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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

LEGENDRE ET AL v. ANCO INDUSTRIES, INC et al

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
3:12-cv-00094 Search Pacer
ACE Group party(s): 
Opposing Party: 
Robert Legendre
Court Type: 
Federal
US District Court: 
Middle District of Louisiana
Date Filed: 
Feb 16 2012

"COUNT ONE
NEGLIGENCE
("Defendants" in this count means all Defendants, except for the Premise
Defendants, Employer Defendants, and Executive Officer Defendants listed on
Exhibits "D" and "E")

16. The illnesses and disabilities of Plaintiff is a direct and proximate result of the negligence of each Defendant and/or its predecessor-in-interest in that said entities produced, sold and/or otherwise put into the stream of commerce asbestos or asbestos containing products, which the Defendants knew, or in the exercise of ordinary care, should have known were deleterious and highly harmful to Plaintiff's health and wellbeing. The Defendants were negligent in one, some or all of the following respects, East Baton Rouge Parish Clerk nf Court - C594869 PET/DAMAGES W/JURY REQUEST Page 6 of 23 among others, same being the proximate cause of Plaintiff's illnesses and disabilities:

(a) failing to timely and adequately warn Plaintiff of the dangerous characteristics and serious health hazards associated with exposure to asbestos and/or asbestos-containing products;
(b) failing to provide Plaintiff with information as to what would be reasonably safe and sufficient wearing apparel and proper protective equipment and appliances, if any, to protect Plaintiff from being harmed and disabled by exposure to asbestos and/or asbestos-containing products;
(c) failing to place timely and adequate warnings on the containers of said asbestos, or asbestos-containing products, to warn of the dangers to health of coming into contact with said asbestos or asbestos-containing products and/or machinery;
(d) failing to take reasonable precautions or exercise reasonable care to publish, adopt and enforce a safety plan and/ or safe method of handling, installing, and/or using or removing asbestos and/or asbestos-containing products;
(e) failing to develop and/or use a substitute material to eliminate asbestos fibers in the asbestos-containing products;
(f) failing to properly design and manufacture asbestos and/or asbestos containing products for safe use under conditions of use that were reasonably anticipated;
(g) failing to properly test asbestos-containing products before they were released for consumer use; and
(h) failing to recall and/or remove from the stream of commerce said asbestos-containing products despite knowledge of the unsafe and dangerous nature of such products.

{"Defendants" in this count means all Defendants, except for the Premise Defendants, Employer Defendants, and Executive Officer Defendants listed on Exhibits "D" and "E")

17. All of the allegations contained in the previous paragraphs are realleged herein.

18. Plaintiff was exposed to asbestos-containing products that were manufactured and distributed by the Defendants and/or their predecessors-in-interest for use as construction materials and / o r machinery in industrial operations. The defective condition of the products rendered such products unreasonably dangerous, and the asbestos-containing products were in this defective condition at the time they left the hands of Defendants. Further, said products were unreasonably dangerous per se, unreasonably dangerous due to Defendants' failure to warn, and unreasonably dangerous due to a design defect.

19. The Defendants are engaged in the business of selling asbestos-containing products, and these products, without substantial change in the condition in which they were sold, were a proximate cause of the injuries of Plaintiff.

20. Defendants knew that these asbestos-containing products would be used without inspection for defects and, by placing them on the market, represented that they would safely do the job for which they were intended, which must necessarily include safe manipulation, installation, operation, maintenance and/or repair of the asbestos-containing products.

21. Plaintiffs were unaware of the hazards and defects in the asbestos containing products of the Defendants which made them unsafe for purposes of manipulation and/or installation.

22. During the periods that Plaintiff was exposed to the Defendants' asbestos containing products, these asbestos-containing products were being used in a manner which was intended and/or reasonably foreseeable by Defendants.

Count THREE
STRICT LIABILITY AND NEGLIGENCE AGAINST THE CONTRACTOR DEFENDANTS

23. The Defendants contracted with the owners of the jobsites identified on Exhibit "A" to perform certain activities at those jobsites prior to and/or during each Plaintiffs exposure period at each such jobsite.

