Asbestos Lawyers: Fairness in Asbestos Injury Resolution Act of 2005

Your Asbestos Lawyers provide 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. 405. ANNUAL REPORT OF THE ADMINISTRATOR.

(a) In General- The Administrator shall submit an annual report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the operation of the Asbestos Injury Claims Resolution Fund within 6 months after the close of each fiscal year.

(b) Contents of Report- The annual report submitted under this subsection shall include--

(1) a summary of the claims made during the most recent fiscal year, including--

(A) the number of claims made to the Office and a description of the types of medical diagnoses and asbestos exposure underlying those claims; and

(B) the number of claims denied by the Office and a description of the types of medical diagnoses and asbestos exposures underlying those claims, and a general description of the reasons for their denial;

(2) a summary of the eligibility determinations made by the Office under section 114;

(3) a summary of the awards made from the Fund, including the amount of the awards;

(4) an analysis of the financial condition of the Fund, including an estimation of the Fund's ability to pay claims for the subsequent 5 years in full as and when required, an evaluation of the Fund's ability to retire its existing debt and assume additional debt, and an evaluation of the Fund's ability to satisfy other obligations under the program;

(5) a statement of the percentage of asbestos claimants who filed claims during the prior calendar year and were determined to be eligible to receive compensation under this Act, who have received the compensation to which they are entitled according to section 133 for each level;

(6) the identity of all participants and a summary of the funding allocations of each participant, including the amounts of all payments to the Fund;

(7) a summary of all financial hardship or inequity adjustments applied for during the fiscal year, and a summary of the adjustments that were made during the fiscal year;

(8) a summary of the investments made under section 222(b);

(9) a summary of all referrals made to law enforcement authorities under section 408 and of any legal actions brought or penalties imposed under section 223;

(10) an estimate of the number and types of claims, the amount of awards, and the participant payment obligations for the next fiscal year;

(11) any recommendations from the Advisory Committee on Asbestos Disease Compensation and the Medical Advisory Committee of the Fund to improve the diagnostic, exposure, and medical criteria so as to pay only those claimants whose injuries are caused by exposure to asbestos;

(12) a summary of the results of audits conducted under section 115; and

(13) a summary of prosecutions under section 1348 of title 18, United States Code (as added by this Act).

(c) Claims Analysis- If the Administrator concludes, on the basis of the annual report submitted under this section, that the Fund is compensating claims for injuries that are not caused by exposure to asbestos and compensating such claims may, currently or in the future, undermine the Fund's ability to compensate persons with injuries that are caused by exposure to asbestos, he or she must include in the report an analysis of the reasons for the situation, a description of the range of reasonable alternatives for responding to the situation, and a recommendation as to which alternative best serves the interest of claimants and the public. The report may include a description of changes in the diagnostic, exposure or medical criteria of section 121 that the Administrator believes may be necessary to protect the Fund from compensating claims not caused by exposure to asbestos.

(d) Shortfall Analysis-

(1) IN GENERAL- If the Administrator concludes, on the basis of the information contained in the annual report submitted under this section, that the Fund may not be able to pay claims as they become due at any time within the next 5 years, the Administrator must include in the report an analysis of the reasons for the situation, an estimation of when the Fund will no longer be able to pay claims as they become due, a description of the range of reasonable alternatives for responding to the situation, and a recommendation as to which alternative best serves the interest of claimants and the public. The report may include a description of changes in the diagnostic, exposure or medical criteria of section 121 that the Administrator believes may be necessary to protect the Fund. The range of alternatives may include--

(A) triggering the termination of this Act under subsection (f) at any time after 7 years following the date of enactment of this Act, and

(B) reform of the program set forth in titles I and II of this Act (including changes in the diagnostic, exposure or medical criteria, changes in the enforcement or application of those criteria, changes in the timing of payments, or changes in award values).

(2) CONSIDERATIONS- In formulating recommendations, the Administrator shall take into account the reasons for any shortfall, actual or projected, which may include--

(A) financial factors (such as inadequate return on investments);

(B) the operation of the Fund generally (including the operation of the diagnostic, exposure and medical criteria, potential problems of fraud, the adequacy of the criteria to rule out idiopathic mesothelioma, and inadequate flexibility to extend the timing of payments);

(D) compensation of diseases with alternative causes; and

(E) any other factor that the Administrator considers relevant.

(3) RECOMMENDATION OF TERMINATION- Any recommendation of termination should include a plan for winding up the affairs of the Fund (and the program generally) within a defined period, including paying in full all claims resolved at the time the report is prepared.

(4) RESOLVED CLAIMS- For purposes of this section, a claim shall be deemed resolved when the Administrator has determined the amount of the award due the claimant, and either the claimant has waived judicial review or the time for judicial review has expired.

