Corporate Successor Asbestos-Related Liability in Connection with Mergers or Consolidations

Miss. Code Ann. tit. 79, ch. 33

in effect

Miss. Code Ann. § 79-33-1 Definitions.

The following words and phrases shall have the meanings ascribed herein, unless the context clearly indicates otherwise: “Asbestos claim” means any claim, wherever or whenever made, for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to asbestos, including: Property damage caused by the installation, presence or removal of asbestos; The health effects of exposure to asbestos, including any claim for: 1. Personal injury or death; 2. Mental or emotional injury; 3. Risk of disease or other injury; or 4. The costs of medical monitoring or surveillance; and Any claim made by or on behalf of any person exposed to asbestos, or a representative, spouse, parent, child or other relative of the person. “Corporation” means a corporation for profit, including: A domestic corporation organized under the laws of this state; or A foreign corporation organized under laws other than the laws of this state. “Successor asbestos-related liabilities” means any liabilities, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due, that are related in any way to asbestos claims that were assumed or incurred by a corporation as a result of or in connection with a merger or consolidation, or the plan of merger or consolidation related to the merger or consolidation, with or into another corporation or that are related in any way to asbestos claims based on the exercise of control or the ownership of stock of the corporation before the merger or consolidation. The term includes liabilities that, after the time of the merger or consolidation for which the fair market value of total gross assets is determined under Section 79-33-7, were or are paid or otherwise discharged, or committed to be paid or otherwise discharged, by or on behalf of the corporation, or by a successor of the corporation, or by or on behalf of a transferor, in connection with settlements, judgments, or other discharges in this state or another jurisdiction. “Successor” means a corporation that assumes or incurs, or has assumed or incurred, successor asbestos-related liabilities. “Transferor” means a corporation from which successor asbestos-related liabilities are or were assumed or incurred.

Miss. Code Ann. § 79-33-3 Applicability.

The limitations in Section 79-33-5 shall apply to the following: A domestic corporation or a foreign corporation that has had a certificate of authority to transact business in this state and who is or has done business in this state that is a successor which became a successor prior to May 13, 1968, or which is any of that successor corporation’s successors but in the latter case only to the extent of the limitations of liability applied under Section 79-33-5(2); All asbestos claims, including asbestos claims that are pending on April 20, 2004, and all litigation involving asbestos claims, including litigation that is pending on April 20, 2004; Successors of a corporation to which this chapter applies. The limitations in Section 79-33-5 shall not apply to: Workers’ compensation benefits paid by or on behalf of an employer to an employee under this state’s workers’ compensation act or a comparable workers’ compensation law of another jurisdiction; Any claim against a corporation that does not constitute a successor asbestos-related liability; An insurance company, as that term is defined in Section 83-5-5; or Any obligations under the National Labor Relations Act (29 USCS Section 151 et seq.), as amended, or under any collective bargaining agreement.

Miss. Code Ann. § 79-33-5 Liabilities limited to fair market value of total gross assets at time of merger or consolidation; liabilities assumed or incurred in connection with prior merger or consolidation.

Except as further limited in subsection (2) of this section, the cumulative successor asbestos-related liabilities of a 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. The corporation does not have any responsibility for successor asbestos-related liabilities in excess of this limitation. If the transferor had assumed or incurred successor asbestos-related liabilities 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 such earlier merger or consolidation, shall be substituted for the limitation set forth in subsection (1) of this section, for purposes of determining the limitation of liability of a corporation.

Miss. Code Ann. § 79-33-7 Establishment of fair market value of total gross assets.

A corporation may establish the fair market value of total gross assets for the purpose of the limitations under Section 79-33-5 through any method reasonable under the circumstances, including: By reference to the going concern value of the assets or to the purchase price attributable to or paid for the assets in an arm’s-length transaction; or In the absence of other readily available information from which fair market value can be determined, by reference to the value of the assets recorded on a balance sheet. A showing by the successor of a reasonable determination of fair market value of total assets if prima facie evidence of the fair market value of those assets. Total gross assets include intangible assets. Total gross assets include the aggregate coverage under any applicable liability insurance that was issued to the transferor whose assets are being valued for purposes of this title and which insurance has been collected or is collectable to cover successor asbestos-related liabilities (except compensation for liabilities arising from workers’ exposure to asbestos solely during the course of their employment by the transferor). A settlement of a dispute concerning such insurance coverage entered into by a transferor or successor with the insurers of the transferor before April 20, 2004, shall be determinative of the aggregate coverage of such liability insurance to be included in the calculation of the transferor’s total gross assets. After a successor has established a reasonable determination of the fair market value of total assets under this title, a claimant that disputes that determination of the fair market value has the burden of establishing a different fair market value of those assets.

Miss. Code Ann. § 79-33-9 Adjustments to fair market value of total gross assets.

Except as provided in subsections (2), (3) and (4) of this section, the fair market value of total gross assets at the time of a merger or consolidation increases annually at a rate equal to the sum of: The prime rate as listed in the first edition of the Wall Street Journal published for each calendar year since the merger or consolidation, unless the prime rate is not published in that edition of the Wall Street Journal, in which case any reasonable determination of the prime rate on the first business day of the year may be used; and One percent (1%). The rate in subsection (1) of this section is not compounded. The adjustment of fair market value of total gross assets continues as provided under subsection (1) of this section until the date the adjusted value is exceeded by the cumulative amounts of successor asbestos-related liabilities paid or committed to be paid by or on behalf of the corporation or a predecessor, or by or on behalf of a transferor, after the time of the merger or consolidation for which the fair market value of total gross assets is determined. No adjustment of the fair market value of total gross assets shall be applied to any liability insurance otherwise included in the definition of the total gross assets by Section 79-33-7(3).

Miss. Code Ann. § 79-33-11 Choice of law.

The courts in this state shall apply, to the fullest extent permissible under the United States Constitution, this state’s substantive law, including the limitation under this chapter, to the issue of successor asbestos-related liabilities.

Source: Public.Resource.Org MS CodeURL: https://unicourt.github.io/cic-code-ms/transforms/ms/ocms/r78/gov.ms.code.title.79.htmlFetched: 10/18/2026