24. At times, the Defendants subcontracted with others to perform a portion of the activities that they contracted with the owners of the jobsites identified on Exhibit "A" to perform,

25. The activities conducted by the Defendants and/or their subcontractors, included, but were not limited to, the application, demolition, displacement disturbance, fabrication, installation, purchase, removal, repair, replacement tearing out, and use of asbestos-containing products at, on and/or for the jobsites identified in Exhibit "A."

26. The foregoing activities resulted in the release of substantial quantities of asbestos dust into the work environment.

27. Plaintiff was exposed to and inhaled substantial quantities of asbestos dust as a direct and proximate result of the activities of the Contractor Defendants and their subcontractors identified in Exhibit "Q."

28. The Contractor Defendants negligently performed and/or permitted their subcontractors to negligently perform the foregoing activities in the following nonexclusive particulars:
(a) By creating a work environment laden with asbestos dust and an unhealthy and unsafe place for Plaintiff to work;
(b) By failing to provide warnings, or adequate warnings, to Plaintiff of the dangers and risks posed by the asbestos in the atmosphere in which Plaintiff worked; of the need for correct, adequate, and/or appropriate safety equipment; of critical medical and safety information regarding asbestos hazards in general and of hazards at the jobsite in particular; and of the hazards created by Defendants' activities;
East Baton Rouge Parish Clerk of Court - C594869 PET/DAMAGES W/JURY REQUEST Page 9 of 23

(c) By failing to test, or adequately test, the work environment for the presence of toxic, hazardous and carcinogenic chemicals, particularly asbestos;
(d) By failing to apprize Plaintiff of the need for periodic medical examinations as a result of Plaintiff's exposure to asbestos created by Defendants' activities;
(e) By failing to ventilate and/ or properly ventilate the areas in which Plaintiff performed activities, or otherwise provide a safe and suitable means of eliminating the amount of asbestos dust in the air;
(f) By failing to clean up and/or properly clean up the asbestos dust created by Plaintiff's activities;
(g) By failing to formulate policies and adopt plans, procedures, and supervision necessary for the adequate protection of persons, such as Plaintiff, who came into contact with asbestos dust as a result of Plaintiff's activities;
(h) By recklessly concealing from Plaintiff and negligently failing to provide critical medical and safety information to Plaintiff regarding the safety and health risks associated with the asbestos and asbestos-containing products;
(i) By failing to adopt and/or failing to enforce safety rules after such rules were actually adopted;
(j) By failing to keep abreast of the scientific and engineering knowledge regarding the dangers of, and protection against, occupational exposure to asbestos;
(k) By failing to properly supervise and/ or monitor their work areas for compliance with safety regulations;
(I) By failing to supervise their operations and the operations of their subcontractors;
(m) By commencing and continuing operations, which were under their control and supervision when they knew or should have known that such operations would cause Plaintiff and co-employees to be exposed to asbestos, without protection, on a daily basis;
(n) By failing to timely, adequately and safely remove asbestos hazards from the workplace;
(o) By failing to comply with applicable State and Federal regulations regulating workplace exposure to asbestos (including, but not limited to, those regulations promulgated by the U. S. Department of Labor pursuant to the Walsh-Healey Public Contracts Act and the Occupational Safety and Health Act);
(p) By applying, demolishing, displacing, disturbing, fabricating, installing, removing, repairing, replacing, and tearing out products that Defendants knew, or in the exercise of reasonable diligence should have known, were unreasonably dangerous, or unreasonably dangerous per se;
(q) By not providing safety instructions or sufficient safety instructions for eliminating or reducing the health risks associated with the their activities; S
(r) By failing to test or adequately test the materials with which they were working to determine the presence of asbestos; j
(s) By failing to purchase products and materials that did not contain asbestos; [
(t) By purchasing, using, applying, demolishing, displacing, disturbing, ] fabricating, installing, removing, repairing, replacing, and tearing out
(u) By failing to properly label products that they purchased, used, applied, ! demolished, displaced, disturbed, fabricated, installed, removed, repaired, \ replaced, and tore out as containing asbestos; and 1
(v) By conducting their activities through such other negligent acts or ; omissions, as may be revealed in discovery and/ or proven at trial. •

29. The negligent acts outlined above were a substantial contributing factor in Plaintiff's exposure to dangerous and hazardous levels of asbestos, and resultant damages.

