Asbestos Litigation: FAIR Act of 2005

Your Asbestos Lawyers provides you with House Resolution 1360: FAIR Act of 2005. If you have been injured by Asbestos, this document may help you understand Asbestos litigation. To find out if you have a claim, use our FREE Asbestos Litigation Evaluator.

SEC. 107. AUTHORITY OF THE ADMINISTRATOR.

SEC. 113. FILING OF CLAIMS.

(a) Who May Submit-

(1) IN GENERAL- Any individual who has suffered from a disease or condition that is believed to meet the requirements established under subtitle C (or the personal representative of the individual, if the individual is deceased) may file a claim with the Office for an award with respect to such injury.

(2) DEFINITION- In this Act, the term `personal representative' shall have the same meaning as that term is defined in section 104.4 of title 28 of the Code of Federal Regulations, as in effect December 31, 2003.

(3) LIMITATION- A claim may not be filed by any person seeking contribution or indemnity.

(b) Statute of Limitations-

(1) IN GENERAL- Except as provided in paragraphs (2) and (3), if an individual fails to file a claim with the Office under this section within 4 years after the date on which the individual first--

(A) received a medical diagnosis of an eligible disease or condition as provided for under this subtitle and subtitle C; or

(B) discovered facts that would have led a reasonable person to obtain a medical diagnosis with respect to an eligible disease or condition,

any claim relating to that injury, and any other asbestos claim related to that injury, shall be extinguished, and any recovery thereon shall be prohibited.

(2) EFFECT ON PENDING CLAIMS- If an asbestos claimant has any timely filed asbestos claim that is pending in a Federal or State court or with a trust established under title 11, United States Code, on the date of enactment of this Act, such claimant shall file a claim under this section within 4 years after such date of enactment or be barred from receiving any award under this title. For purposes of this paragraph, a claim shall not be treated as pending with a trust established under title 11, United States Code, solely because a claimant whose claim was previously compensated by the trust has or alleges--

(A) a non-contingent right to the payment of future installments of a fixed award; or

(B) a contingent right to recover some additional amount from the trust on the occurrence of a future event, such as the reevaluation of the trust's funding adequacy or projected claims experience.

(3) EFFECT OF MULTIPLE INJURIES-

(A) IN GENERAL- An asbestos claimant who receives an award under this title for an eligible disease or condition, and who subsequently develops another such injury, shall be eligible for additional awards under this title (subject to appropriate setoffs for such prior recovery of any award under this title and from any other collateral source) and the statute of limitations under paragraph (1) shall not begin to run with respect to such subsequent injury until such claimant obtains a medical diagnosis of such other injury or discovers facts that would have led a reasonable person to obtain such a diagnosis.

(B) SETOFFS- Except as provided in subparagraph (C), any amounts paid or to be paid for a prior award under this Act shall be deducted as a setoff against amounts payable for the second injury claim.

(C) EXCEPTION- Any amounts paid or to be paid for a prior claim for a non-malignant disease (Levels I through V) filed against the Fund shall not be deducted as a setoff against amounts payable for the second injury claim for a malignant disease (Levels VI through X), unless the malignancy was diagnosed, or the asbestos claimant had discovered facts that would have led a reasonable person to obtain such a diagnosis, before the date on which the non-malignancy claim was compensated.

(c) Required Information- A claim filed under subsection (a) shall be in such form, and contain such information in such detail, as the Administrator shall by regulation prescribe. At a minimum, a claim shall include--

(1) the name, social security number, gender, date of birth, and, if applicable, date of death of the claimant;

(2) information relating to the identity of dependents and beneficiaries of the claimant;

(3) a complete employment history of the claimant, accompanied by social security records or a signed release permitting access to such records;

(4) a description of the asbestos exposure of the claimant, including, to the extent known, information on the site, or location of exposure, and duration and intensity of exposure;

(5) a description of the tobacco product use history of the claimant, including frequency and duration;

(6) an identification and description of the asbestos-related diseases or conditions of the claimant, accompanied by a written report by the claimant's physician with medical diagnoses and x-ray films, and other test results necessary to establish eligibility for an award under this Act;

(7) a description of any prior or pending civil action or other claim brought by the claimant for asbestos-related injury or any other pulmonary, parenchymal or pleural injury, including an identification of any recovery of compensation or damages through settlement, judgment, or otherwise; and

(8) for any claimant who asserts that he or she is a nonsmoker or an ex-smoker, as defined in section 131, for purposes of an award under Malignant Level VI, Malignant Level VII, Malignant Level VIII, or Malignant Level IX, evidence to support the assertion of nonsmoking or ex-smoking, including relevant medical records.

(d) Date of Filing- A claim shall be considered to be filed on the date that the claimant mails the claim to the Office, as determined by postmark, or on the date that the claim is received by the Office, whichever is the earliest determinable date.

(e) Incomplete Claims- If a claim filed under subsection (a) is incomplete, the Administrator shall notify the claimant of the information necessary to complete the claim and inform the claimant of such services as may be available through the Claimant Assistance Program established under section 104 to assist the claimant in completing the claim. Any time periods for the processing of the claim shall be suspended until such time as the claimant submits the information necessary to complete the claim. If such information is not received within 1 year after the date of such notification, the claim shall be dismissed.