Document 3eex7n31aZ6wN9dqMDk0r5G2E

ARMSTRONG CORK'S WORKMEN'S COMPENSATION FILES 1964 IN WHICH J-M IS A PARTY PRIOR TO Addison, Gus (California) Application (complaint) states exposure to "sawdust and dust" causing injury to lungs. Application indicates copies were served upon employers on February 19, 1964. The list of employers which is attached includes J-M Sales and gives New York address. Also copied is Travelers. There are total of 88 employers. if ' 9t&EOS&.VjM There is a further order joining additional parties^T-I on which the date of the order is not shown. J-M is listed as a cc on this order. ow&mw Notice of hearing dated April 9, 1964, lists all defendants including J-M Sales. Further notice of hearing sent on January 2, 1965 also lists J-M for service. There is no indication as to the outcome of this claim and no final closing papers or remarks. No indication is given as to whether J-M participated in settlement or whether J-M in fact answered or participated in this claim. There is also no indication in the file exactly the nature of the disease from which the plaintiff suffered and as noted above the claim application was extremely vague. i COMMENT -- Because of the date of the application and the vagueness of the application, I do not feel that this claim can be construed as notice of an asbestos-related disease. Campbell, Edward (Connecticut) First item in this file is a "notice of hearing" dated December 16, 1954. J-M is the first named defendant and it is indicated in the notice itself that the petitioner "worked for six years in Connecticut" with J-M. After the caption it states, "in re: Informa conference -- asbestosis". No affadavit of servic is attached, although it is addressed to all of th defendants and an acknowledgement of receipt is requested. The second item is a notice of postponement dated- July 1, 1955 and addressed to all parties. Therjljijare two similar notices dated July 7, and August 1, 19 An elaborate notice of hearing, issuing date September 29, 1955, lists all of the various employers and their insurance companies indicating the dates of employment for each period. This notice also states "re: Informal conference -- asbestosis". Letter dated October 4, 1955 from Standard Accident Insurance Company (prior insurance company for Armstrong Cork) to Armstrong Cork states that the -2- petitioner alleges that he is suffering from asbestosis. Inquiries made for employment records. Letter dated July 6, 1955 from Armstrong Cork to Standard Accident indicates in part that Campbell was a pipe coverer on an intermittent basis. The last document in the file was dated October 11, ' 1955. There was no indication in the file as to the outcome of this claim. There is no indication as to whether J-M entered an appearance in this claim. No indication is given as to whether any conclusion is reached as to the nature of the ailments suffered by Mr. Campbell. COMMENT - Two basis for challenging documents: No proof of service upon J-M; Documents do n indicate the actual condition suffered b^ j Mr. Campbell, and it is possible that hoSfof** -y - S*' " not have any disease related to asbestos^.,.:,#. Curtis, Harvey (Michigan) This is a very confusing file because there appears to be two separate petitions for benefits, the first one in 1960, the second one in 1967. First item in the file is a letter dated July 29, 1960 from petitioner's counsel to Armstrong Cork. It would appear from this letter that the petitioner is actually only suing the last employer, Owens-Corning Fiberglass Company, but that it is giving notice also to Armstrong of this pending litigation. _7 Notice of hearing dated [December 2, 1 960 in which Johns-Manville Insulation Co, is listed as a defendant. Although listed as a defendant it is not indicated if and where it was served. The nature of the applicant's disability is not stated. Application for hearing and adjustment for claim ' dated November 21, 1960 and signed by Owens-Corning Fiberglass Corp. and Aetna Casualty. This document states "this application is being filed by Owens- Corning Fiberglass Corp. to determine there is any apportionment proceeding available to them as against the employer listed herein. Etc." The only employ^J*w% listed in this application is Armstrong Cork Co. It further states "plaintiff claims disability in the nature of lungs, respiratory system, including a cardiac condition. No reference to asbestos is &aa&sm made. asww* Letter dated August 17, 1961 from Travelers to Alexander and Alexander (insurance broker) provides status report indicating at pre-trial conference on June 29, 1961. The letter indicated that the medical report of Dr. Williams A. Davis was produced by the plaintiff. The report states that the plaintiff suffered from arteriosclerotic heart disease, pulmonary emphysema, pneumoconiosis. No reference is made to other defendants participating. -4- Letter dated February 1, 1961 from Armstrong to Standard Accident indicates that Curtis was employed as a pipe covering mechanic and was hired through union halls. Letter from Travelers to Alexander and Alexander dated July 6, 1962 and attached decision. The letter ' indicates that the decision held that Owens-Corning Fiberglass as last employer was responsible for 50 percent of disability, the other 50 percent being due to non-occupational disease. It