In re Asbestos Litigation Cases ( 2021 )

04/09/2021
Hon. Amy Eddy
Case Number: AC 17-0694
Asbestos Claims Court Judge
Cascade County Clerk of District Court
415 2''d Avenue North #200, 200A
Great Falls, MT 59401
(406) 758-5667
IN THE ASBESTOS CLAIMS COURT OF THE STATE OF MONTANA
Cause No. AC 17-0694
IN RE ASBESTOS LITIGATION,
Consolidated Cases. ORDER APPROVING
CONSOLIDATION AND PETITION
FOR ORDER APPROVING
SETTLEMENT AND OF DISMISSAL
WITH PREJUDICE
This matter is before the Court on the McGarvey Law("ML")Libby Mine Claimants'I and
the State of Montana's2 ('State") Joint Motion Approving Consolidation and Petition for Order
Approving Settlement and ofDismissal with Prejudice (hereinafter "Petition/Dismissal Motion").
A hearing was held before this Court on March 30, 2021, on the Petition/Dismissal Motion. On
the basis ofthe Petition/Dismissal Motion,the hearing thereon, and good cause appearing therefor,
the Court, having fully considered the same and being thereby advised in the premises, now enters
the following:
1 The ML Libby Mine Claimants are defined in the Memorandum of Understanding of
Settlement Agreement("ML/State MOU"), dated December 22, 2020, attached to the
Petition/Dismissal Motion as Exhibit A.
2 TheState of Montana includes any and all departments, agencies, divisions, and
employees of the State of Montana.
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING
SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE I
FINDINGS OF FACT
1) Beginning in the late 1960's and increasingly into the 1990's, Zonolite Mining
Company/W.R. Grace (collectively "Grace") employees and former employees and their family
members made claims against Grace for asbestos-related diseases.
2) Many of those claims settled and some cases were tried to verdict.
3) On April 2, 2001, Grace filed a chapter 11 bankruptcy petition.
4) Since the Grace bankruptcy filing, the lawsuits identified on Exhibit B to the
Petition/Dismissal Motion have been filed by the ML Libby Mine Claimants against the State.
5) In all the lawsuits and claims against the State,the ML Libby Mine Claimants allege
injury and damages from alleged asbestos-related disease allegedly caused by the State among
other defendants.
6) In December 2020, the ML Libby Mine Claimants and the State engaged in
mediation in an effort to resolve the ML Libby Mine Claimants' lawsuits and claims against the
State.
7) Representatives of the State of Montana's insurer, National Indemnity Company
("NIC"), attended the mediation.
8) As a result of the mediation, the State of Montana and ML Libby Mine Claimants
entered into the ML/State MOU attached as Exhibit A to the Petition/Dismissal Motion.
9) The ML/State MOU sets forth the terms and conditions of the settlement between
the ML Libby Mine Claimants and the State, including identification of settling parties; lawsuits
and claims being settled; amount of settlement; form of releases; and payment of the settlement
amount into a Qualified Settlement Fund Trust. NIC made no contribution to the ML/State
Tentative Settlement.
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING
SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 2
10) Under the ML/State MOU,upon judicial approval, the ML Libby Mine Claimants'
lawsuits and claims against the State, will be settled for the following consideration:
a. Payment in the amount of $4,900,000.00, which subject to court approval
and the State not being precluded by court order from depositing the $4,900,000.00 into the ML
Libby Mine Claimants Qualified Settlement Fund Trust("ML Libby Mine Claimant QSF"), will
be paid within thirty calendar days of court approval.
b. A contingent payment of additional funds to the ML Libby Mine Claimants
which payment is contingent upon the State recovering cash payments from NIC in the pending
action National Indemnity Company v. State ofMontana("NIC v. State'), Montana First Judicial
District Court, Lewis & Clark County, Cause No. XDDV-2012-140, as follows:
I. Should the State be paid by NIC $1,733,900.00 over and above the
$25,530,936.19 (the $16,100,000.00 previously paid by NIC into the "Libby Mine Claimants'
Qualified Settlement Fund Trust" approved in Orr v. State, Montana First Judicial District Court,
Lewis & Clark County, Cause No. BDV-2001-423 (hereinafter "Orr QSF") and an additional
$9,430,936.19 in NIC v. State), the State shall pay into the ML Libby Mine Claimants QSF an
additional $1,470,000.00.
Should the State be paid by NIC less than $1,733,900.00 over and
above the $25,530,936.19 referenced in paragraph b.I. above, the contingent $1,470,000.00 shall
be reduced by .8478 for each dollar paid to the State by NIC less than $1,733,900.00 over and
above the $25,530,936.19 referenced in paragraph b.I. above. For example, if the State is paid by
NIC $1,560,510.00 over and above the $25,530,936.19 referenced in paragraph b.I. above, the
contingent $1,470,000.00 shall be reduced to $1,323,000.00.
