04/09/2021
Hon. Amy Eddy Case Number: AC 17-0694 Asbestos Claims Court Judge Cascade County Clerk of District Court 415 2nd Avenue North #200, 200A Great Falls, MT 59401 (406) 758-5667
IN THE ASBESTOS CLAIMS COURT OF THE STATE OF MONTANA
IN RE ASBESTOS LITIGATION, Cause No. AC 17-0694
Consolidated Cases. ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING SETTLEMENT AND OF DISMISSAL WITH PREJUDICE
This matter is before the Court on the Odegaard Kovacich Snipes, P.C.("OKS") Libby
Mine Claimants'1 and the State of Montana's2 ("State") Joint Motion Approving Consolidation
and Petition for Order Approving Settlement and of Dismissal with Prejudice (hereinafter
"Petition/Dismissal Motion"). A hearing was held before this Court on March 30, 2021 on the
Petition/Dismissal Motion. On the basis of the Petition/Dismissal Motion, the hearing thereon,
and good cause appearing therefor, the Court, having fully considered the same and being thereby
advised in the premises, now enters the following:
1 The OKS Libby Mine Claimants are defined in the Memorandum of Understanding of Settlement Agreement ("OKS/State MOU"), dated January 8, 2021, attached to the Petition/Dismissal Motion as Exhibit A.
2 The State of Montana includes any and all departments, agencies, divisions, and employees of the State of Montana.
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 1 FINDINGS OF FACT
1) Beginning in the late 1960's and increasingly into the 1990's, Zonolite Mining
Company/W.R. Grace (collectively "Grace") employees and former employees and their family
members made claims against Grace for asbestos-related diseases.
2) Many of those claims settled and some cases were tried to verdict.
3) On April 2, 2001, Grace filed a chapter 11 bankruptcy petition.
4) Since the Grace bankruptcy filing, in addition to this matter, the lawsuits identified
on Exhibit B to the Petition/Dismissal Motion have been filed by the OKS Libby Mine Claimants
against the State.
5) In all the lawsuits and claims against the State, the OKS Libby Mine Claimants
allege injury and damages from alleged asbestos-related disease allegedly caused by the State
among other defendants.
6) In December 2020, the OKS Libby Mine Claimants and the State engaged in
mediation in an effort to resolve the OKS Libby Mine Claimants' lawsuits and claims against the
State.
7) Representatives of the State's insurer, National Indemnity Company ("NIC"),
attended the mediation.
8) As a result ofthe mediation, the State and OKS Libby Mine Claimants entered into
the OKS/State MOU attached as Exhibit A to the Petition/Dismissal Motion.
9) The OKS/State MOU sets forth the terms and conditions ofthe settlement between
the OKS Libby Mine Claimants and the State, including identification of settling parties; lawsuits
and claims being settled; amount of settlement; form of releases; and payment of the settlement
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 2 amount into a Qualified Settlement Fund Trust. NIC made no contribution to the OKS/State
Tentative Settlement.
10) Under the OKS/State MOU, upon judicial approval, the OKS Libby Mine
Claimants' lawsuits and claims against the State will be settled for the following consideration:
a. Payment in the amount of$754,000.00, which subject to court approval and
the State not being precluded by court order from depositing the $754,000.00 into the OKS Libby
Mine Claimants Qualified Settlement Fund Trust("OKS Libby Mine Claimant QSF"), will be paid
into the OKS Libby Mine Claimant QSF within thirty calendar days of court approval.
b. A contingent payment of additional funds to the OKS Libby Mine
Claimants which payment is contingent upon the State recovering cash payments from NIC in the
pending action National Indemnity Company v. State ofMontana("NIC v. State"), Montana First
Judicial District Court, Lewis & Clark County, Cause No. XDDV-2012-140, as follows:
I. Should the State be paid by NIC $1,733,900.00 over and above
$25,530,936.19 (the $16,100,000.00 previously paid by NIC into the "Libby Mine Claimants'
Qualified Settlement Fund Trust" approved in Orr v. State, Montana First Judicial District Court,
Lewis & Clark County, Cause No. BDV-2001-423 (hereinafter "Orr QSF") and an additional
$9,430,936.19 in NIC v. State), the State shall pay into the OKS Libby Mine Claimants QSF an
additional $263,900.00.