further indicates that Owens-Corning intended to start apportionment proceedings against Armstrong Cork and other employers, but before proceedings could be instituted the Michigan Supreme Court handed down decision holding apportionment section of Workmen's Comp Act to be unconstitutional. Next item in the file is a petition filed September 18, 1967, for a hearing (this petition was not xeroxed). A notice of hearing stamped mailed March 21, 1968 is addressed numerous defendants including Johns-Manville Insulation. Next item is an order dated March 19, 1968, which orders that the employers listed in the motion be joined as party defendants. Included in the list of employers which are added are Johns-Manville Insulation Company, 823 Fisher Building, Detroit, Michigan. -5- The last item is a letter dated April 2, 1968, with no indication of results. No indication is in the file as to medicals other than diagnosis referred to in letter of August 17, 1961. COMMENT - Although J-M Insulation is listed on the notice of hearing dated December 2, 1960, no indication' is given as to whether this notice was sent out to it at that time. Also, that notice does not indicate the applicant's disability. It is clear that J-M Insulation was not made an actual defendant of this until March of 1968, and therefore it can reasonably be argued that it is doubtful any prior notice was given to it. Even if J-M received the initial petition, the petition is not included in the documents and therefore we cannot tell whether reference was made in the petition as to an asbestos-related disease. Finally, the relationship between J-M Insulation Co. and J-M Corp. is unclear. Gones, Robert (California) First item is a letter dated August 8, 1963, from plaintiff's attorney filing amended application to include additional employers and insurance companies. The amended application has a date of August 8, 1963. There are 27 named employers with dates of employment, -6 including which is Johns-Manville Sales Corp., P. o. Box 3734, Rincon Annex, San Francisco, California. The amended application indicates the applicant was an asbestos/insulation worker and that he contracted pneumoconiosis. The last page is a proof of service which indicates J-M Sales was served at the above- 0 referred address. Also served was Travelers Insurance in Oakland, California. Next item is the original application filed May 20, 1963. No indication is given as to whether J-M was an original party. Letter dated January 14, 1964, from Charles N. McMillan, attorney for the State Compensation Insurance Fund which has cc1s going to all parties including J-M Sales Corp., San Francisco. Attached to this letter is a report by Dr. Corwin Hinshaw in which he concludes that plaintiff has pulmonary fibrosis caused from his contact for many years with asbestos fibers. Next item is minutes of dated April 22, 1964, which lists counsel. Travelers Insurance Company is represented but J-M is not (individual defendants are not listed). Order dated August 12, 1964, which approves compromise and release, indicates Travelers paid $350, but does -7- not state what defendants this payment was paid in behalf of. COMMENT - It would appear clear that Mr. Gones suffered from asbestosis. We also have difficulty with this one in that there is a certified proof of mailing of the amended complaint. The fact that the first apparent notification was in August of 1963 is helpful since we acknowledge having information about the health hazard to these workers by the beginning of 1964. Greischar, Paul J, (California) First item in file is notice of time and place of further hearing dated September 27, 1963. It is V particularly noteworthy that J-M was not listed in this notice. Order dated April 17, 1964, joining J-M as a party. The attached list includes J-M Sales Corp., P. O. Box 591, Pittsburgh, CA. No indication is given as to whether J-M was served at that time. Notice of hearing dated April 17, 1964, refers to attached list as to party served. (Assume attached list is the same as list attached to prior order which includes J-M. This may not notify J-M as to nature of claim.) Notice of hearing sent January 23, -8- as cc J-M Sales, Pittsburgh. Subsequent notice on July 15, 1965. Medicals sent to parties -- asbestosis indicated, medical sent March 1966. Order approving compromise and release dated April 5, 1966. Travelers contributed $170* No indication as to J-M's participation. COMMENT - J-Il was not brought into this action until April 1964, and the file is unclear as to whether J-M was actually served at that time. Hunt, Melvin (California) First item is a notice of hearing dated January 21, 1966. Parties which were served are not listed. Memo dated November 23, 1966, from Travelers to Alexander and Alexander indicates that a claim was received with a date of loss of December 31, 1962. Claim was for injuries due to exposure to fiberglass, asbestos and other injurious dust. On further documents, J-M is listed as a defendant. Opinion of referree is given September 14, 1966, approving compromise. Travelers paid but no indication for whom. COMMENT - The claim was not received until after 1964 and therefore of no concern. Munger, Louis (Michigan) First documents indicate that hearinq was held before a deputy commissioner on May 18, 1954 and that Munger received comp