In many cases, asbestos victims have experienced occupational exposure to asbestos from several sources so they can make claims on several trusts. Court-ordered trustees manage the finances and trust distributions and follow strict criteria to determine how much compensation claimants receive.
Asbestos trusts are distributed to eligible asbestos exposure victims once they have filed their claim. Once a claimant has filed their case, they typically receive their compensation within a year of their filing date.
Since the trusts must safeguard their funds to pay all current and future claims, most trusts pay a percentage of a claim (ranging from 1% to 100%). Victims who are most ill (such as mesothelioma patients) receive the highest amount of compensation.
Asbestos trusts were established to provide financial compensation to patients and families who have suffered the most from exposure. Each trust has established disbursement terms based on presumptive medical and exposure criteria. The terms establish if a claim qualifies for compensation. Additionally, trust funds provide mesothelioma victims with a more direct path to receiving compensation, making actual court trials rare.
When determining asbestos trust fund settlements trustees review the claims against at-fault companies. In general, some of the factors that impact compensation levels include the following:
- Cost of medical expenses and care
- Lost wages, including potential earnings
- Debt due to medical condition
- Physical pain and suffering
- Malice and negligence by the at-fault company
- Marital status
- Age of children
- Loss of familial relationships
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The trust fund claim payment percentage heavily impacts how much compensation someone injured by asbestos exposure can receive from a successful claim from an asbestos trust fund – this is what’s known as a payment “schedule.” For example, if the person or their loved one is entitled to $100,000 based on the trust’s payment schedule for their condition, a trust fund with a payment percentage of 25% would pay $25,000.
Asbestos settlement trust funds are built with the intention of providing compensation for successful claimants for as long as possible. The payment percentage can increase or decrease over time, and the trustee of the trust fund makes these adjustments to help them balance their expected claims with their actual claims.
So, what happens if the payment percentage changes?
- If the payment percentage goes up, claimants who previously received payments should receive additional money accounting for the increase in payment percentage.
- If the payment percentage goes down, claimants who already received payments are entitled to keep their full payments.
The average amount asbestos trust funds have paid has gone down by 50%, according to a 2016 article “Uncloaking Bankruptcy Trust Filings In Asbestos Litigation: Refuting The Myths About Transparency” in Mealey’s Asbestos Bankruptcy Report.
Consulting with an experienced mesothelioma trust fund attorney can help you navigate your claim, beginning with claim review.
How Much Money is Left in the Asbestos Trust Fund
It is estimated that $30 billion dollars remain across all active asbestos trust funds. While these trust funds have been used to help mesothelioma and other asbestos victims for years, there is still plenty of money left for people who are suffering or may get sick later in life.
If you or someone you know has mesothelioma, you should pursue compensation. These trust funds exist to provide asbestos victims with the money and justice that is owed to them.
Most asbestos settlement trust fund claims begin with a consultation between the victim and a qualified mesothelioma attorney (See claims process below). After getting the necessary information, mesothelioma attorneys submit documentation to the trust for a claims review. Reviews can happen in one of three ways:
An expedited review allows for quick claims settlement, so asbestos victims and family members can gain fast access to settlement money.
Through the expedited process, claimants must meet the criterion established by the trust, which includes medical evidence and occupational exposure history. The ER is considered less burdensome on claimants because the review is based on easily identifiable medical and exposure criteria. Once the trustees verify the information, claimants are offered a fixed settlement amount.
The disbursement amount depends on the size of the trust. For example, Owens Corning, one of the largest asbestos trusts in operation today, has established the following scheduled values for ER settlement amounts:
|Asbestosis/Pleural Disease/Level III||$19,000|
|Asbestosis/Pleural Disease/Level II||$8,000|
As with other asbestos settlement trust funds, Owens Corning only pays a percentage of the settlement amount to allow for enough funds for all claimants. The most recent percentage for Owens Corning, established in 2018, is 11.1%. Under the 11.1% percentage rate, Owens Corning pays $23,865 for mesothelioma claims.
If the trustees determine the claimant does not meet the standards for compensation through an ER, the claimant can elect for an individual review.