30. The foregoing negligent acts of the Contractor Defendants were a cause in- fact and proximate cause of the Plaintiffs' injuries and damages.

31. Additionally, the Contractor Defendants are liable for the acts of their subcontractors under the doctrine of respondent superior and Louisiana Civil Code article 2320.

32. Additionally and alternatively, the asbestos-containing products that were purchased, used, applied, demolished, displaced, disturbed, fabricated, installed, removed, repaired, replaced, and torn out by the Contractor Defendants were in the care, custody and control of the Contractor Defendants, were unreasonably dangerous due to the presence of asbestos, and were a proximate cause and cause-in-fact of the Plaintiff's injuries. Therefore, the Contractor Defendants are strictly liable for Plaintiff's damages pursuant to Louisiana Civil Code article 2317.

33. Additionally, when such contractors did not employ Plaintiff, Plaintiff was exposed to the asbestos containing products that were purchased, used, applied, demolished, displaced, disturbed, fabricated, installed, removed, repaired, replaced, and torn out by the Contractor Defendants that were in the care, custody and control of the Contractor Defendants and were unreasonably dangerous due to the presence of asbestos.

COUNT FOUR
NEGLIGENCE OF PLAINTIFF'S EMPLOYERS/EMPLOYERS' EXECUTIVE OFFICERS AND DIRECTORS
(As to Plaintiff's Employers/Employers' Executive Officers and Directors only. "Defendants" in this count means these Defendants only, as identified in Exhibit "D")

34. Plaintiff alleges negligent, grossly negligent, and wanton misconduct on behalf of Plaintiff's employers and employers' executive officers and directors, as identified in Exhibit "D," in failing to provide and/or ensure a safe workplace for their employees, free of hazardous concentrations of asbestos and asbestos containing dust.

35. At various times, Plaintiff was employed by the Defendant employers/officers/directors and during such time were continuously exposed to asbestos and asbestos-containing dust without the provision of appropriate safeguards by Defendants.

36. The Defendants and/or their predecessors-in-interest, subsidiaries, or successors-in-interest undertook and assumed the duties arid responsibilities owed individually and/or delegated to them for providing Plaintiff with a safe place to work and Defendants wantonly and/or negligently and/or willfully failed to provide Plaintiff a safe place to work.

37. Plaintiffs employers delegated to the executive officers and directors, named on Exhibit "D," the responsibility to provide Plaintiff with proper supervision, safety instruction, warnings concerning dangers or hazards in the workplace, and generally to provide Plaintiff a safe workplace and to protect Plaintiff's life, health, safety and welfare while employed by the Defendant employers. Plaintiff alleges that the executive officers and directors had the following responsibilities delegated to him by his employer or actually undertook to perform the following duties:
(a) inspection, approval and supervision of the work of Plaintiff and his coemployees;
(b) to see that proper safety rules were adopted, promulgated, and enforced concerning the use of respiratory protection devices; !
(c) to see that Plaintiff and his co-employees performed the duties pertaining to their work in a proper, safe and workmanlike manner; f
(d) to see that Plaintiff and his co-employees used safe and sound principals and practices in their work;
(e) to make health and hygiene decisions on any and all questions regarding the use of respiratory protection devices; j
(f) to keep abreast of state of the art knowledge as it pertains to the dangers of asbestos inhalation; f
(g) to provide adequate warnings, physical examinations, safety equipment, ventilation, and breathing apparatus, where such was necessary in order to prevent Plaintiff from being harmed by exposure to asbestos in the environment which Plaintiff was required to work;
(h) to make certain that employees, including Plaintiff, were provided a safe working environment free from asbestos dust inhalation;
(i) to comply with applicable State and Federal regulations regulating workplace exposure to asbestos, including but not limited to those regulations promulgated by the U.S. Department of Labor pursuant to the Walsh/Healey Act and the Occupational Safety and Health Act; and
(j) to provide Plaintiff with a safe place to work.

