Strict Liability Asbestos Case on Appeal


A California appeals court will soon determine whether to uphold a lower court’s decision that a subcontractor cannot be held strictly liable for installing asbestos-containing material on a project that complied with specifications.

A number of California specialty trade groups and the American Subcontractors Association filed an amici curiae brief in the asbestos case, Joel Hernandezcueva vs. E.F. Brady Company Inc., according to an announcement Sept. 25.

Strict liability refers to absolute liability imposed on a party without proof of fault.

Impact on Construction Industry

ASA, the Association of the Wall and Ceiling Industry and the Roofing Contractors Association of California have urged the California Court of Appeal, Second Appellate District, Division Four to affirm the lower court’s decision, arguing that imposing strict liability on the subcontractor, who did not write or approve the specifications, would have a profound impact on the construction industry.

“Further, strict liability on subcontractors would place liability on a party who does not control the risk,” the groups said.

“It would also broaden liability in construction thereby raising insurance rates to contractors throughout California, which in turn would unnecessarily raise construction costs in a still struggling economic environment.”

Case Details

The subcontractor,  E.F. Brady Company Inc., was involved in a large commercial building project in the 1970s in Irvine, CA.

The company purchased the alleged asbestos-containing products at issue in the case (drywall, drywall compound and fireproofing products) to complete its contract on the Flour Daniels Building, per the architect’s specifications, ASA reported.

© / aerogondo

At trial, the attorneys for the subcontractor focused on what the subcontractor knew about the contents of the products it was installing; the time that passed between the client's work and the claimed exposure during plaintiff's later work relating to the demolition of the drywall; as well as the responsibility of Hernandezcueva's employer for his safety at the time.

Decades later, from 1992 to 1995, Hernandezcueva worked as a janitor at the complex, where his duties included cleaning up after renovation work and cleaning areas that contained the alleged asbestos-containing building products installed by E.F. Brady.

Several years later Hernandezcueva was diagnosed with mesothelioma.

In 2013, 44-year-old Hernandezcueva and his wife, Jovana, filed suit, claiming that Hernandezcueva contracted mesothelioma because of his exposure to asbestos at the Flour Daniels Building.

Trial Court Ruling

In addition to other theories of liability, the plaintiffs asserted strict liability on the part of the subcontractor.

The subcontractor moved for Judgment of Partial Nonsuit, asking the trial court to dismiss the plaintiff’s strict liability claims against it.

The subcontractor noted that the materials were not its own product, it was not a manufacturer of the product, and it was not in the business of selling drywall, fireproofing or other construction products, ASA said.

The trial court agreed, ruling that the subcontractor could not be strictly liable for installing the allegedly defective products at issue.

However, the court allowed claims against the subcontractor to proceed only on the question of whether it was negligent when it installed the alleged asbestos-related products. After a 17-day trial, the jury returned a verdict in favor of the subcontractor.

Decision Appealed

Shortly after the decision, Hernandezcueva died. Plaintiffs have appealed the decision.

“The decision of the trial court is in accord with established case law recognizing a clear distinction between a subcontractor, a manufacturer, and those who place a product into distribution,” the groups wrote in the brief.

“The equities courts have established through developing the doctrine of strict liability do not favor extending liability to one who installs materials that is (a) required by specifications prepared by others, (b) purchased from others, and (c) merely installed as required by Contract.”

The oral arguments in the case are set for Nov. 12.


Tagged categories: Asbestos; Building materials; Commercial Construction; Drywall; Fire-resistive coatings; Health and safety; Maintenance + Renovation; North America; Subcontractors

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