end up filing for Chapter 11 bankruptcy protection. In such cases, courts have determined that companies must establish trust funds that have enough money to pay compensation to victims of asbestos-related diseases, such as mesothelioma.
Development of Asbestos Bankruptcy Trusts
After the discovery of a link between asbestos and deadly diseases like mesothelioma in the 1960s, companies that mined asbestos, produced products containing asbestos, or used large amounts of asbestos-filled materials in their operations started to find themselves as defendants in many lawsuits which claimed damages for personal injury or wrongful death. Faced with this mass of litigation, some of these companies found they could not sufficiently pay the settlements and jury awards that came out of these lawsuits.
As a result, a number of companies began to file for bankruptcy, hoping that by doing so they would be able to cancel or limit their liability under the protections provided by section 524(g) of the Chapter 11 bankruptcy code. In many of these cases, companies were required to set up trust funds that would provide compensation to legitimate claimants, both currently and in the future. These trust funds were established as separate organizations, managed by a board of trustees, distinct from the companies that originally caused the asbestos exposure.
It has been estimated that since the first asbestos-related bankruptcies were filed by Johns-Manville Corporation and UNR Industries, approximately 100 asbestos companies have since gone on to file for Chapter 11 reorganization. Not all of these companies have established trusts – some company reorganizations were not approved, and other companies were ultimately forced to file Chapter 7 bankruptcy instead, which required a liquidation of their assets to pay debtors.
How Asbestos Trust Funds Work
Bankruptcy trusts established under section 524(g) are set up to pay mesothelioma claims quickly with as little overhead cost as possible. Some trusts use centralized claims processing partners to help manage the significant amount of claims that come in, which number into the thousands. Some of the largest trusts are managed by such centralized processing, making it easier for victims to receive the compensation they are entitled to.
To file a claim with a trust, generally you have to prove that you or your loved one was exposed at a particular worksite or that exposure resulted from a particular product. Many asbestos trusts also have established exposure and medical criteria that set a baseline for those looking to seek compensation. Specifically for mesothelioma, most trusts use the same (or very similar) criteria to meet the minimum level of eligibility.
Since each trust fund sets its own eligibility criteria, the best way to determine if you are eligible is to talk with a skilled mesothelioma attorney who can break down the requirements for you and explain their implications.
Trust Fund Payment Amounts
Each trust fund sets up its own schedule for making payments, usually based on a percentage of the amount the claimant is entitled to. For example, if a claimant is determined to be entitled to receive $100,000, a trust fund with a 30% payment percentage would end up giving the claimant $30,000. The percentage of a claim that a trust fund pays may change over time.
The actual amount a claimant can receive from a trust fund ultimately depends on many different factors, including their eligibility. An experienced mesothelioma lawyer negotiates with the trust fund to get you the most substantial amount of compensation possible.
Trust Fund Solvency
One big worry with asbestos trust funds is whether they will have enough money to continue making payments to future claimants. A lot of trust funds were established by companies that are no longer in existence, and the money they have in the fund may limit how much they are able to actually pay now and in the future.
Part of the problem is that trusts are often initially funded based on estimates made during bankruptcy proceedings. Companies going through the bankruptcy will often try to pay as little as possible into the trust, while those arguing for mesothelioma victims will typically try to have more money set aside. As has been shown time and again, the estimates made during bankruptcy trials are often lower than is necessary, especially as more and more victims of asbestos exposure start to emerge.
One prime example of an underfunded trust fund is the Johns-Manville Trust, which started out with $2.5 billion to pay claimants. However, since its inception, the Johns-Manville Trust has had to stop payments at least twice, and the payout percentage has been reduced to a mere 10% of the amount claimants are entitled to.
Regardless of their starting amounts, trust funds are generally required to stretch their funds as far as possible to ensure they have at least some money to make future claims. This can place added pressure on trust funds to make smaller payments to current claimants in fear that they won’t have enough money to pay claimants who step forward in the future.
Trust Fund Privacy
Most trust funds provide a confidentiality clause that guarantees the privacy of claimants who receive money from the trust. This is important, because it ensures that victims of mesothelioma and their families who receive trust payments will not be unfairly targeted by those who might want to take advantage of them. In general, the only time a trust fund will provide information about trust claim payments is with the claimant’s express permission, or if necessary, according to a subpoena reviewed by a judge.