benefits from August 10, 1953. Letter from Alexander and Alexander to Armstrong Cork states that commissioner found plaintiff disabled fronv asbestosis. "On March 1, 1955, the Travelers recent medical information indicated that the claimant may be suffering from pulmonary emphysema, with evidence of asthmatic bronchitis. It appears possible that the employee does not have asbestosis." It was recommended that an appeal to the full board and petition to take additional medical testimony be made. - Further correspondence indicated that the petition was denied and that the award was affirmed. A copy of that petition is in the file but was not included in the material^ovei kv/ . Letter dated September 11, 1956, from Alexander and Alexander to Armstrong indicates that Travelers has written reply to inquiry which states "apportionment proceedings have been commenced against the prior employers of Mr. Munger." Letter dated February 27, 1957, refers to apportionment proceeding and indicates that contribution to Travelers T ,o t* t" o r dated August ? ! , 1^50, from Travelers to Alexander and Alexander has first reference to JohnsManville Co. This letter explains the apportionment and indicates that the exposure of each employer was tabulated, J-M's exposure is 2 percent. Notice of hearing for December 3, 1959, and dated , October 23, 1959, for a petition for apportionment has a long list of parties noticed including Johns-Manville Sales Corp., 22 E. 42nd Street, New York, New York. A letter dated September 8, 1961, from Travelers to Alexander and Alexander indicates that j-m had two percent exposure as found by the apportionment proceedings. It appeared that its total payment was $12.71 at that time, although previous correspondence indicates that further payments for medicals could be expected. COMMENT - It appears from this file that the only document which undisputedly was sent to J-M was the notice of hearing for apportionment. This may have routinely been forwarded to Travelers who since they were involved in this matter would not have consulted further with J-M. The petition for apportionment, which is not in the file may have made no reference whatsoever to the nature of the claim other than indicating that the claimant was a prior employee of J-M. In other words we can argue that there is no indication we had the information referred to in this file except for the notice of hearing and that this would not provide us with notice that this was an asbestos-related disease. Onofrio, Anthony J. (Connecticut) , There are only two documents in this file, a notice of hearing dated June 25, 1962 and a second notice of hearing dated September 17, 1962. No indication is given at all that this is an asbestos-related claim. Although J-M is listed as a defendant no indication of service is given. On the first notice J-M is listed . as "Johns-Manville Co., Hartford". COMMENT - This file can be totally di pnnnn.pr'fe^. There is no indication that this is an asbestos case. Riley, James Whitcomb (California) First item -- Application for Hearing and Petition for Apportionment dated November 18, 1960, Thirtytwo separate employers are listed with dates of employment. Number 30 is Johns-Manville Sales, indicating employment of claimant in third quarter of 1955. It is indicated that the petition has been served on all parties. J-M Sales Corp. is listed as being served at 22 East 40th Street, New York, New York. The opening paragraph of the application states that Riley sustained the "occupational disease of asbestosis with complications" -12- Findings and award dated November 27, 1959, and signed by a referee of the Industrial Accident Commission. Findings of fact indicate that Riley was employed as an insulator for the various employers and that he was exposed to "deleterious dust, the accumulative effects of which resulted in pneumoconiosis and tuberculosis which rendered the applicant totally disabled on May ' 19, 1957." J-M is listed as one of the employers. An award is made against J-M and numerous other defendants. A listing of counsel indicates that Travelers is represented. Application dated April 10, 1961, by Grace Riley for death benefits of James Whitcomb Riley, died on * January 24, 1961.' Attached list of parties served indicates Johns-Manville, Inc. served at three locations? 2960 Leonus, Vernon, CA? Box 1450, Long Beach, CA? Burt Gilbertson, Box 9067, Long Beach 10, CA. Next item is a notice of further hearing on the issue of apportionment, notice dated April 25, 1961 and served upon parties including J-M at the addresses listed above. Notice and request for allowance of lien dated January 26, 1961, which has handwritten comment."settled". Letter from Alexander and Alexander to Armstrong Cork indicating the desposition of the claim and listing amounts paid. No indication as to whether other parties participated. This file is very skimpy, however, the application indicates that the applicant had asbestosis and the award supported this. It will be hard to refute that the application was not served upon J-M. Our best and possibly only approach is that the case would have been tendered to Travelers on a pro forma basis. Swartout, John E, (California) Application for hearing dated December 30, 1955, indicates that his employment was "asbestos insulation" and that his injury was