(e) Recommendations of Administrator and Commission-

(1) IN GENERAL- If the Administrator recommends changes to this Act under subsection (c), the recommendations and accompanying analysis shall be referred to a special commission consisting of the Attorney General, the Secretary of Labor, the Secretary of Health and Human Services, the Secretary of the Treasury, and the Secretary of Commerce. The Commission shall hold public hearings on the Administrator's alternatives and recommendations and then make its own recommendations for reform of the program set forth in titles I and II of this Act. Within 180 days after receiving the Administrator's recommendations, the Commission shall transmit its own recommendations to the Congress in the same manner as set forth in subsection (a).

(2) REFERRAL- If the Administrator recommends changes to, or termination of, this Act under subsection (d), the recommendations and accompanying analysis shall be referred to the Commission. The Commission shall hold public hearings on the Administrator's alternatives and recommendations and then make its own recommendations for reform of the program set forth in titles I and II of this Act. Within 180 days after receiving the Administrator's recommendations, the Commission shall transmit its own recommendations to the Congress in the same manner as set forth in subsection (a).

(f) Sunset of Act-

(1) IN GENERAL- At any time after 7 years following the date on which the Administrator begins processing claims, if the Administrator determines that, if any additional claims are resolved, the Fund will not have sufficient resources when needed to pay 100 percent of all resolved claims while also making its debt repayment obligations and meeting its other obligations under this Act, the provisions of this Act set forth in paragraph (3) shall terminate and be of no further effect 180 days after the Administrator's determination as to all asbestos claims that have not been resolved by the Fund as of the date of the determination, unless Congress passes legislation continuing the Fund.

(2) RESOLVED CLAIMS- In the event of sunset, all resolved claims shall be paid in full by the Fund.

(3) TERMINATED PROVISIONS- Subject to paragraph (4), the provisions of this Act subject to termination under paragraph (1) are titles I (except subtitle A) and II and sections 403 and 404(e)(2).

(4) CONTINUED FUNDING- If provisions of this Act terminate under paragraph (1), participants will still be required to make payments as provided under subtitles A and B of title II. If the full amount of payments required by title II is not necessary for the Fund to pay claims that have been resolved as of the date of termination, pay the Fund's debt, and support the Fund's continued operation as needed to pay such claims and debt, the Administrator may reduce such payments. Any such reductions shall be allocated among participants in approximately the same proportion as the liability under subtitles A and B of title II.

(5) DEFINITIONS- In this subsection--

(A) the term `sunset claims' means claims as to which this Act has terminated; and

(B) the term `sunset claimants' means persons asserting such claims.

(6) SUNSET CLAIMS- If this Act terminates in accordance with paragraph (1), then the applicable statute of limitations for the filing of sunset claims under subsection (g) shall be deemed tolled for any past or pending sunset claimants while they were pursuing claims filed under this Act. For those claimants who decide to pursue a sunset claim in accordance with subsection (g), the applicable statute of limitations shall apply, except that claimants who filed a claim against the Fund under this Act before the date of termination shall have 2 years after the date of termination to file a sunset claim in accordance with subsection (g), whichever is longer.

(g) Nature of Claim After Sunset-

(1) IN GENERAL- On and after the date of termination under subsection (f), any individual injured as a result of exposure to asbestos, who has not previously had a claim resolved by the Fund, may in a civil action obtain relief in damages subject to the terms and conditions under this subsection and paragraph (6) of subsection (f), except--

(A) an individual who received an award for a nonmalignant disease (Levels I through V) from the Fund may assert a claim for a malignant disease under this subsection, unless the malignancy was diagnosed or the claimant had discovered facts that would have led a reasonable person to obtain such a diagnosis before the date on which the nonmalignant claim was settled; and

(B) an individual who received an award for a nonmalignant or malignant disease (except mesothelioma) (Levels I through IX) from the Fund may assert a claim for mesothelioma under this subsection, unless the mesothelioma was diagnosed or the claimant had discovered facts that would have led a reasonable person to obtain such a diagnosis before the date on which the nonmalignant or other malignant claim was settled.

(2) EXCLUSIVE JURISDICTION- The United States district courts shall have exclusive jurisdiction of all actions under paragraph (1), to the exclusion of State courts and any other forum. As of the effective date of a termination of this Act under subsection (f), an action under paragraph (1) shall be the exclusive remedy for any asbestos claim that might otherwise exist under Federal, State or other law, regardless of whether such claim arose before or after the effective date of this Act or of the termination of this Act, except that claims against the Fund that have been resolved before the date of the termination determination under subsection (f) may be paid by the Fund.

(3) VENUE- Actions under paragraph (1) shall be brought only in the United States district court for the judicial district where the claimant resides or the exposure is alleged to have occurred.

(4) APPLICABLE LAW- An action under paragraph (1) shall be governed by Federal common law, except that where national uniformity is not required the court must utilize otherwise applicable State law, including State statutes, to provide the appropriate rule of Federal common law.