All Maine Asbestos Litigation (PNS Cases), In re

• Decision Date: 30 October 1985
• Docket Number: No. 84-1779,84-1779
• Citation: All Maine Asbestos Litigation (PNS Cases), In re, 772 F.2d 1023 (1st Cir. 1985)
• Parties: Prod.Liab.Rep.(CCH)P 10,721 In re ALL MAINE ASBESTOS LITIGATION (PNS CASES). Petition of UNITED STATES of America.
• Court: U.S. Court of Appeals — First Circuit

Page 1023

772 F.2d 1023

Prod.Liab.Rep.(CCH)P 10,721

In re ALL MAINE ASBESTOS LITIGATION (PNSCASES)Petition of UNITED STATES of America.

No. 84-1779.

United States Court of Appeals First Circuit.

Argued Jan. 9, 1985.

Decided Sept. 18, 1985.

Opinion on Denial of Rehearing En Banc Oct. 30, 1985.

Joseph B. Cox, Jr., Torts Branch, Civil Div., U.S. Dept. of Justice, Washington, D.C., with whom David S. Fishback, Torts Branch, Civil Div., U.S. Dept. of Justice, Harold J. Engel, Asst. Director, Peter A. Nowinski, Special Litigation Counsel, Washington, D.C., Richard S. Cohen, U.S. Atty., Portland, Me., and Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., were on brief for petitioner.

Jeffrey Silberfeld with whom Rivkin, Leff, Sherman & Radler, James G. Goggin and Verrill & Dana, Portland, Me., were on brief for Pittsburgh Corning Corp.

Mark G. Furey, Portland, Me., with whom Thomas R. McNaboe and Thompson McNaboe & Ashley, Portland, Me., were on brief for Raymark Industries, Inc.

Edward M. Fogarty, New York City, with whom Donald W. Fowler, Joe G. Hollingsworth, William J. Spriggs, Spriggs, Bode & Hollingsworth, Washington, D.C., John R. Linnell and Linnell, Choate & Webber, Auburn, Maine, were on brief for Eagle-Picher Industries, Inc.

Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

This interlocutory appeal regarding third-parties' claimed right to proceed against the United States for noncontractual indemnity or contribution constitutes one more step toward a determination of who shall be ultimately liable for the injuries to workers resulting from their exposure to asbestos in the Portsmouth Naval Shipyard (PNS).All of the workers whose injuries are the subject of the primary actions in this portion of the Maine asbestos cases are present or former civilian federal employees of PNS located at Kittery, Maine.In numerous individual actions, ¹ the workers or their representatives (plaintiffs), sued twenty-six manufacturers and distributors (defendants) for occupational disease or wrongful death caused by their exposure to asbestos dust that was created by the manufacturers' asbestos products.This exposure allegedly occurred while the workers were performing construction or repair work on U.S. naval vessels.

According to the complaints, plaintiffs seek to recover compensatory and punitive damages for injuries caused by the breach of required duties of care.Specifically, plaintiffs charge the defendant manufacturers with failure to use reasonable care in providing warnings to workers about the products' dangers and about the proper precautions to be taken when working with or near their asbestos products; failure to test their products and conduct safety research on them; and failure to remove the products from the market.Hence, the causes of action asserted are based on negligence, strict liability, and breach of express and implied warranties.Jurisdiction is based upon diversity of citizenship.Austin v. Unarco Industries, Inc., 705 F.2d 1, 3(1st Cir.), cert. dismissed, 463 U.S. 1247, 104 S.Ct. 34, 77 L.Ed.2d 1454(1983).

No suit was brought by any plaintiff against the government on any theory.As government employees, their exclusive remedy against the United States was under the Federal Employees' Compensation Act, 5 U.S.C. Secs. 8101,8116(c), which provides no-fault compensation for work-related injury or death.

Shortly after the filing of plaintiffs' complaints, defendants sought to implead the United States as a third-party defendant.Defendants charged that the United States had breached various contractual and tort duties of care to them and to the federal employees.Judge Gignoux, who has shepherded these consolidated actions since their inception, directed defendants to file a model third-party complaint containing all the theories they sought to press in their third-party actions.The pertinent complaint thereafter filed ² contained nine separate counts.In response to the United States' motion, the district court dismissed all but one count of the model third-party complaint and reserved judgment on Count VI.SeeIn re All Maine Asbestos Litigation, 581 F.Supp. 963, 980-81(D.Me.1984).Count VI, which seeks noncontractual indemnification and/or contribution, ³ is predicated upon the Federal Tort Claims Act(hereinafter FTCA), 28 U.S.C. Secs. 1346(b),2671 et seq.The FTCA provides, inter alia, that subject to certain exceptions, the government "shall be liable" in tort "in the same manner and to the same extent as a private individual under like circumstances."28 U.S.C. Sec. 2674.