Trust Funds and the FACT Act
Currently, there is a legislative attempt to undermine many of the privacy considerations that trust funds have made through confidentiality clauses. The Furthering Asbestos Claim Transparency (FACT) Act, which has been introduced into various bills in the U.S. Congress for several years now, is an attempt to expose the identities of asbestos victims in the name of “transparency” based on a set of dubious claims made by asbestos industry lobbyists.
In short, if passed the FACT Act would delay or deny compensation to asbestos victims and their families. Furthermore, for those who do receive compensation through trust funds, the act would require disclosure of important information including:
- Medical records
- Partial social security numbers
The release of this personal information would leave claimants open to being further victimized through potential identity theft, not to mention the possible harassment of asbestos companies and their lawyers, who would then have access to a large list of individuals who have received compensation because of asbestos exposure.
Trust Claim Legal Process
Trusts are set up with the intent of lessening the burden on victims of asbestos exposure, and therefore, there is generally a lower burden of proof on the claimant than for a plaintiff in a lawsuit. Nevertheless, there are still a number of steps that need to be taken before you can file a claim and, ultimately, receive compensation from an asbestos trust.
Step 1: Understand Trust Criteria
The first step is to understand the criteria that the trust fund has established to make a case. Often, these criteria are published on a public website so that claimants and their lawyers can easily review them and prepare their case.
Common trust fund criteria for establishing a mesothelioma claim include:
- Date(s) of asbestos exposure
- Workplace(s) where the exposure occurred
- Diagnosis of mesothelioma or another asbestos-related disease
- Information about products or materials used that contain asbestos
Other criteria may need to be met, depending on the trust fund. A lawyer who has successfully filed trust claims in the past will be able to answer your questions about the criteria that need to be met for a given fund.
Step 2: Gather Evidence
The next step is to gather evidence to validate your claim. Such evidence might include:
- Employment records
- Military service records
- Union membership records
- Medical records showing your diagnosis
- Witness testimony or affidavits
If you have already prepared a lawsuit, much of the same evidence you gathered in preparation for your action will likely apply for a trust claim as well.
Step 3: Filing a Trust Claim
Once all the evidence is gathered, the next step is to file a claim with the trust fund. Depending on the fund, this may mean either sending paper documentation, or uploading your forms and documents through an online website. In the vast majority of cases, this claim will be filed by your lawyer, who will first check everything over to verify that all of the evidence and forms are in order.
Step 4: Claim Review (Individual and Expedited)
Once your claim is filed, the trust fund administrators will review it according to one of the following methods:
- Expedited Review
- If the claimant meets all of the trust fund’s established criteria, such as medical diagnosis and worksite requirements, the claim will be eligible for expedited review. This means that the claim will be paid out according to the fixed payout schedule established by the trust fund.
- Individual Review
- If the claimant does not meet the requirements for an expedited review, the claim will be reviewed individually. This process is slower, but it also may result in a much higher claim.
- Extraordinary Review
- In certain special circumstances, a claimant can receive more money through an expedited claim. This may involve situations where a claimant meets a particular set of employment criteria, such as having been employed by a single company for several decades.
Your lawyer will be able to instruct on the type of review that best fits your situation, and he/she will work with the trust fund to ensure that the appropriate review takes place.
Step 5: Claim Liquidation and Payment
Once a claim is validated through either expedited or individual review, money to pay the claim will be “liquidated” – that is, a specific amount will be determined and assigned to the claim. The actual amount liquidated will be negotiated with the fund through your lawyer.
After an amount is successfully negotiated, the trust fund will pay the claimant.
Mesothelioma Trust Fund Laws
Personal injury trust funds are created under federal bankruptcy laws, especially section 524(g) of Chapter 11, which provides for the establishment of a trust fund as part of a company reorganization. Companies which file for Chapter 7 bankruptcy (liquidation) cannot set up trust funds for asbestos exposure, as all of the company’s assets are sold off to pay debtors.