II. Should the State be paid by NIC less than $1,733,900.00 over and
above the $25,530,936.19 referenced in paragraph 2.b.I. above, the contingent $263,900.00 shall
be reduced by .1522 for each dollar paid to the State by NIC less than $1,733,900.00 over and
above the $25,530,936.19 referenced in paragraph 2.b.I. above. For example, if the State is paid
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 3 by NIC $1,560,510.00 over and above the $25,530,936.19 referenced in paragraph 2.b.I. above,
the contingent $263,900.00 shall be reduced to $237,510.00.
III. Should the State not be paid by NIC any money over and above the
$25,530,936.19 referenced in paragraph 2.b.I. above, there will be no additional payment due the
OKS Libby Mine Claimants over the $754,000.00 set forth in paragraph 2.a. above.
c. Should the State be paid by NIC at least $50,379,621.61, any amount not
already paid under paragraph 2.a. or 2.b. shall be accelerated and paid within thirty (30) days of
the State receiving such funds from NIC, court approval of the OKS/State Tentative Settlement,
and no order precluding the State from depositing such funds into the OKS Libby Mine Claimant
QSF.
d. W.R. Grace PI Trust Indirect Claims: The OKS Libby Mine Claimants'
lawsuits and claims shall be subject to the "State Round 4 MOU Indirect Claims Exemplar"
attached to the OKS/State MOU.
11) The OKS Libby Mine Claimants' counsel have previously established the OKS
Libby Mine Claimant QSF for purposes of receipt and distribution of settlement proceeds. The
OKS Libby Mine Claimants QSF will be subject to the jurisdiction of this Court.
12) Under the OKS/State MOU,the OKS Libby Mine Claimants QSF will be funded
by payments from the State.
13) The OKS/State Tentative Settlement resolves the OKS Libby Mine Claimants'
lawsuits and claims against the State.
14) Copies of releases from the OKS Libby Mine Claimants have been provided to the
Court. The Court has also been advised of the amount of the OKS/State Tentative Settlement to
be received by each OKS Libby Mine Claimant.
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 4 15) Litigation against the State concerning alleged asbestos-related injury and damages
arising out of the State's alleged actions/inactions at the W.R. Grace operations in and near Libby,
Montana, has spanned nearly 21 years. The facts and legal theories involving that litigation are
extraordinarily complex. The OKS Libby Mine Claimants' lawsuits and claims against the State
involve numerous disputed factual questions and unresolved legal questions. Given the
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04/09/2021
Hon. Amy Eddy Case Number: AC 17-0694 Asbestos Claims Court Judge Cascade County Clerk of District Court 415 2nd Avenue North #200, 200A Great Falls, MT 59401 (406) 758-5667
IN THE ASBESTOS CLAIMS COURT OF THE STATE OF MONTANA
IN RE ASBESTOS LITIGATION, Cause No. AC 17-0694
Consolidated Cases. ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING SETTLEMENT AND OF DISMISSAL WITH PREJUDICE
This matter is before the Court on the Odegaard Kovacich Snipes, P.C.("OKS") Libby
Mine Claimants'1 and the State of Montana's2 ("State") Joint Motion Approving Consolidation
and Petition for Order Approving Settlement and of Dismissal with Prejudice (hereinafter
"Petition/Dismissal Motion"). A hearing was held before this Court on March 30, 2021 on the
Petition/Dismissal Motion. On the basis of the Petition/Dismissal Motion, the hearing thereon,
and good cause appearing therefor, the Court, having fully considered the same and being thereby
advised in the premises, now enters the following:
1 The OKS Libby Mine Claimants are defined in the Memorandum of Understanding of Settlement Agreement ("OKS/State MOU"), dated January 8, 2021, attached to the Petition/Dismissal Motion as Exhibit A.
