Maryland Court Mulls Legal Remedy for Plaintiff Pursuing Personal Injury Action for Asbestos Exposure

Some personal injuries affecting a certain group of people are covered by state or federal legislation, such as those injured in the course of their employment.  If these injuries overlap with common law negligence, a Maryland personal injury attorney can assist you in pursuing the appropriate action in court.  In an August 28, 2019 case, the Court of Special Appeals of Maryland considered whether a personal injury action was properly brought under the Federal Employer’s Liability Act (FELA).

The plaintiff in the case was a former railroad employee who filed a lawsuit against his employer, a transportation company, along with several other defendants, seeking damages under FELA.  The plaintiff alleged that he was exposed to asbestos during his employment with the transportation company, and that the asbestos exposure caused him to develop malignant mesothelioma.  The defendants moved to dismiss, arguing that the plaintiff’s claim was barred because the Longshore and Harbor Workers’ Compensation Act (LHWCA) provided his exclusive remedy for employment-related claims.  After the lower court granted the motion and dismissed the claims, the plaintiff filed an appeal.

FELA provides a tort remedy for railroad employees who are injured in the course of their employment caused by the negligence of the employer.  The law was enacted in 1906, at a time when few states had workers’ compensation laws, and although FELA has characteristics of both workers’ compensation law and common law tort of negligence, it is neither.

LHWCA was enacted in 1927 to provide federal workers’ compensation benefits to maritime workers who sustained injuries upon navigable waters.  Before 1972, FELA provided a remedy for railroad employees who were injured on land while in the course of their employment.  After LHWCA was amended in 1972, coverage under LHWCA was extended to all employees engaged in some portion of the activity of moving cargo from ship to land based customers, to potentially include certain railroad employees.  Under LHWCA, the liability of an employer is exclusive.  As such, a railroad employee who is covered by LHWCA is barred from pursuing an action against his or her employer under FELA.

The issue on appeal was whether the plaintiff’s claim was covered by the 1972 Amendments to LHWCA, in which case LHWCA would preempt FELA and provide his exclusive remedy.  The plaintiff argued that his injury occurred when he was exposed to asbestos between 1960 and 1969, before the 1972 Amendments became effective, and that his claim was covered under FELA.

On appeal, the court concluded that the plaintiff’s injury came into existence in 2016, when he was diagnosed with mesothelioma, not when the asbestos exposure occurred.  Accordingly, the 1972 Amendments were in effect.  The court went on to find that the plaintiff was engaged in maritime employment for the purposes of coverage under LHWCA, and that therefore, his sole remedy was under LHWCA.

If you were injured by a reckless driver, careless business owner, or any other negligent person, you may have legal recourse against the responsible party.  The Maryland personal injury attorneys at Foran & Foran represent plaintiffs in personal injury cases, wrongful death actions, medical malpractice lawsuits, and other cases arising out of negligence.  Request a free consultation to discuss your legal issue with an experienced lawyer by contacting Foran & Foran by phone at (301) 441-2022 or through our website.