asbestosis. Attached list of employers include Johns-Manville. It is not stated that listed companies including J-M were served. Application for hearing -- death claim, dated June ^ 13, 1956, nature of cause of death not given but ijJJ' indicates he was an insulation worker and that he^fei died on May 30, 1956. Order joining parties defendant dated January 22, 1956, lists J-M as the party being joined. Notice of hearing dated June 26, 1956, lists J-M as a party being served. Next item is a report by Attorney Schwab to Standard Accident Insurance Co., dated August 24, 1956, -14- concerning the hearing of Industrial Accident Commission. It is indicated that Mr. Schwab appeared for four separate insurance companies including Travelers at the hearing and that he was representing both Armstrong Cork and johns-Manville on behalf of the Travelers. Mr. Schwab's comments clearly reflect this is a se/iou asbestosis case, and that the decedent had worked aboard vessels at the Bethlehem Shipyard. It is not indicated as to who else received this rawr.^ ST*5" report. This report although obviously Armstrong ended up with a copy probably through either Stan Accident or Travelers. Further notice to all parties of hearings dated October 25, 1956, and included on list is Johns-Manville Sales Corp., New York, and Johns-Manville, Pittsburgh, California. Another notice to all parties which is dated November 7, 1956, but refers to prior list of parties served. Report of referee -- this is very thorough and damaging. Referee finds death due to asbestosis. He also points out use of asbestos on vessels. Special reference should be made to report concerning testimony of Wayne Kelly which indicates that J-M products were used by Western Asbestos where deceased worked between 1945 and 1949. It is indicated on the findings and award that it was served upon all parties shown on -15- official address record: March 4, 1958. That list is not in file. Application for a reconsideration by defendant Western Asbestos Co. on the grounds of statute of limitations; next document indicates this was denied by a referee. The Commission granted the petition to reconsider. s Decision after reconsideration (this is xeroxed) upholds referee and sets forth same specific findings. There is no indication this was sent to J-M. Petition for reapportionment of occupational disease award by Western Asbestos Company and State Compensation Insurance Fund indicates pursuant to the award ' petitioner's have made certain payments. This petition is seeking contribution from other defendants. Last paragraph indicates the petition has been mailed to listed parties, and including on list is Johns-Manville Sales Corp., in New York. Letter dated February 24, 1959, from attorney for State Compensation Insurance Fund, cc's all parties, which include J-M Sales Corp., New York; J-M, Trenton, New Jersey; J-M, Pittsburgh, California. This letter enclosed petition for reapportionment. Petition filed April 5, 1960, by Pacific Employers Insurance Company for dismissal of apportionment claim for lack of prosecution, cc to J-M Sales Corp., New York and J-M, Pittsburgh, P -16- There is no indication as to the final outcome of the apportionment proceedings. COMMENT - This is by far the most damaging of the files. There is no question that this is an asbestosrelated injury. An attack on notice is not particularly strong due to the number of times J-M is listed as a party receiving copies of documents. , In the Application J-M is listed as an employer but no indication is given as to initial service. The first stated notice to J-M is in the notice of ' hearing dated June 26, 1956. It is arguable but not particularly convincing that this notice could have been sent without the prior Application and Order joining J-M being served. There is no indication of J-M being sent Schwab's report. There are several notices to J-n of hearings which are not informative. The report of the referee indicates it was sent to all parties on official address record of March 4, 1958. That list is not in the file and it could be argued that since we had counsel' * of record one would expect the report to bS * * : sent to him. .. ./ . -17- The documents concerning application for reconciliation to not mention j-M as receiving a copy. The petition for reapportionment is the most damaging document since it infers that the deceased died of an asbestos-related disease and indicates mailing to J-M. I believe our best approach in this case is to maintain that such claims would have been routinely turned over to Travelers. Wines, Bernard (Michigan) First document is a motion for joinder dated March 15, 1965, attached is a list of employers.joined as defendant and includes J-M .Sales, New York, Mew York. There is no application or complaint affixed to the joinder. No service on any parties indicated with this document. Letter dated March 22, 1965, with cc's to each employer listed "in order". Letter dated June 21, 1965, concerning depositions in which J-M Sales, New York, is cc*d. No indication is given in this rather incomplete file as to the outcome. Other than stating that the petitioner ' was an asbestos worker there is no indication as to the nature of the disease. -18- COMMENT - Since the first document in this file is dated March 15, 1965, it does not present us with a notice problem.