Superior Court of Delaware, New Castle

In the asbestos action Burhenn v. Celotex Asbestos Settlement Trust, the court granted defendant Celotex’s motion to dismiss on the grounds that the complaint was untimely filed. In 1990, the Celotex filed for bankruptcy. Subsequently, a settlement trust was created to pay claims of persons who had pending asbestos claims and any future victims who were exposed to the defendant’s asbestos-containing products. Pursuant to the terms of the Trust’s plan, all claims must be asserted against the Trust and all persons were permanently enjoined from pursuing any asbestos-related claims against Celotex. The plan stated that “For all direct claims filed against the Trust on or after July 1, 2005, in order to be considered timely filed, a claimant must file an Asbestos Personal Injury Claim with the Trust within three years after the first date of diagnosis of the asbestos-related injury of the disease category for which the claim qualifies for payment.”

On January 17, 2013, the plaintiff commenced an action against several asbestos manufacturers which named neither the defendant nor the Trust. However, his representatives alleged that he would have, but for the defendant’s bankruptcy, the plan, and the order confirming the plan. Subsequently, a claim was filed against the Trust on May 16, 2017, which was initially denied as untimely. Pursuant to the plan, the plaintiff elected to proceed with a non-binding arbitration proceeding against the Trust. A decision was issued on November 30, 2022, and the plaintiff received authorization to file a claim in the tort system on January 20, 2023.

In its motion to dismiss, the Celotex asserts that the claim was untimely filed pursuant to the Trust documents and any applicable statute of limitations. It claims that the triggering event for filing the claim was, at the latest, the decedent’s autopsy confirming mesothelioma as the cause of death, which was dated January 14, 2014. The court agreed, stating that the plan controlled claims against the defendant and outlined timeliness of an action as being filed with the Trust within three years of the date of the first diagnosis. The plaintiff argues that the claim was tolled from the time of diagnosis until his representatives received an authorization letter. The court was unpersuaded, stating that the claim was untimely filled and thus did not meet the condition precedent under the plan’s tolling mechanism. Furthermore, the court found that the plaintiff’s argument ignored the plain language of the plan and that, under the plaintiff’s interpretation, there would effectively be no time limit to file a claim with the Trust. For the aforementioned reasons, the court granted the defendant’s motion to dismiss.

Read the full decision here.