Court Upends $600 Mil. Trust for Asbestos Cases

     (CN) – Insurance companies can challenge a $600 million trust created to settle thousands of asbestos-related claims against a California insulation company, the 9th Circuit ruled Tuesday.



     Burdened by some 2,000 asbestos-related lawsuits and with more on the horizon, Thorpe Insulation and its subsidiary, Pacific Insulation, filed for Chapter 11 bankruptcy protection in 2007.
     A family-owned company, Thorpe installed and removed asbestos-insulation products in Southern California from the late 1940s to the early 1970s in both industrial and commercial buildings. During the last 30 years, it has faced about 12,000 lawsuits for wrongful death and personal injury; since 1978, its insurers have paid out more than $180 million defending and settling such claims, according to the ruling.
     A Los Angeles federal judge approved a reorganization plan for the companies in 2009 that established the Thorpe Insulation Settlement Trust to handle present and future asbestos-related claims. Thorpe’s settlements with 13 insurers funded the trust with more than $600 million in cash and securities, the ruling states.
     But objections came from insurance companies that had refused to settle with Thorpe – Continental Insurance Co., National Fire Insurance Co. of Hartford, Motor Vehicle Casualty Co., Central National Insurance Co. of Omaha and Century Indemnity Co. Among their various claims, the insurers said that the court approved a settlement built in bad faith by attorneys with conflicts of interest.
     U.S. District Judge Dale Fisher affirmed the plan nonetheless, finding that it pre-empted any state-law contracts among the non-settling insurance companies. At any rate, those companies did not have standing to challenge the plan in bankruptcy or federal court because it was “insurance neutral, Fisher said.
     But the federal appeals court in Pasadena reached a different conclusion. Though the three-judge panel agreed that the plan overrides state-level contracts, it reversed as to standing Tuesday
     “Appellants argue that the plan is not insurance neutral because of possible preclusive effects of the plan, because they are responsible for claims channeled to the trust, because the trust permits direct file suits against appellants, because they are a contingent beneficiary of the trust, and because the plan and trust distribution procedure can be changed without court supervision,” Judge Ronald Gould wrote for the unanimous panel. “We conclude that the plan may economically affect appellants in substantial ways. A plan is not insurance neutral when it may have a substantial economic impact on insurers.”
     “Because the plan had likely effects that would increase economic exposure of the insurer appellants to asbestos claimants, they had a right to be heard fully and fairly before the plan was finalized,” Gould added.
     On remand, the District Court should “return the case to the bankruptcy court to give appellants the opportunity to present their proof and argument.”
     As the plan is already in motion, Gould acknowledged that this decision throws a wrench into the proceedings.
     “There is no entirely tidy way to resolve this case because the plan has proceeded without stay and without full input from insurer parties who will be economically affected by the plan,” he wrote. “But we have concluded that the starting place is for us to reverse the judgment of the District Court, and to remand to the District Court with instructions that it remand to the bankruptcy court to permit appellants to submit their proof on all issues they previously preserved.”
     No one with the Thorpe Insulation Settlement Trust was immediately available for comment.

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