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING
SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 3
Should the State not be paid by NIC any money over and above the
$25,530,936.19 referenced in paragraph b.I. above, there will be no additional payment due the
ML Libby Mine Claimants over the $4,900,000.00 set forth in paragraph a. above.
c. Should the State be paid by NIC at least $50,379,621.61, any amount not
already paid under paragraph a. or b. shall be accelerated and paid within thirty (30) days of the
State receiving such fimds from NIC, court approval of the ML/State Tentative Settlement, and no
order precluding the State from depositing such funds into the ML Libby Mine Claimant QSF.
d. W.R. Grace PI Trust Indirect Claims: The ML Libby Mine Claimants'
lawsuits and claims shall be subject to the "State Round 4 MOU Indirect Claims Exemplar"
attached to the ML/State MOU. Any ML Libby Mine Claimant may opt-out of the terms of the
"State Round 4 MOU Indirect Claims Exemplar." Such a claimant will provide notice to the State
prior to the execution of the Release. If a ML Libby Mine Claimant opts-out of the "State Round
4 MOU Indirect Claims Exemplar," the State reserves its right to file an Indirect Claim with the
W.R. Grace PI Trust.
11) Concurrent with the filing of this Petition/Dismissal Motion, the ML Libby Mine
Claimants' counsel filed a separate petition for an order approving establishment of the ML Libby
Mine Claimant QSF for purposes ofreceipt and distribution ofsettlement proceeds. The ML Libby
Mine Clairnant QSF will be subject to the jurisdiction of this Court.
12) Under the ML/State MOU,the ML Libby Mine Claimant QSF will be funded by
payrnents from the State.
13) The ML/State Tentative Settlement resolves the ML Libby Mine Claimants'
lawsuits and claims against the State.
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING
SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 4
14) Copies of releases from the ML Libby Mine Claimants have been provided to the
Court. The Court has also been advised ofthe amount ofthe ML/State Tentative Settlement to be
received by each ML Libby Mine Claimant.
15) Litigation against the State concerning alleged asbestos-related injury and damages
arising out ofthe State's alleged actions/inactions at the W.R. Grace operations in and near Libby,
Montana, has spanned nearly 21 years. The facts and legal theories involving that litigation are
extraordinarily complex. The ML Libby Mine Claimants' lawsuits and claims against the State
involve numerous disputed factual questions and unresolved legal questions. Given the
complexity of the litigation, numerous disputed factual questions, unresolved legal issues, and
risks of continued litigation, the ML/State Tentative Settlement is reasonable.
CONCLUSIONS OF LAW
1) Mont. Code Ann. § 2-9-303(1) provides in relevant part that: "A settlement from
the self-insurance reserve fund or deductible reserve fund exceeding $10,000 must be approved by
the district court of the first judicial district except when suit has been filed in another judicial
district, in which case the presiding judge shall approve the compromise settlement."
2) Pursuant to Mont. Code Ann. § 2-9-303(1), this Court has jurisdiction to issue an
order approving the consolidation of the cases identified on Exhibit B to the Petition/Dismissal
Motion into this matter, approving the ML/State Tentative Settlement, and dismissing with
prejudice the ML Libby Mine Claimants' lawsuits and clairns against the State.
3) Without consolidation, the ML Libby Mine Claimants and the State would have
been required to file motions and appear for hearings for approval of settlement and orders of
dismissal with prejudice in multiple proceedings.
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING
SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 5
4) Judicial efficiency is best served by one proceeding for judicial approval of the
ML/State Tentative Settlement and of dismissal with prejudice of the ML Libby Mine Claimants'
lawsuits and claims against the State.
5) Given the complexity and significant risks of continuing litigation of the cases and
claims and the disputed factual questions and unresolved legal issues, the settlement is reasonable.
ORDER
IT IS HEREBY ORDERED that the Joint Motion Approving Consolidation and Petition
for Order Approving Settlement and ofDismissal with Prejudice is GRANTED.
IT IS ORDERED that the ML/State Tentative Settlement is APPROVED.
IT IS ORDERED that the ML Libby Mine Claimants' lawsuits and claims against the State
are hereby DISMISSED WITH PREJUDICE. Each party shall bear its own costs and fees.
IT IS ORDERED that the parties shall file a copy of this order with the Clerk of Court for
the Montana Twenty-third Judicial District with reference to each of the cause numbers set forth
on Exhibit B to the Joint Motion Approving Consolidation and Petition for Order Approving
Settlement and ofDismissal with Prejudice.
IT IS FURTHER ORDERED that this order shall have no effect concerning the ML Libby
Mine Claimants' cases and claims against defendants other than the State.
ELECTRONICALLY DATED AND SIGNED BELOW
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING
SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 6