The bankruptcy process is long and arduous, and it can often take several years from the time a company files for bankruptcy reorganization to the time that the reorganization plan – including the establishment of an asbestos trust fund – is ultimately confirmed by the bankruptcy court. During this time, there are many hearings and procedural motions to determine the initial amount of the fund and how it will be established.
Applicable State Laws
Since trust funds are established under federal law, state laws do not usually come into play. For example, trusts are not typically subject to the same statutes of limitations that lawsuits are, and the timeframe for filing a trust claim may depend on various factors. For this reason, many people will often seek compensation through litigation before submitting claims to a trust. To determine whether and when you should file a claim with an asbestos trust fund, talk to an experienced attorney who has handled many trust fund claims in the past.
List of Trust Funds
The following table provides a list of companies that have gone through Chapter 11 bankruptcy reorganization and that have established trust funds to pay claims for mesothelioma and other asbestos-related injuries. The name of the associated trust fund, date the fund was created, and approximate initial funding amounts are also provided.
|Company||Asbestos Trust Fund||Created||Initial Funding|
|A-Best Products||A-Best Asbestos Settlement Trust||2004||$18 million|
|A. P. Green Industries||APG Asbestos Trust||2014||$333 million|
|A.B.B. Global Inc.||Lummus 524(g) Asbestos Personal Injury Trust||2006||$38 million|
|A & I Corporation||A & I Corporation Asbestos Bodily Injury Trust||2005||$13 million|
|ACandS, Inc.||ACandS Asbestos Settlement Trust||2008||$528 million|
|API, Inc.||API, Inc. Asbestos Settlement Trust||2006||$94 million|
|Armstrong World Industries||Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust||2006||$2.06 billion|
|ARTRA Group, Inc.||ARTRA 524(g) Asbestos Trust||2007||$74 million|
|Asarco, Inc.||ASARCO LLC Asbestos Personal Injury Settlement Trust||2009||$830 million|
|Asbestos Claims Management Corp./National Gypsum Company||NGC Bodily Injury Trust||1993||$446 million|
|Babcock & Wilcox Company||Babcock & Wilcox Asbestos Trust||2006||$1.85 billion|
|Bondex||Not yet established||???||???|
|Burns & Roe Enterprises, Inc.||Burns & Roe Asbestos Personal Injury Settlement Trust||2009||$172 million|
|C.E. Thurston & Sons||C.E. Thurston & Sons, Inc. Asbestos Trust||2006||$53 million|
|Celotex Corporation/Carey Canada, Inc.||Celotex Asbestos Settlement Trust||1997||$1.25 billion|
|Combustion Engineering||Combustion Engineering 524(g) Asbestos Personal Injury Trust||2006||$1.24 billion|
|Congoleum Corporation||Congoleum Plan Trust||2010||$270 million|
|Daimler Chrysler||Not yet established||???||???|
|DII Industries, LLC (Dresser Industries)||DII Industries, LLC Asbestos Personal Injury Trust||2005||$2.51 billion|
|Durabla||Not yet established||???||???|
|Eagle-Picher Corporation||Eagle-Picher Industries Personal Injury Settlement Trust||1996||$730 million|
|EJ Bartells Co., Inc.||Bartells Asbestos Settlement Trust||2001||$20 million|
|Federal Mogul Corp.||Federal Mogul U.S. Asbestos Personal Injury||2007||$690 million|
|Ferodo||Federal-Mogul Asbestos Personal Injury Trust - Ferodo Subfund||2011||$635 million|
|Flexitallic||Federal-Mogul Asbestos Personal Injury Trust - Flexitallic Subfund||2011||$635 million|
|Flintkote Co./Flintkote Mines Ltd.||Flintkote Company and Flintkote Mines Limited Asbestos Personal Injury Trust||2015||$214 million|
|Garlock||Not yet established||???||???|
|General Motors||MLC Asbestos Personal Injury Trust||2012||$625 million|
