Last Injurious Exposure Does Not Apply to Insurers of Responsible Employers in Hearing Loss Claims

The Appellate Court of Maryland in PA. Mfrs. Ass’n v. Cree, 259. MD. App. 179 (2023), addressed the question of whether, in the context of a hearing loss claim, the last injurious exposure rule governs where an insurer is liable for a claim when the employer had more than one insurer during the period of the Claimant’s exposure to hazardous noise.

In Cree, the Claimant sustained occupational hearing loss while working for three different employers over the course of many years as a public safety officer. The employer involved in the appeal had more than one insurer in the applicable period of time. PMA argued that in conflict with the last injurious exposure rule set forth in LE 9-502(b), liability was apportioned amongst three separate insurers.  

On appeal, the Appellate Court of Maryland peeled back the layers of the statute and identified that the last injurious exposure rule conflicted with the requirements for compensable occupational hearing loss under LE 9-505 and the apportionment and impleader provisions in LE 9-649 through 9-652. Specifically, the Appellate Court concluded that the last injurious exposure rule was not an applicable defense for the insurers being liable because the provison “except as otherwise provided” in 9-502(c) applied.

Ultimately, the appellate court’s decision means that if any responsible employer has more than one insurer during a period of hazardous exposure, they would not be able to argue that the last insurer of that employer is responsible for the entirety of the compensation.

George A. Sfikas