Individual Review (IR)
When a claim does not meet the trust’s presumptive medical and exposure criteria and the claim is denied, claimants can escalate their case to an individual review. Also, claimants who are seeking more significant settlement amounts (larger than the expedited review provides) may opt for an individual review.
IR claims may garner more or less funds for the claimant, depending on the trustees’ examinations and decision. When reviewing the cases, trustees look at factors that include:
- Claimant’s age, level of disability, employment status, disruption in family life and pain and suffering
- Evidence that the claimant’s injuries were caused by asbestos-containing products directly related to the company in question
- Industry of exposure
- Outcomes of other similarly situated claims
The IR process is known to take longer than an ER, so it may not be best suited for claimants who require funds immediately.
For those who have a grave illness (mesothelioma) and need funds immediately, the extraordinary claim can provide financial relief.
Claimants who meet the presumptive medical and exposure criterion for an expedited claim and the exposure is a result of a single employer (or product) are eligible for an extraordinary claim review. Claimants can accept the settlement offer or move to arbitration.
Mesothelioma lawsuits require you to file paperwork suing the asbestos manufacturer for wrongful exposure. After this, the asbestos manufacturer may offer a settlement to prevent a court case. Otherwise, this case will typically go to trial which may require several court appearances and may be subject to one or more appeals of the verdict, which impacts how long it takes to receive compensation. Other things that impact compensation include setoffs and previous court cases, which are determined by the state the claim is filed in.
If you are eligible for claims against multiple asbestos manufacturers, the amount you receive from each may be impacted by your compensation from the other. Some states allow for setoffs.
Asbestos trust funds were created to protect asbestos manufacturers that filed for bankruptcy from lawsuits. If your claim is against an asbestos manufacturer that has declared bankruptcy, you cannot sue them for this claim but you may pursue compensation from their asbestos trust fund if applicable.
Receiving compensation through trust fund claims is typically faster than mesothelioma lawsuit settlements, because of how the process works. Read further on how to file an asbestos trust fund claims below.
Asbestos cancer victims who file claims against bankruptcy trust funds must be able to provide extensive documentation to prove exposure and illness. Most claimants choose to rely on expert asbestos and mesothelioma attorneys to file the complicated claims.
In general, the claims process can be broken down into a four-step system:
- File a claim – During this initial investigative step, claimants and their attorneys research all possible sources of asbestos related to the claimant’s disease. Information collected will include details about the disease level, occupational history (including dates and locations) and military service, among others. Claimants determine if an expedited or individual review best suit their needs.
- Trustees review claims – Trustees review documentation and evidence based on the three review procedures — expedited, individual or extraordinary. They use the provided information to make a factual determination on a claim (see claims review above). All requests are reviewed on a first-in, first-out (FIFO) basis.
- Claims liquidation -After the claim is validated, a monetary amount is assigned. Expedited claims are assigned a predetermined amount, while individual and extraordinary claims can be negotiated. All of the claims are subject to a payment percentage, which changes based on the number of claimants to the single trust.
- Payment -Once a monetary offer is offered, claimants have a set number of days (usually 30) to accept the claim. The financial restitution can be sent in the form of an automatic bank deposit.
Trust Fund Claim Limitations
Claims must be filed within a certain period following diagnosis of the asbestos-related disease to receive compensation from an asbestos trust.
The statute of limitations on mesothelioma claims is impacted by the statute of limitations in the state where the exposure occurred, which is listed or refined in the trust distribution procedures (TDP) for each trust. Claimants typically have two or three years following their diagnosis or the death of their loved one to receive compensation, but should consult the TDP for further information about the statute applicable to their situation. If multiple asbestos-related diseases occur, each is subject to its own statute of limitations.
Even if you are eligible for compensation based on all other criteria for the trust, not filing within their statute of limitations renders you ineligible for compensation.
Currently, about $30 billion is being held in 60 active asbestos trust funds formed after at-fault companies filed Chapter 11 bankruptcy. The trusts allow the companies to continue daily operations while handling asbestos claims. A board of trustees established by the courts manages each trust.
