Asbestos Lawyer: Fairness in Asbestos Injury Resolution Act of 2005

Your Asbestos Lawyer provides you with House Resolution 1390: Fairness in Asbestos Injury Resolution Act of 2005. If you have been injured by Asbestos, this document may help you understand your Asbestos lawsuit. To find out if you have a claim, use our FREE Asbestos Case Evaluator.

SEC. 403. EFFECT ON OTHER LAWS AND EXISTING CLAIMS.

(a) Effect on Federal and State Law- The provisions of this Act shall supersede any and all Federal and State laws insofar as they may relate to any asbestos claim, including any claim described in subsection (d)(2).

(b) Superseding Provisions-

(1) IN GENERAL- Any agreement, understanding, or undertaking by any person or affiliated group with respect to the treatment of any asbestos claim that requires future performance by any party, insurer of such party, settlement administrator, or escrow agent shall be superseded in its entirety by this Act.

(2) NO FORCE OR EFFECT- Any such agreement, understanding, or undertaking by any such person or affiliated group shall be of no force or effect, and no person shall have any rights or claims with respect to any of the foregoing.

(c) Exclusive Remedy- The remedies provided under this Act shall be the exclusive remedy for any asbestos claim, including any claim described in subsection (d)(2), under any Federal or State law.

(d) Bar on Asbestos Claims-

(1) IN GENERAL- No asbestos claim, including any claim described in subsection (d)(2), may be pursued and no pending asbestos claim may be maintained in any Federal or State court, except for enforcement of claims for which an order or judgment has been duly entered by a court that is no longer subject to any appeal or judicial review before the date of enactment of this Act.

(2) CERTAIN SPECIFIED CLAIMS-

(A) IN GENERAL- Subject to section 404 (d) and (e)(3) of this Act, no claim may be brought or pursued in any Federal or State court or insurance receivership proceeding--

(i) relating to any default, confessed or stipulated judgment on an asbestos claim if the judgment debtor expressly agreed, in writing or otherwise, not to contest the entry of judgment against it and the plaintiff expressly agreed, in writing or otherwise, to seek satisfaction of the judgment only against insurers or in bankruptcy;

(ii) relating to the defense, investigation, handling, litigation, settlement or payment of any asbestos claim by any participant, including claims for bad faith or unfair or deceptive claims handling or breach of any duties of good faith; or

(iii) arising out of or relating to the asbestos-related injury of any individual and--

(I) asserting any conspiracy, concert of action, aiding or abetting, act, conduct, statement, misstatement, undertaking, publication, omission, or failure to detect, speak, disclose, publish or warn relating to the presence or health effects of asbestos or the use, sale, distribution, manufacture, production, development, inspection, advertising, marketing or installation of asbestos; or

(II) asserting any conspiracy, act, conduct, statement, omission or failure to detect, disclose or warn relating to the presence or health effects of asbestos or the use, sale, distribution, manufacture, production, development, inspection, advertising, marketing or installation of asbestos, asserted as or in a direct action against an insurer or reinsurer based upon any theory, statutory, contract, tort or otherwise; or

(iv) by any third party, and premised on any theory, allegation or cause of action, for reimbursement of health care costs allegedly associated with the use of or exposure to asbestos, whether such claim is asserted directly, indirectly or derivatively.

(B) EXCEPTIONS- Subparagraph (A) (ii) and (iii) shall not apply to claims against participants by persons--

(i) with whom the participant is in privity of contract;

(ii) who have received an assignment of insurance rights not otherwise voided by this Act; or

(iii) who are beneficiaries covered by the express terms of a contract with that participant.

(3) PREEMPTION- Any action asserting an asbestos claim, including a claim described in subsection (d)(2), in any Federal or State court, except actions for which an order or judgment has been duly entered by a court that is no longer subject to any appeal or judicial review before the date of enactment of this Act, is preempted by this Act.

(4) DISMISSAL- No judgment other than a judgment of dismissal may be entered in any such action, including an action pending on appeal, or on petition or motion for discretionary review, on or after the date of enactment of this Act. A court may dismiss any such action on its motion. If the court denies the motion to dismiss, it shall stay further proceedings until final disposition of any appeal taken under this Act.

(5) REMOVAL-

(A) IN GENERAL- If an action in any State court under paragraph (3) is not dismissed, or if an order entered after the date of enactment of this Act purporting to enter judgment or deny review is not rescinded and replaced with an order of dismissal within 30 days after the filing of a motion by any party to the action advising the court of the provisions of this Act, any party may remove the case to the district court of the United States for the district in which such action is pending.

(B) TIME LIMITS- For actions originally filed after the date of enactment of this Act, the notice of removal shall be filed within the time limits specified in section 1441(b) of title 28, United States Code.

(C) PROCEDURES- The procedures for removal and proceedings after removal shall be in accordance with sections 1446 through 1450 of title 28, United States Code, except as may be necessary to accommodate removal of any actions pending (including on appeal) on the date of enactment of this Act.

(D) JURISDICTION- The jurisdiction of the district court shall be limited to--

(i) determining whether removal was proper; and

(ii) determining whether the claim presented is an asbestos claim as defined by this Act.

(6) CREDITS- If, notwithstanding the express intent of Congress stated in this section, any court finally determines for any reason that an asbestos claim including a claim described under paragraph (2) for which, before the date of enactment of this Act, there had been no order or judgment duly entered by a court no longer subject to any appeal or review, is not subject to the exclusive remedy or preemption provisions of this section, then any participant required to satisfy a final judgment executed with respect to any such claim may elect to receive a credit against any assessment owed to the Fund equal to the amount of the payment made with respect to such executed judgment. The Administrator shall require participants seeking credit under this section to demonstrate that the participant timely pursued all available remedies, including remedies available under this section to obtain dismissal of the claim, and that the participant notified the Administrator at least 20 days before the expiration of any period within which to appeal the denial of a motion to dismiss based on this section. The Administrator may require such participant to furnish such further information as is necessary and appropriate to establish eligibility for and the amount of the credits. The Administrator may intervene in any action in which a credit may be due under this section.