|G-I Holdings||G-1 Asbestos Settlement Trust||2009||$770 million|
|Hercules Chemical||Hercules Chemical Company, Inc. Asbestos Settlement Trust||2011|
|H. K. Porter Co., Inc.||H. K. Porter Asbestos Trust||1998||n/a|
|J. T. Thorpe (C.D. Cal.)||J.T. Thorpe Settlement Trust||2006||$154 million|
|J. T. Thorpe (S.D. Tex.)||J.T. Thorpe Company Successor Trust||2004||$232 million|
|Johns-Manville Corp./Philadelphia Asbestos Corp. (Pacor)||Manville Personal Injury Settlement Trust||1988||$2.5 billion|
|Kaiser Aluminum Corp.||Kaiser Asbestos Personal Injury Trust||2006||$1.22 billion|
|Keene Corp.||Keene Creditors Trust||1996||$45 million|
|Kentile||Metex Asbestos Personal Injury Trust||2015|
|Leslie Controls||Leslie Controls, Inc. Asbestos Personal Injury Trust||2011|
|MacArthur Co./Western Asbestos Company||Western Asbestos Settlement Trust||2004||$2 billion|
|North American Refractories Co. (NARCO)||North American Refractories Company Asbestos Personal Injury Settlement Trust||2013||$420 million|
|Owens Corning||Owens Corning Fibreboard Asbestos Personal Injury Trust - Owens Corning Subfund||2006||$3.42 billion|
|Owens Corning/Fibreboard Corp.||Owens Corning Fibreboard Asbestos Personal Injury Trust||2006||$1.56 billion|
|Pittsburgh Corning||Pittsburgh Corning Corporation Asbestos Personal Injury Trust||2013||$3.41 billion|
|Plant Insulation Company||Plant Insulation Company Asbestos Settlement Trust||2012||$242.8 million|
|Plibrico Co.||Plibrico Asbestos Trust||2006||$206 million|
|Porter-Hayden Co.||Porter Hayden Bodily Injury Trust||2006||<$1 million|
|Quigley Co.||Quigley Company, Inc. Asbestos Personal Injury Trust||2013||$569 million|
|Raymark Corp./Raytech Corp.||Raytech Corporation Asbestos Personal Injury Settlement Trust||2000||n/a|
|Shook & Fletcher Insulation Co.||Shook & Fletcher Asbestos Settlement Trust||2002||$109 million|
|T. H. Agriculture & Nutrition||T. H. Agriculture & Nutrition, LLC Asbestos Personal Injury Trust||2009||$901 million|
|Thorpe Insulation Co./Pacific Insulation Co.||Thorpe Insulation Company Asbestos Personal Injury Settlement Trust||2006||$389 million|
|Turner & Newall||Federal-Mogul Asbestos Personal Injury Trust - Turner & Newall Subfund||2007||$635 million|
|United Gilsonite||Not yet established||???||???|
|United States Gypsum Co./ USG Corp.||United States Gypsum Asbestos Personal Injury Settlement Trust||2006||$3.96 billion|
|United States Mineral Products||United States Mineral Products Company Asbestos Personal Injury Settlement Trust||2005||$8 million|
|UNR Industries, Inc./Unarco Industries, Inc.||UNR Asbestos-Disease Claims Trust||1990||n/a|
|W.R. Grace & Co.||WRG Asbestos Personal Injury Trust||2014||$2.98 billion|
|Yarway||Yarway Asbestos Personal Injury Trust||2016||$325 million|
How Do I File Claims with the Asbestos Trusts?
If you or a loved one has been diagnosed with mesothelioma or another asbestos-related disease, you should talk to an attorney who can carefully explain how trust funds work and offer guidance as to which avenues can provide the greatest source of financial assistance to you and your family. To learn more, sign up for a free consultation or call us toll-free at 1-800-336-0086 to schedule your appointment today.Sources
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LexisNexis Legal Newsroom Staff. Asbestos Bankruptcy Trusts: A 2013 Overview of Trust Assets, Compensation & Governance. LexisNexis.com. Dec. 11, 2013.
Plevin MD, Kalish PW, Cusick KR. Where Are They Now, Part Four: A Continuing History Of The Companies That Have Sought Bankruptcy Protection Due To Asbestos Claims. Mealey’s Asbestos Bankruptcy Report. February 2007.
Smith MS. Resolving Asbestos Claims: The Manville Personal Injury Settlement Trust. Law and Contemporary Problems. 1990;53:27-36.