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In fiscal 2006, we retained Crawford & Winiarski (“C&W”), an
independent, third-party consulting firm with expertise in the
area of asbestos valuation work, to assist us in calculating an
estimate of our liability for unasserted potential future
asbestos-related claims. The methodology used by C&W to
project our liability for unasserted potential future asbestosrelated
claims included C&W doing an analysis of (a) widely
accepted forecast of the population likely to have been
exposed to asbestos; (b) epidemiological studies estimating the
number of people likely to develop asbestos-related diseases;
(c) historical rate at which mesothelioma incidences resulted in
the payment of claims by us; (d) historical settlement averages
to value the projected number of future compensable
mesothelioma claims; (e) historical ratio of mesothelioma
related indemnity payments to non-mesothelioma indemnity
payments; and (f) historical defense costs and their relationship
with total indemnity payments.
As a result, at the end of fiscal 2006, we recorded a liability for
asbestos claims in the amount of $335.0 million, while paying
out $12.9 million for dismissals and/or settlements resulting in
our reserve moving from $99.2 million at February 28, 2006
to $421.3 million at May 31, 2006. This reserve increase was
based upon C&W’s analysis of our total estimated liability for
unasserted potential future claims through May 31, 2016.
This amount was calculated on a pre-tax basis and was not
discounted for the time value of money. In light of the
uncertainties inherent in making long-term projections, we
have determined that a ten-year period is the most reasonable
time period over which reasonably accurate estimates might
still be made for projecting asbestos liabilities and defense
costs and, accordingly, the reserve does not include asbestos
liabilities for any period beyond ten years. As of May 31, 2007,
total reserves were approximately $354.3 million, of which
$269.3 million was reserved for unasserted potential future
claims and $85.0 million was reserved for pending known
claims estimated to be paid in fiscal 2008. The material
components of the accruals are: (i) the gross number of open
malignancy claims (principally mesothelioma claims) as these
claims have the most significant impact on our asbestos
settlement costs; (ii) historical and current settlement costs
and dismissal rates by various categories; (iii) analysis of the
jurisdiction and governing law of the states in which these
claims are pending; (iv) outside defense counsel’s opinions and
recommendations with respect to the merits of such claims;
and (v) analysis of projected liability for unasserted potential
future claims.
In determining the amount of our asbestos reserves, we relied
on assumptions that are based on currently known facts and
projection models. Our actual expenses could be significantly
higher or lower than those recorded if assumptions used in our
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calculations vary significantly from actual results. Key variables
in these assumptions include the period of exposure to
asbestos claims, the number and type of new claims to be filed
each year, the rate at which mesothelioma incidences result in
compensable claims against us, the average cost of disposing
of each such new claim, the dismissal rates each year and the
related annual defense costs. Furthermore, predictions with
respect to these variables are subject to greater uncertainty as
the projections period lengthens. A significant upward or
downward trend in the number of claims filed, depending on
the nature of the alleged injury, the jurisdiction where filed,
the average cost of resolving each such claim and the quality
of the product identification, could change our estimated
liability, as could any substantial adverse verdict at trial.
A federal legislative solution, further state tort reform or
structured settlement transaction could also change the
estimated liability.
Subject to the foregoing variables, based on currently available
data, we believe that our current asbestos reserves are
sufficient to cover asbestos-related cash flow requirements for
our known pending and unasserted potential future asbestosrelated
claims. However, given the uncertainties associated
with projecting matters into the future and numerous other
factors outside of our control, we believe that it is reasonably
possible we may incur asbestos liabilities for the period
through 2017 and beyond in excess of our projection. Due to
the uncertainty inherent in the loss reserve estimation process,
we are unable to estimate an additional range of loss in excess
of our accruals. While it is reasonably possible that such excess
liabilities could be material to operating results in any given
quarter or year, we do not believe that it is reasonably possible
that such excess liabilities would have a material adverse effect
on our long-term results of operations, liquidity or
consolidated financial position.
During fiscal 2004, our third-party insurers’ claimed exhaustion
of coverage. Certain of our subsidiaries have filed a complaint
for declaratory judgment, breach of contract and bad faith
against these third-party insurers, challenging their assertion
that their policies covering asbestos-related claims have been
exhausted. The coverage litigation involves, among other
matters, insurance coverage for claims arising out of alleged
exposure to asbestos containing products manufactured by the
previous owner of the Bondex tradename before March 1, 1966.
On March 1, 1966, Republic Powdered Metals Inc. (as it was
known then), purchased the assets and assumed the liabilities
of the previous owner of the Bondex tradename. That previous
owner subsequently dissolved and was never a subsidiary of
Republic Powdered Metals, Bondex, RPM, Inc. or the Company.
Because of the earlier assumption of liabilities, however,
Bondex has historically and must continue to respond to
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