The district court denied the government's motion to dismiss Count VI in a supplemental opinion.In re All Maine Asbestos Litigation (PNS Cases), 589 F.Supp. 1571(D.Me.1984).The court held that under the analytical approach mandated by the FTCA, the liability of the United States would be determined on the basis of the law a Maine court would apply to an analogous private shipyard employer.Applying Maine law, the court held that it was unclear whether Maine courts would recognize the "dual capacity" doctrine as a means of imposing liability on a workers' compensation-paying shipyard employer which is also a ship owner, as the United States is in this instance.While Maine law clearly prohibits any form of additional liability, including third-party liability, imposed upon employers covered by the state workers' compensation statute, the district court found that it was not clear whether this protection extended to a third-party claim for noncontractual indemnity or contribution brought against a compensation-paying private employer in its capacity as a vessel owner.The district court was of the opinion that the only appropriate course was to certify the question to the Supreme Judicial Court of Maine, and that it would do so after a trial on the merits.⁴

At the United States' request, the question whether Count VI, too, should have been dismissed was certified and accepted for interlocutory appeal.⁵This count contains two distinct theories of recovery.First, defendants press what may be summarized as land-based theories, i.e., alleged negligence of the government in its capacities as the plaintiffs' employer and as the owner of the shipyard.Second, defendants seek contribution or indemnity from the United States because of its alleged status as owner of the vessels on which the underlying plaintiffs worked at the time of their asbestos exposure.The gravamen of the claim is that, as the owner of the ships being constructed or repaired, the United States failed to exercise the appropriate level of care regarding the conditions under which the workers performed their duties, a dereliction of duty which allegedly was the proximate cause of the workers' injuries.Defendants base their second claim on the Longshore ⁶ and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 905(b).Whether either theory of liability contained in Count VI should have been dismissed is the question before us at this time, and we discuss their merits separately.

I. LAND-BASED THEORIES OF LIABILITY

A

The defendants allege that governmental third-party liability exists because the underlying plaintiffs' land-based exposure to asbestos was a result of the government's negligence in its capacity as employer and as shipyard owner.The government replies that the "only ruling timely brought to this Court ... [is] the government's appeal of the district court's adverse ruling as to the vessel owner claim."The government argues that the denial of appellee's petition to bring all other issues before this court on interlocutory appeal "precludes consideration of the manufacturers' claims other than that against the government qua vessel owner."

The government is correct that this court allowed interlocutory appeal on only the denial of the dismissal of, or alternatively, of summary judgment on, Count VI.We do not, however, read Count VI as narrowly as the government.In Count VI, defendants allege claims against the government not only in its capacity as a vessel owner but also "as the owner of the shipyards ... the designer of the specifications ..., and as the general supervisor of the work performed...."Model Third-Party Complaint B, p 39.Although the district court stated that "Count VI ... does not ... assert a claim against the United States in its capacity as an employer, but in its capacity as a vessel owner,"we think that Count VI on its face encompasses employer and shipyard owner theories.

Regardless of the fact that the district court did not read Count VI as stating a claim against the government qua employer, it discussed and applied the relevant situs law that governs land-based employers as an analytical step in its disposition of the vessel owner claim.We do not think, therefore, that the district court's failure to make a separate ruling on the land-based theories of liability bars our review of them.No prejudice will result to either party and we have all the facts necessary for such a review.

B

As the district court noted, "[i]t is undisputed that the PNS employees and deceased employees in these cases were covered by the Federal Employees' Compensation Act (FECA), 5 U.S.C. Sec. 8101 et seq., and that they are barred from suing the United States as their employer by FECA's exclusive liability provision, 33 U.S.C. Sec. 8116(c)."Interpreting these provisions recently, the Supreme Court held that "FECA's exclusive-liability provision, 5 U.S.C. Sec. 8116(c), does not directly bar a third-party indemnity action against the United States."Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 199, 103 S.Ct. 1033, 1038, 74 L.Ed.2d 911(1983).

The Court added, however, that other substantive law affirmatively granting the right to proceed against the government must be identified in order to maintain such a third-party action.Seeid. at 197 n. 8, 199, ...