The first trust created, in 1987, was from the Johns-Manville Corporation, the largest provider and producer of asbestos worldwide. When the trust was finalized, it was funded with $2.5 billion. Since then, several other trust funds with billions of dollars have been established.
|U.S. Gypsum Corp. (USG)||Amt. in Trust: $3.9 billion, Created: 2006, Percentage Payment: 25% for expedited and individual reviews|
|Pittsburgh Corning Corp. (PCC)||Amt. in Trust: $3.5 billion, Created: 2016, Percentage Payment: 30.1% for expedited and individual reviews|
|Owens Corning/Fibreboard (OC)||Amt. in Trust: $3.4 billion, Created: 2007, Percentage Payment: Owens Corning (OC) pays 11.1% for expedited and individual reviews. Fibreboard (FB) pays 9% for expedited and individual reviews|
|W.R. Grace and Co.||Amt. in Trust: $2.9 billion, Created: 2001, Percentage Payment: 26% for expedited and individual reviews|
|DII Industries (Includes asbestos liabilities for Halliburton Company, Harbison-Walker Refractories Company, Kellogg Brown & Root, Inc. and Dresser Industries, Inc.)||Amt. in Trust: $2.5 billion, Created: 2005, Percentage Payment: 60% for expedited and individual reviews|
|Babcock and Wilcox Co. (B&W)||Amt. in Trust: $1.8 billion, Created: 2006, Percentage Payment: 11.9% for expedited and individual reviews|
|Combustion Engineering (CE)||Amt. in Trust: $1.43 billion, Created: 2005, Percentage Payment: 25% for expedited and individual reviews|
|Kaiser Aluminum & Chemical Corp.||Amt. in Trust: $1.2 billion, Created: 2006, Percentage Payment: 25% for expedited and individual reviews|
|Eagle-Pitcher Industries||Amt. in Trust: $730 million, Created: 1997, Percentage Payment: 33% for expedited and individual reviews|
|Federal Mogul (includes asbestos liabilities for Turner & Newall (T&N), Gasket Holdings Inc., Flexitallic, Ferodo America Inc. and Vellumoid)||Amt. in Trust: $690 million, Created: 2007, Percentage Payment: Federal Mogul Asbestos Personal Injury Trust T&N Subfund pays 8.5% for expedited and individual reviews. Federal Mogul Asbestos Personal Injury Trust FMP (Federal Mogul Products) Subfund pays 6.9% for expedited and individual reviews|
The FACT Act (short for Furthering Asbestos Claim Transparency Act) is a proposed regulation that impacts the asbestos trust fund payout transparency.
People in favor of this regulation believe that the requirement to share information about trust fund claims and payouts with the public. The primary benefit is to prevent claimants from filing full claims with multiple trust funds, which impacts the amount in the trust available for others.
People against the FACT Act feel that this transparency may lead to a precedent that harms the overall compensation received.
This is a regulation that was proposed in 2017, and has not yet passed. In the meantime the Department of Justice continues to increase scrutiny on asbestos trust funds to ensure that they are managed properly and that fraudulent claims can be identified.
With growing regulation and many important factors contributing to the success of an asbestos trust fund claim, it is important to consult an experienced attorney to discuss your claim. Asbestos exposure attorneys can use their knowledge of past asbestos trust fund settlements and guide you through the process to help you receive the compensation you deserve for your injuries.
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Written and legally reviewed by Samuel Meirowitz
Attorney and On-Site Legal Advocate
Samuel Meirowitz is a member of the “Top 100 Trial Lawyers.” Mr. Meirowitz was named a “Rising Star” in 2013 & 2014 by Super Lawyers and then a Super Lawyer every year since 2016. In 2013, Mr. Meirowitz obtained what is believed to be the first multi-million-dollar asbestos verdict seen in more than two decades in a New York federal court. In that highly contentious matter, Mr. Meirowitz was able to convince the jury to hold a boiler manufacturer responsible for 60 percent of the $3.8 million awarded, despite the defendant’s attempt to escape all blame by pointing fingers at the plaintiff’s employer and the U.S. Navy (in which the plaintiff admirably served from 1966-70 during the Vietnam conflict). This verdict was upheld by the United States Court of Appeals for the Second Circuit.