2 The State of Montana includes any and all departments, agencies, divisions, and employees of the State of Montana.
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 1 FINDINGS OF FACT
1) Beginning in the late 1960's and increasingly into the 1990's, Zonolite Mining
Company/W.R. Grace (collectively "Grace") employees and former employees and their family
members made claims against Grace for asbestos-related diseases.
2) Many of those claims settled and some cases were tried to verdict.
3) On April 2, 2001, Grace filed a chapter 11 bankruptcy petition.
4) Since the Grace bankruptcy filing, in addition to this matter, the lawsuits identified
on Exhibit B to the Petition/Dismissal Motion have been filed by the OKS Libby Mine Claimants
against the State.
5) In all the lawsuits and claims against the State, the OKS Libby Mine Claimants
allege injury and damages from alleged asbestos-related disease allegedly caused by the State
among other defendants.
6) In December 2020, the OKS Libby Mine Claimants and the State engaged in
mediation in an effort to resolve the OKS Libby Mine Claimants' lawsuits and claims against the
State.
7) Representatives of the State's insurer, National Indemnity Company ("NIC"),
attended the mediation.
8) As a result ofthe mediation, the State and OKS Libby Mine Claimants entered into
the OKS/State MOU attached as Exhibit A to the Petition/Dismissal Motion.
9) The OKS/State MOU sets forth the terms and conditions ofthe settlement between
the OKS Libby Mine Claimants and the State, including identification of settling parties; lawsuits
and claims being settled; amount of settlement; form of releases; and payment of the settlement
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 2 amount into a Qualified Settlement Fund Trust. NIC made no contribution to the OKS/State
Tentative Settlement.
10) Under the OKS/State MOU, upon judicial approval, the OKS Libby Mine
Claimants' lawsuits and claims against the State will be settled for the following consideration:
a. Payment in the amount of$754,000.00, which subject to court approval and
the State not being precluded by court order from depositing the $754,000.00 into the OKS Libby
Mine Claimants Qualified Settlement Fund Trust("OKS Libby Mine Claimant QSF"), will be paid
into the OKS Libby Mine Claimant QSF within thirty calendar days of court approval.
b. A contingent payment of additional funds to the OKS Libby Mine
Claimants which payment is contingent upon the State recovering cash payments from NIC in the
pending action National Indemnity Company v. State ofMontana("NIC v. State"), Montana First
Judicial District Court, Lewis & Clark County, Cause No. XDDV-2012-140, as follows:
I. Should the State be paid by NIC $1,733,900.00 over and above
$25,530,936.19 (the $16,100,000.00 previously paid by NIC into the "Libby Mine Claimants'
Qualified Settlement Fund Trust" approved in Orr v. State, Montana First Judicial District Court,
Lewis & Clark County, Cause No. BDV-2001-423 (hereinafter "Orr QSF") and an additional
$9,430,936.19 in NIC v. State), the State shall pay into the OKS Libby Mine Claimants QSF an
additional $263,900.00.
II. Should the State be paid by NIC less than $1,733,900.00 over and
above the $25,530,936.19 referenced in paragraph 2.b.I. above, the contingent $263,900.00 shall
be reduced by .1522 for each dollar paid to the State by NIC less than $1,733,900.00 over and
above the $25,530,936.19 referenced in paragraph 2.b.I. above. For example, if the State is paid
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 3 by NIC $1,560,510.00 over and above the $25,530,936.19 referenced in paragraph 2.b.I. above,
the contingent $263,900.00 shall be reduced to $237,510.00.
III. Should the State not be paid by NIC any money over and above the
$25,530,936.19 referenced in paragraph 2.b.I. above, there will be no additional payment due the
OKS Libby Mine Claimants over the $754,000.00 set forth in paragraph 2.a. above.
c. Should the State be paid by NIC at least $50,379,621.61, any amount not
already paid under paragraph 2.a. or 2.b. shall be accelerated and paid within thirty (30) days of
the State receiving such funds from NIC, court approval of the OKS/State Tentative Settlement,
and no order precluding the State from depositing such funds into the OKS Libby Mine Claimant
QSF.
d. W.R. Grace PI Trust Indirect Claims: The OKS Libby Mine Claimants'
lawsuits and claims shall be subject to the "State Round 4 MOU Indirect Claims Exemplar"
attached to the OKS/State MOU.
