The $100,000 Difference: Virile Share vs. Comparative Fault in Asbestos Claims

Who pays the bill when five different companies poisoned a worker, but four of them are now bankrupt? In Louisiana asbestos litigation, the answer depends entirely on the calendar. Depending on when your exposure occurred, you may fall under the old Virile Share Doctrine or the modern Comparative Fault system. Understanding this distinction is the key to ensuring that a jury’s verdict actually turns into a check in your hand.

The Pre-1980 Rule: What is the Virile Share Doctrine?

Before 1980, Louisiana used the Virile Share Doctrine. Under this rule, every defendant found at fault was responsible for an equal “share” of the total debt. Most importantly for victims, a plaintiff could collect the entire damage award from any one of the defendants. That defendant then had to seek reimbursement from the others. This “joint and several” style liability is incredibly powerful when several of the original asbestos companies have since gone bankrupt.

The Modern Standard: Understanding Comparative Fault

In 1980, Louisiana shifted to Comparative Fault (Civil Code Article 2323). Under this system, the jury assigns a specific percentage of fault to every party. A defendant is only responsible for their specific percentage. If a bankrupt company is assigned 80% of the fault and a solvent company is assigned 20%, the plaintiff can only collect 20% of their total damages. In asbestos litigation, the difference between these two systems can mean hundreds of thousands of dollars in actual recovery.

The Cole Case: Why the Date of Exposure is Everything

As established in the landmark case Cole v. Celotex, the law that applies to your case is the law that was in effect when the “injury” occurred. Because asbestos exposure is cumulative and happens over decades, determining that exact date is a complex legal battle. If your legal team can prove the significant exposure happened before 1980, you may be able to utilize the Virile Share Doctrine to ensure you are paid in full, even if most of the responsible parties are out of business.

As research has revealed more about the dangers of asbestos and the mechanics of how it causes certain types of lung disease and cancer, medical and social opinion of asbestos has changed. Likewise, the law of asbestos-related injuries has changed in the last half century. For example, one of our blog posts recently discussed how workplace asbestos cases are now typically addressed through workers compensation proceedings rather than traditional personal injury tort law. A decision issued by the Louisiana Supreme Court in 1992 illustrates another change in the law related to asbestos injuries.

Background

The background and procedural history of Cole v. Celotex Corp,  is complicated. However, knowing the case is important when trying to understand the significance of asbestos litigation. The plaintiffs in the case suffered asbestos exposure in the course of their work duties and filed suit against twenty individual defendants. The defendants included manufacturers of the asbestos materials the plaintiffs encountered on the job as well as officers of their former employers. Additionally, the plaintiffs added as a defendant Insurance Company of North America (“INA”), the primary liability insurance provider for the officers.

The lawsuit proceeded and moved toward trial. Just before the trial commenced, the plaintiffs and the defendant-manfacturers reached a settlement agreement.

As part of the agreement, the manufacturer-defendants admitted legal fault and paid a monetary sum to each plaintiff. Thus, the trial proceeded against the officers and INA, their insurer. At trial, the jury found the officers responsible for the plaintiffs’ injuries and awarded each plaintiff monetary damages. As the officers’ insurer, INA would be responsible for paying all amounts due as a result of the officers’ legal liability.

Multiple Defendants’ Liability

Because asbestos cases involve both long-term exposure and a period of latency – or development of the disease – it is not uncommon to see changes in the applicable law during the relevant time period of a case. The Cole case is no different. At issue was a change in how Louisiana law treats multiple defendants’ liability for injuries caused.

Prior to 1980, defendants shared financial liability under what is referred to as virile share doctrine. This doctrine divides financial liability equally among all defendants who are found to be at fault. A plaintiff may seek his entire damage payment from any or all defendants.

However, any defendant required to pay more than his equal share could seek reimbursement from those who had not paid. In 1980, Louisiana enacted Act 431, which replaced the virile share doctrine with a comparative fault doctrine. Under comparative fault, each defendant is assigned a percentage of fault, and that percentage corresponds to the percentage of the damages each defendant must pay to the plaintiff. (See LSA-C.C. 2323.)

Each scheme has practical consequences for all parties in a lawsuit. For a defendant, comparative fault obviously limits the amount of money he could be forced to pay. If a plaintiff is owed $100,000 from 5 defendants, under virile shares, one defendant may be forced to pay the entire sum and then seek reimbursement from the other defendants.

Under comparative fault, if each defendant is assigned 20% fault, the plaintiff may only collect $20,000 from each individual defendant. That is regardless of the plaintiff’s ability to collect from the other defendants. (See LSA-C.C. 2324.) This example illustrates a plaintiff’s implications as well. He may or may not be able to collect his entire damage award under comparative fault, even if one defendant has the financial ability to pay the entire award.

In the Cole case, a major issue was determining which one of these fault doctrines applied. The Court determined [link to post # 1] that issue based on when the when the exposures to asbestos occurred, legally speaking. Ultimately, the Supreme Court ruled that the plaintiffs’ injuries occurred before 1980, the year the comparative fault doctrine took effect.

Thus, the virile share doctrine applied. For INA, this had a tremendous impact. The jury in the case had found the officers INA insured to be 95% at fault for the plaintiffs’ injuries. Once the case was altered to apply virile share, INA’s ultimate responsibility was only 9/20ths of the plaintiffs’ award. (Of the twenty defendants, INA insured nine of them; hence, INA is responsible for nine of the twenty virile shares.)

The Cole case demonstrates that, even though the timing of the plaintiffs’ injuries are difficult to pinpoint, the legal consequences of that timing are significant. The legal framework that applies to a case may increase or limit the amount of damages a plaintiff will actually be able to recover. In order to fully protect and preserve their rights, persons affected by asbestos exposure should be sure to retain an attorney that is familiar with the complexities of asbestos cases.

Determining which fault system applies requires specific evidence of asbestos exposure. Regardless of which liability rule applies, you must file your claim within the Louisiana asbestos prescription deadlines.

The legal framework of your case is just as important as the medical evidence. As the Cole case proves, pinpointing the timing of asbestos exposure isn’t just a medical exercise—it’s a financial strategy. If you or a loved one are facing mesothelioma, you need an attorney who can navigate the complexities of 1980s law to maximize your recovery. Contact the Berniard Law Firm today for a free review of your exposure timeline.”