Asbestos maker must pay city $8.3 million

September 13, 1994|By Norris P. West | Norris P. West,Sun Staff Writer

Maryland's highest court ruled yesterday that an asbestos maker must pay Baltimore $8.3 million for the cost of removing the cancer-causing material from six city-owned buildings, but the court denied the city $2 million in punitive damages.

The Maryland Court of Appeals' unanimous decision was a partial victory for the city, which had contended that it was entitled to punitive damages from New Jersey-based Asbestospray Corp. The company, meanwhile, had sought to overturn all of the $10.3 million awarded by a Baltimore Circuit Court jury in 1992.

City officials said they were pleased to keep the larger part of the award.

"The city has done quite well in recovering what would be taxpayer funds to remove asbestos," said City Solicitor Neal M. Janey, adding that the city has won millions more in court judgments against asbestos makers and suppliers in recent years.

In the case decided yesterday, the city charged that Asbestospray acted with malice and in bad faith by selling its sprayed-on fireproofing asbestos between 1956 and 1971. It insisted the company knew at the time that the material was dangerous.

A Circuit Court jury agreed, awarding the city compensatory and punitive damages.

But yesterday's 56-page decision by the Court of Appeals stated that the city failed to prove Asbestospray knew that occupants of buildings containing asbestos could be harmed by the company's product.

"The city was further required to prove that, armed with this knowledge, Asbestospray proceeded to market its fireproofing product in bad faith," stated the opinion, written by Judge John C. Eldridge. "The evidence introduced at trial, however, fell far short."

Asbestospray has maintained that it had been convinced the product could be sealed to prevent fibers from being released into the air. To demonstrate the company's ignorance of the dangers, a top Asbestospray official testified in the 1992 trial that the fireproofing was in his own home from 1952 to 1971.

Thomas F. McDonough, a lawyer for Asbestospray, said he was "obviously happy they reversed on punitive damages." He said he had not seen the opinion and couldn't comment further.

The city has spent $8 million during a 3 1/2 -year period removing Asbestospray fireproofing from Walbrook High School. Asbestos in the building had deteriorated, contaminating furniture, equipment and books.

The city also is spending $316,741 to remove Asbestospray material from five other buildings.

Baltimore sued another asbestos maker, Chicago-based United States Gypsum Co., in the same case and won a jury verdict of $8.16 million in compensatory damages and $4 million in punitive damages -- much of it for removing asbestos from the police headquarters. It won $713,986 from an asbestos installation company, Hampshire Industries.

United States Gypsum appealed that damage award, but settled with the city in May. Neither George A. Nilson, an attorney for United States Gypsum, or city lawyers would disclose settlement terms.

Last year, the city won $4.7 million in compensatory damages and $2.6 million in punitive damages against Owens-Corning Fiberglas in a case that has been appealed to the Court of Special Appeals. That case is pending.

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