38, Each of the Defendants and/or their predecessors-in-interest, subsidiaries, or successors-in-interest, individually and/or in concert, breached their duty of ordinary care to the Plaintiff by negligently performing duties owed individually and/or delegated to them, directly and proximately causing the asbestos-related injuries, illnesses and disabilities of Plaintiff. The Defendants and/or their predecessors-in-interest, subsidiaries, or successors-in-interest were negligent in one, some and/or all of the following respects, among others, same being the proximate cause of Plaintiff's asbestos-related injuries, illnesses and disabilities;
(a) in failing to provide adequate safety equipment;
(b) in failing to protect Plaintiff from any asbestos exposure;
(c) in failing to provide Plaintiff sufficient personal protective equipment, safety devices and work procedures intended to prevent or substantially eliminate the effects of asbestos exposure;
(d) in failing to supervise or insure compliance with safety guidelines concerning exposure to asbestos or asbestos-containing products;
(e) in failing to use or misusing equipment and instrumentalities within their control which were intended to minimize Plaintiff's exposure to asbestos dust;
(g) in failing to properly perform engineering services, consulting and direction of work involving the installation, removal, maintenance and/ or disturbance of asbestos at Plaintiff's work sites;
(h) in failing to comply with applicable State and Federal regulations regarding workplace exposure to asbestos; and
(i) in failing to properly perform or direct the removal and abatement of asbestos in place at Plaintiff's work sites; and
(j) in negligently failing to disclose, warn or reveal medical and safety information to Plaintiff regarding the hazards of asbestos.

39. The negligence of Plaintiff's employers' executive officers and directors was a substantial factor and contributed in causing Plaintiff's asbestos-related injuries and damages.

COUNT FIVE
INTENTIONAL TORT
(As to Plaintiffs' Employers and Employers' Officers and Directors only. "Defendants" in this count means these Defendants only, as identified in Exhibit "D")

40. Defendant employers, officers and directors, identified in Exhibit "D", are liable for their intentional, willful and wanton failure to disclose to Plaintiff the dangers associated with exposure to asbestos, the risks associated with working in an atmosphere contaminated with asbestos and the likely medical effects of such exposure.

41. Because of Plaintiff's good faith reliance on Defendants' misrepresentations, Plaintiff continued to work in areas contaminated with asbestos and continued to be exposed to asbestos. As a result, Plaintiff contracted asbestos related malignant mesothelioma.

42. Defendant employers committed the following intentional acts which caused Plaintiff to suffer from asbestos-related diseases:
(a) Intentionally failing to provide necessary protection to Plaintiff;
(b) Intentionally failing to provide safety equipment as required by safety statutes;
(c) Intentionally failing to provide clean, respirable air, and proper ventilation;
(d) Intentionally failing to provide proper medical monitoring;
(e) Intentionally failing to monitor the extent and output of asbestos dust into the workplace;
(f) Intentionally failing to warn Plaintiff and other workers of the dangers associated with asbestos and/or asbestos containing products;
(g) Intentionally inducing the Plaintiff and other workers to work in a workplace polluted with asbestos and/or asbestos containing products; and
(h) Intentionally failing to keep asbestos and/ or asbestos containing dust output into the workplace at safe levels.

43. As a result of these acts, Defendants knew that it was substantially certain that the Plaintiff would suffer asbestos related diseases including but not limited to asbestosis, asbestos related pleural disease, lung cancer and/or malignant mesothelioma.

COUNT SIX !
PREMISES LIABILITY j
(A* to Premises Liability Defendants only. "Defendants" in this case means these defendants only, as identified in Exhibit "E") !

44. Plaintiff was exposed to asbestos and asbestos-containing materials while j working at the jobsites identified in Exhibit "A". The premise defendants identified in Exhibit "E," at all times relevant to this complaint, have been either the operator and/or the manager and/or the owner and occupier of its respective facilities and in custody of the facilities during the relevant time period. The facilities were defective in that the asbestos and asbestos-containing materials in the facilities created an unreasonable ris of harm to the Plaintiff and other persons on the premises. Plaintiff was exposed to asbestos and asbestos-containing materials while he was an invitee at the premise defendants' facilities. The defective condition of the facilities was a proximate cause of the Plaintiffs asbestos-related injuries and damages.

