2010 Wisconsin Code
Chapter 895. Damages, liability, and miscellaneous provisions regarding actions in courts.
895.61 Asbestos successor corporation; limitation on liability.

895.61

895.61 Asbestos successor corporation; limitation on liability.

895.61(1)

(1) Definitions. In this section:

895.61(1)(a)

(a) "Asbestos claim" means a claim for damages, losses, indemnification, contribution, or other relief arising out of or related in any way to asbestos, including all of the following:

895.61(1)(a)1.

1. A claim related to the health effects of exposure to asbestos, including a claim related to any of the following:

895.61(1)(a)1.a.

a. Personal injury or death.

895.61(1)(a)1.b.

b. Mental or emotional injury.

895.61(1)(a)1.c.

c. Increased risk of disease or other injury.

895.61(1)(a)1.d.

d. Costs of medical monitoring or surveillance.

895.61(1)(a)2.

2. A claim made by or on behalf of any person exposed to asbestos, or by a spouse, parent, child, or other relative of the person.

895.61(1)(a)3.

3. A claim related to the installation, presence, or removal of asbestos.

895.61(1)(b)

(b) "Corporation" means a domestic corporation for profit organized under the laws of this state or a foreign corporation for profit organized under laws other than the laws of this state.

895.61(1)(c)

(c)

895.61(1)(c)1.

1. "Successor asbestos-related liability" means any liability that is related to an asbestos claim and that was assumed or incurred by a corporation as a result of or in connection with any of the following:

895.61(1)(c)1.a.

a. A merger or consolidation with a transferor.

895.61(1)(c)1.b.

b. The plan of merger or consolidation with a transferor related to the merger or consolidation with or into another corporation.

895.61(1)(c)1.c.

c. An asbestos claim based on the exercise of control or ownership of stock or a corporation before the merger or consolidation with a transferor.

895.61(1)(c)2.

2. "Successor asbestos-related liability" includes liability that, after the time of the merger or consolidation with a transferor for which the fair market value of the total gross assets of the successor corporation was determined under sub. (4), was paid, discharged, or committed to be paid or discharged by or on behalf of the corporation, successor corporation, or transferor in connection with a settlement, judgment, or discharge in this state or in another jurisdiction.

895.61(1)(d)

(d) "Successor corporation" means a corporation that has assumed or incurred successor asbestos-related liabilities before January 1, 1972, or that is any of that successor corporation's successors.

895.61(1)(e)

(e) "Total gross assets" includes intangible assets.

895.61(1)(f)

(f) "Transferor" means a corporation from which a successor asbestos-related liability is or was assumed or incurred.

895.61(2)

(2) Applicability.

895.61(2)(a)

(a) The limitations in sub. (3) apply to any successor corporation, except as provided in par. (b).

895.61(2)(b)

(b) The limitations in sub. (3) do not apply to any of the following:

895.61(2)(b)1.

1. Worker's compensation benefits paid under ch. 102 or a comparable worker's compensation law of another jurisdiction.

895.61(2)(b)2.

2. Any claim against a successor corporation that does not constitute a successor asbestos-related liability.

895.61(2)(b)3.

3. Any obligation under 29 USC 151, et seq., or under any collective bargaining agreement.

895.61(2)(b)4.

4. A successor corporation that, after a merger or consolidation with a transferor, continued in the business of mining asbestos, selling or distributing asbestos fibers, or manufacturing, distributing, removing, or installing asbestos-containing products that were the same or substantially the same as those products that were previously manufactured, distributed, removed, or installed by the transferor.

895.61(3)

(3) Measure of liability.

895.61(3)(a)

(a) Except as provide in par. (b), the cumulative successor asbestos-related liabilities of a successor corporation are limited to the fair market value of the total gross assets of the transferor determined as of the time of the merger or consolidation with the successor corporation. Subject to par. (b), the successor corporation does not have responsibility for any successor asbestos-related liabilities in excess of this limitation.

895.61(3)(b)

(b) If the transferor to the successor corporation had assumed or incurred successor asbestos-related liability in connection with a prior merger or consolidation with a prior transferor, then the fair market value of the total assets of the prior transferor determined as of the time of the earlier merger or consolidation is substituted for the limitation under par. (a) for purposes of determining the limitation on liability of the successor corporation.

895.61(4)

(4) Establishing the fair market value of total gross assets.

895.61(4)(a)

(a) A successor corporation may establish the fair market value of total gross assets for purposes of the limitations under sub. (3) by any reasonable method, including any of the following:

895.61(4)(a)1.

1. By reference to the going concern value of the assets.

895.61(4)(a)2.

2. By reference to the purchase price attributable to or paid for the assets in an arms-length transaction.

895.61(4)(a)3.

3. In the absence of other readily available information from which the fair market value can be determined, by reference to the value of the assets recorded on a balance sheet.

895.61(4)(b)

(b) To the extent that total gross assets include liability insurance that was issued to the transferor whose assets are being valued under this subsection, the applicability, terms, conditions, and limits of the insurance are not affected by this section. This section does not affect the rights and obligations of an insurer, transferor, or successor corporation under any insurance contract or related agreement, including all of the following:

895.61(4)(b)1.

1. A preenactment settlement resolving a coverage-related dispute.

895.61(4)(b)2.

2. The right of an insurer to seek payment for applicable deductibles, retrospective premiums, or self-insured retentions.

895.61(4)(b)3.

3. The right of an insurer to seek contribution from a successor corporation for an uninsured or self-insured period or for a period when insurance is uncollectible or unavailable.

895.61(4)(c)

(c) Subject to par. (b), to the extent that total gross assets include any liability insurance, a settlement of a dispute concerning the liability insurance coverage entered into by the transferor or successor corporation with the insurer of the transferor before August 1, 2009, shall be determinative of the total coverage of the liability insurance for inclusion in the calculation of the transferor's total gross assets.

895.61(5)

(5) Adjustment of fair market value.

895.61(5)(a)

(a) Except as provided in pars. (b) to (d), the fair market value of the total gross assets at the time of the merger or consolidation with the transferor shall increase annually at a rate equal to the sum of the following:

895.61(5)(a)1.

1. The weekly prime rate for the first week of each calendar year since the merger or consolidation, as reported by the federal reserve board in federal reserve statistical release H. 15.

895.61(5)(a)2.

2. One percent.

895.61(5)(b)

(b) The rate under par. (a) may not be compounded.

895.61(5)(c)

(c) The adjustment of the fair market value of the total gross assets shall continue as provided in par. (a) until the date that the adjusted fair market value of the total gross assets is first exceeded by the cumulative amounts of successor asbestos-related liabilities paid or committed to be paid by or on behalf of the successor corporation or a predecessor of the successor corporation or by or on behalf of a transferor after the time of the merger or consolidation for which the fair market value of the total gross assets is determined.

895.61(5)(d)

(d) No adjustment of the fair market value of total gross assets may be applied to any liability insurance that is included in the definition of total gross assets under sub. (4) (b).

895.61(6)

(6) Liberal construction intended. This section shall be liberally construed to effect its purposes with regard to successor corporations.

895.61 - ANNOT.

History: 2009 a. 28.