11) The OKS Libby Mine Claimants' counsel have previously established the OKS
Libby Mine Claimant QSF for purposes of receipt and distribution of settlement proceeds. The
OKS Libby Mine Claimants QSF will be subject to the jurisdiction of this Court.
12) Under the OKS/State MOU,the OKS Libby Mine Claimants QSF will be funded
by payments from the State.
13) The OKS/State Tentative Settlement resolves the OKS Libby Mine Claimants'
lawsuits and claims against the State.
14) Copies of releases from the OKS Libby Mine Claimants have been provided to the
Court. The Court has also been advised of the amount of the OKS/State Tentative Settlement to
be received by each OKS Libby Mine Claimant.
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 4 15) Litigation against the State concerning alleged asbestos-related injury and damages
arising out of the State's alleged actions/inactions at the W.R. Grace operations in and near Libby,
Montana, has spanned nearly 21 years. The facts and legal theories involving that litigation are
extraordinarily complex. The OKS Libby Mine Claimants' lawsuits and claims against the State
involve numerous disputed factual questions and unresolved legal questions. Given the
complexity of the litigation, numerous disputed factual questions, unresolved legal issues, and
risks of continued litigation, the OKS/State Tentative Settlement is reasonable.
CONCLUSIONS OF LAW
1) Mont. Code Ann. § 2-9-303(1) provides in relevant part that: "A settlement from
the self-insurance reserve fund or deductible reserve fund exceeding $10,000 must be approved by
the district court of the first judicial district except when suit has been filed in another judicial
district, in which case the presiding judge shall approve the compromise settlement."
2) Pursuant to Mont. Code Ann. § 2-9-303(1), this Court has jurisdiction to issue an
order approving the consolidation ofcases identified on Exhibit B to the Petition/Dismissal Motion
into this matter, approving the OKS/State Tentative Settlement, and dismissing with prejudice the
OKS Libby Mine Claimants' lawsuits and claims against the State.
3) Without consolidation, the OKS Libby Mine Claimants and the State would have
been required to file a motion and appear for hearings for approval of settlement and orders of
dismissal with prejudice in multiple proceedings.
4) Judicial efficiency is best served by one proceeding for judicial. approval of the
OKS/State Tentative Settlement and of dismissal with prejudice of the OKS Libby Mine
Claimants' lawsuits and claims against the State.
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 5 5) Given the complexity and significant risks of continuing litigation of the cases and
claims and the disputed factual questions and unresolved legal issues, the settlement is reasonable.
ORDER
IT IS HEREBY ORDERED that the Joint Motion Approving Consolidation and Petition
for Order Approving Settlement and ofDismissal with Prejudice is GRANTED.
IT IS ORDERED that the OKS/State Tentative Settlement is APPROVED.
IT IS ORDERED that the OKS Libby Mine Claimants' lawsuits and claims against the
State are hereby DISMISSED WITH PREJUDICE. Each party shall bear its own costs and fees.
IT IS ORDERED that the parties shall file a copy of this order with the Clerk of Court for
the Montana Twenty-third Judicial District with reference to each of the cause numbers set forth
on Exhibit B to the Joint Motion Approving Consolidation and Petition for Order Approving
Settlement and ofDismissal with Prejudice.
IT IS FURTHER ORDERED that this order shall have no effect concerning the OKS Libby
Mine Claimants' cases and claims against defendants other than the State.
ELECTRONICALLY DATED AND SIGNED BELOW ,giy9;la
ORDER APPROVING CONSOLIDATION AND PETITION FOR ORDER APPROVING SETTLEMENT AND OF DISMISSAL WITH PREJUDICE PAGE 6