45. The Premise Defendants are liable to Plaintiff for its failure to exercise reasonable care to protect Plaintiff from the foreseeable dangers associated with exposure to asbestos. The Premise Defendants, as the premises operator and/or manager and/or owner and occupies and/or custodian, had a non-delegable duty to keep the premises safe for invitees. The Premise Defendants knew or should have known of the unreasonable risk of harm inherent in exposure to asbestos and asbestos containing materials but failed to protect Plaintiff from said risk of harm. The Premise Defendants' failure to protect Plaintiff from known and/or foreseeable dangers constitutes negligence. Said negligence was a proximate cause of Plaintiff's asbestos related injuries and damages.

COUNT SEVEN
INSURANCE ALLEGATIONS

46. Plaintiff avers that Commercial Union Insurance Company issued policies of comprehensive general liability insurance to The McCarty Corporation and its executive officer, Marvin R. McCarty, deceased, that provided coverage for the causes of action asserted by plaintiff against The McCarty Corporation. As such. Commercial Union Insurance Company is liable for the damages alleged in the Original Petition and any supplement against The McCarty Corporation and its executive officer, Marvin R. McCarty, deceased, individually, jointly and in solido,

47. Plaintiff avers that Commercial Union Insurance Company issued policies of comprehensive general liability insurance to Eagle, Inc. and its executive officers, Fred Schuber, Jr. and Fred Schuber, IIII, that provided coverage for the causes of action asserted by plaintiff against Eagle, Inc. As such, Commercial Union Insurance Company is liable for the damages alleged in the Original Petition and any supplement against Eagle, Inc., and its executive officers, Fred Schuber, Jr. and Fred Schuber, HI, individually, jointly and in solido,

48. Plaintiff avers that Zurich Insurance Company issued policies of comprehensive general liability insurance to Anco Insulations, Inc. and its executive officers, Reuel Lacy "Sonny" Anderson, jr. and Harold Johnson, that provided coverage for the causes of action asserted by plaintiff against Anco Insulations, Inc. and its executive officers, Reuel Lacy "Sonny" Anderson, Jr. and Harold Johnson. As such, Zurich Insurance Company is liable for the damages alleged in the Original Petition and any supplement against Anco Insulations, Inc., and its executive officers, Reuel Lacy "Sonny" Anderson, Jr. and Harold Johnson, individually, jointly and in solido.

49. Plaintiff avers Royal Indemnity Company as successor in interest to Queens Insurance Company of America and to Royal Insurance Company of America issued policies of comprehensive general liability insurance to Aber Company, Inc. and its executive officers, that provided coverage for the causes of action asserted by plaintiff against Aber Company, Inc. and its executive officers. As such, Royal Indemnity Company is liable for the damages alleged in the Original Petition and any supplement against Aber Company, Inc. and its executive officers, individually, jointly and in solido.

50. Plaintiff avers Travelers Indemnity Company and/or Travelers Insurance Company issued policies of comprehensive general liability insurance to Aber Company, Inc. and its executive officers, that provided coverage for the causes of action asserted by plaintiff against Aber Company, Inc. and its executive officers. As such, Travelers Insurance Company is liable for the damages alleged in the Original Petition and any supplement against Aber Company, Inc. and its executive officers, individually, jointly and in solido.

51. Plaintiff avers that Westchester Fire Insurance Company issued policies of comprehensive general liability insurance to Anco Insulations, Inc. and its executive officers, Reuel Lacy "Sonny" Anderson, Jr. and Harold Johnson, that provided coverage for the causes of action asserted by plaintiff against Anco Insulations, Inc. and its executive officers, Reuel Lacy "Sonny" Anderson, Jr. and Harold Johnson. As such, Westchester Fire Insurance Company is liable for the damages alleged in the Original Petition and any supplement against Anco Insulations, Inc., and its executive officers, Reuel Lacy "Sonny" Anderson, Jr. and Harold Johnson, individually, jointly and in solido"

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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