By Eric B. Krauss on June 15, 2018

AsbestosIn Accident Fund Ins. Co. v. Casey, No. SC96899, slip op. at 2 (Mo. May 22, 2018), the Missouri Supreme Court affirmed the Missouri Labor and Industrial Relations Commission’s determination that Respondent, the employer’s workers compensation insurer, was liable for Appellant’s claim for enhanced mesothelioma benefits.

Appellant developed mesothelioma as an alleged result of working with vinyl asbestos tile, including cutting, scraping, and sweeping old floor tile. Id.  Appellant was diagnosed with mesothelioma in fall, 2014, and subsequently filed a claim for workers’ compensation benefits in February, 2015. Id. at 3. At the time Appellant filed this claim, his employer was covered under an insurance policy purchased from Respondent. The insurance policy contained an endorsement titled “Missouri Notification of Additional Mesothelioma Benefit Endorsement” which provided that:

Section 287.200.4, subdivision (3), of the Missouri Revised statutes provides additional benefits in the case of occupational diseases due to toxic exposure that are diagnosed to be mesothelioma and result in permanent total disability or death. Your policy provides insurance for these additional benefits.

The Court held that the Respondent insurer was liable to pay the enhanced mesothelioma benefits, rejecting Respondent’s argument that it would not be liable because Appellant’s exposure to asbestos occurred prior to the policy period. Id. at 5-6. The Court reasoned that when the employer accepted the insurance policy and its mesothelioma endorsement, the employer opted in to the additional mesothelioma benefit liability provided by Section 287.200.4. Because the mesothelioma endorsement referred to Section 287.200.4, the Court found that it incorporated all of the Section’s language into the policy, providing coverage for “all [mesothelioma] claims filed on or after January 1, 2014.” Id. at 5, quoting § 287.200.4 RSMo. The Court interpreted this language under the plain-meaning rule, finding that an ordinary purchaser of insurance would understand that a mesothelioma claim filing would trigger liability coverage. Id. at 6.

The Court dismissed Respondent’s argument that its policy terms limited coverage to situations where an employee’s last exposure to asbestos occurred during the policy period. The Court found that Respondent provided coverage by expressly adopting Section 287.200.4 into its endorsement, that any policy provisions to the contrary were of no effect, and that conflicting provisions were changed to conform to the law.  Finally, the Court opined that requiring asbestos exposure to have occurred during the policy period would make the insurance policy illusory and essentially worthless.

Under this decision, the workers compensation insurer on the date of the claim will be liable to pay enhanced benefits to an injured worker if the employee worked for the employer during the time he/she was last exposed to asbestos.