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Tuesday 12 November 2013

Mesothelioma and Asbestos Trust Claims

By on 04:29

Mesothelioma and Asbestos Trust Claims

Mesothelioma patients and others who have been injured by asbestos may be eligible to receive compensation by suing those responsible for their injuries. But what happens if a negligent company has filed for bankruptcy?
Companies that successfully file for bankruptcy reorganization are protected from lawsuits. But fortunately, the U.S. Bankruptcy Code allows for the creation of asbestos bankruptcy trusts. Asbestos defendants who have been approved for bankruptcy reorganization under section 524(g) of the code are required to fund these trusts with enough money to pay current and future asbestos claims.
asbestos lawsuits case processclick to view the process

How to File an Asbestos Bankruptcy Trust Claim

As with lawsuits, filing an asbestos bankruptcy trust claim requires showing evidence of an asbestos-related injury. Most trusts identify categories and levels of diseases that are eligible for various amounts of compensation. Trusts also may require claimants to satisfy certain medical criteria to file claims.
In addition to filing a claim form or some other written statement concerning an asbestos-related injury, claimants also may be required to provide other evidence.

Evidence required to file a trust claim usually includes:

  1. Medical documentation (e.g., pathology reports) showing that the claimant has been diagnosed with an asbestos-related disease.
  2. Medical documentation describing to what extent asbestos contributed to the claimant’s disease.
  3. A statement from a qualified physician regarding the diagnosis.
  4. Evidence that the claimant was exposed to asbestos at the company’s facilities or from the company’s product(s) (e.g., witness affidavits, employment records, invoices).

How Trust Claims Are Decided

Bankruptcy trusts are set up on behalf of companies with asbestos liabilities, but the companies do not operate the trusts. In fact, these companies do not review claims or make any determinations based on the evidence submitted by claimants. The decision to pay a claim is made by the trust, which is a separate organization from the company.
Trustees manage asbestos trusts for the benefit of present and future claimants. The claims are processed and decided under preset trust distribution procedures. Representatives of current and future claimants must consent to any significant changes to these procedures.
Trusts often publish additional information about their rules, guidelines and qualifications. Among the information they can publish is a list of confirmed exposure sites.

Filing a Trust Claim and a Lawsuit?

Claimants sometimes file both asbestos trust claims and asbestos lawsuits. It is important to remember that filing a trust claim can affect the amount of compensation received from a lawsuit. State laws vary greatly on when trust claims must be made and how trust compensation affects the determination of lawsuit awards. A qualified mesothelioma attorney can help claimants understand the process.
For instance, states treat information sharing, setoffs, indirect trust claims and limitations on trust payments differently:
  • Information Sharing: State courts have different rules about sharing trust claim information with lawsuit defendants. Some courts require plaintiffs to disclose any claim forms they have submitted to trusts during the discovery phase of litigation. This requirement does not necessarily mean that the plaintiffs must file their trust claims before trial. It just applies to any claims that have already been filed. A few courts, such as New York City and Montgomery County, Penn., courts may require filing certain trust claims before trial.
  • Setoffs: Some states - Illinois, New York, Texas and West Virginia among them - may permit "setoffs" for trust payments. In other words, if a claimant has already received a trust payment, any defendant he or she sues may be able to deduct the amount of that payment from a court award. Other states do not allow or sometimes limit the use of setoffs. For example, some courts may apply setoffs differently depending on whether the compensation is for economic damages (e.g., medical expenses) or non-economic damages (e.g., pain and suffering).
However, these laws shouldn't dissuade asbestos victims from filing a trust claim. A single asbestos injury may be caused my several companies' negligence. Some companies can be sued in court, while others who have filed for bankruptcy protection can only be held responsible through the trust system. These laws are intended to establish procedures for filing claims against all negligent parties.
It is best to consult a mesothelioma attorney about whether you can file an asbestos trust claim, an asbestos lawsuit or both. They are knowledgeable about the litigation and trust claim processes. They can also let you know how filing one type of claim may affect the amount of compensation you may be eligible to receive through the other type of claim.
It is also important to remember that statutes of limitation only allow a certain amount of time to file a lawsuit. If your time to file a lawsuit has expired, you may be able to file an asbestos trust claim. Again, it is best to speak with a mesothelioma lawyer to determine the options for your individual case.

How Much Can Someone Receive from an Asbestos Trust?

The amount someone can receive from a trust depends on the type of injury and the payment schedule established by the trust. Each asbestos bankruptcy trust develops its own schedule that assigns values to various types of asbestos injuries. Certain types of diseases and levels of severity are eligible for more compensation. The values are based on the compensation payments made by the company before reorganization.
Since most trusts do not have enough money to fully pay all present and future claims, they offer asbestos victims a set percentage of their claims. The 26 largest trusts offer to pay anywhere from 1.1 percent to 100 percent of a claim amount. As of 2010, the median percentage they offered to pay was 25 percent of a claim. The amount of compensation is limited to ensure that there is enough money to pay future claimants who will be diagnosed years from now.

Will Asbestos Trusts Have Enough Money to Pay Future Claims?

Given the long latency period of asbestos-related diseases, new claims are expected to emerge for several more decades. As of 2011, asbestos trust funds have combined assets of $36.8 billion. Not surprisingly, there are concerns that asbestos trust fund assets will not be enough to compensate all future claimants.
Trusts are established after rigorous estimation proceedings to determine how much money should be set aside for current and future asbestos claims. They are also managed under procedures to make the money last long enough to compensate future claimants. This means that claimants typically receive a percentage of what they actually claim. But it also means that reorganized companies that are responsible for asbestos injuries can't avoid paying future claimants.
If you have been diagnosed with an asbestos-related illness, speak with a mesothelioma attorney today about your options for compensation. Although there are no guarantees that you will obtain a specific amount of compensation, a mesothelioma attorney can explain the procedures and possible limitations on what you can recover under a trust claim.

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