Letter to Senators opposing the Fairness in Asbestos Injury Resolution Act of 2005 (S. 852)

Letter to Senators opposing the Fairness in Asbestos Injury Resolution Act of 2005 (S. 852)

February 3, 2006

Dear Senator:

I am writing on behalf of the 1.4 million members of the American Federation of State, County and Municipal Employees (AFSCME) to express our strong opposition to the Fairness in Asbestos Injury Resolution Act of 2005 (S. 852) which may be taken up by the Senate next week. In particular, I am writing on behalf of the tens of thousands of AFSCME members who have had potentially significant exposure to asbestos on the job while performing renovation and maintenance work in public buildings, brake and clutch repair on public vehicles, and repair and replacement of cement water pipes made with asbestos.

S. 852 would establish a national trust fund, in lieu of the tort system, to compensate victims of disease resulting from occupational exposure to asbestos. While AFSCME has been supportive of the principle of establishing a no-fault compensation system, such an alternative must be designed to ensure fair and timely compensation to the victims and their families. Regrettably, S. 852 does not meet this test.

There are a number of problems with the design of this bill. While it could take at least a few years to set up the compensation program, the bill immediately terminates victims' access to the courts and shuts down the existing bankruptcy trusts which are paying claims to asbestos victims. While the bill attempts to provide a mechanism through which terminally ill claimants may obtain payments before the fund is operational, others with serious illness and disability will be left without an effective remedy until the program is fully operational.

The bill unfairly restricts the legal rights of those workers who have been victimized by exposure to both silica and asbestos by barring them from seeking compensation for their silica-related injury. In most cases, these twice victimized workers will be limited to a $25,000 payment for Level II "mixed disease."

The sunset provisions designed to address the inevitable shortfall in funding will prevent some claimants from returning to court, and S. 852 provides a loophole for certain defendants to abrogate legal settlements reached with plaintiffs but where payments have not yet been started.

S. 852 includes an overly broad definition of an asbestos claim to include virtually any civil action related to the health effects of exposure to asbestos. The definition is not limited to personal injury claims, which is the only type of claim that the compensation program would address. While the bill includes a list of civil actions related to asbestos that would not be included in the definition, it is likely that other causes for civil action will arise that are not now envisioned. We are also concerned that the 5% limit on attorneys' fees will prevent many claimants from obtaining legal representation. The limit is especially problematic for those who have complicated cases or who have Level I claims and are not eligible for a monetary award.

Finally, we have always been concerned about the adequacy and certainty of financing for the trust fund. Our concern over funding adequacy has been heightened with new claims data from the Manville Trust that indicates that the program may be underfunded by 25% or more. We continue to question the certainty of the specified funding which is set by a private agreement that may be subject to dispute between affected businesses.

For these reasons, we urge you to oppose S. 852 and to support continued discussions to design a program that will compensate asbestos victims fairly and in a timely way.


Sincerely,
Charles M. Loveless
Director of Legislation
Print Version