Authement v. Ingram Barge Co.

• Decision Date: 04 October 2013
• Docket Number: Civil Action No. 10–2107.
• Citation: 977 F.Supp.2d 606
• Parties: Edward AUTHEMENT v. INGRAM BARGE COMPANY, et al.
• Court: U.S. District Court — Eastern District of Louisiana

977 F.Supp.2d 606

Edward AUTHEMENT

v.INGRAM BARGE COMPANY, et al.

Civil Action No. 10–2107.

United States District Court, E.D. Louisiana.

Oct. 4, 2013.

Keith E. Patton, Shrader & Associates, LLP, Houston, TX, for Edward Authement.

Thomas Joseph Smith, Peter Ashley Bourgeois, Galloway, Johnson, Tompkins, Burr & Smith, Mark John Spansel, David C. Coons, Kyle Potts, Adams & Reese, LLP, New Orleans, LA, Adraon D. Greene, Alexis M. Butler, James T. Bailey, Galloway, Johnson, Tompkins, Burr & Smith, Houston, TX, Jeffrey Green, Austin & Associates, LLC, Harvey, LA, for Ingram Barge Company, et al.

ORDER AND REASONS

JANETRICHE MILAZZO, District Judge.

Before the Court are cross Motions for Summary Judgment filed by Defendants Kinder Morgan Bulk Terminals, Inc., Kinder Morgan Liquids Terminals, LLC, and Kinder Morgan Energy Partners, LP (collectively “GATX”), Defendant Valero Refining Texas, LP (“Valero”), and Plaintiff. For the following reasons, GATX's Motion (R. Doc. 216) is GRANTED, and Plaintiff's cross Motion (R. Doc. 209) is DENIED AS MOOT. Valero's Motion (R. Doc. 197) is DENIED, and Plaintiff's cross Motion (R. Doc. 210) is GRANTED IN PART.

BACKGROUND

This is a maritime personal injury action originally brought by Plaintiff Edward Authement.¹ Plaintiff worked as a tankerman on various vessels in navigation from 1977 to 1993. Plaintiff alleges that he loaded and unloaded chemicals containing benzene at petrochemical facilities owned and operated by GATX and Valero. Plaintiff further alleges that he contracted Acute Myelogenous Leukemia as a result of his exposure to benzene.

Plaintiff filed suit in July 2010. His second amended complaint named seventeen defendants, and asserted causes of action under the Jones Act and the general maritime law. The only remaining Defendants are GATX and Valero. Plaintiff has asserted causes of action against each for negligence under the general maritime law and strict products liability. It is undisputed that neither GATX nor Valero was Plaintiff's Jones Act employer.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c) (2012). A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor. Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir.1997). “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.” Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.1995). Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “In response to a properly supported motion for summary judgment, the nonmovant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof at trial.” Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.2004) (internal citations omitted). “We do not ... in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.” Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir.2000) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)). Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.” Boudreaux v. Banctec, Inc., 366 F.Supp.2d 425, 430 (E.D.La.2005).

LAW AND ANALYSIS

GATX and Valero have each moved for summary judgment and seek dismissal of all claims against them. Plaintiff has also moved for summary judgment as to certain affirmative defenses asserted by each Defendant.

I. GATX's Motion for Summary Judgment

GATX moves this Court for the entry of summary judgment, dismissing Plaintiff's claims for products liability and negligence under the general maritime law. The Court addresses each claim in turn. For the following reasons, the Motion is granted, and GATX is hereby dismissed.

A. Products Liability

The Supreme Court has recognized products liability as part of the general maritime law. E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 865, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). “The general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules.” Id. (citations omitted). In developing the general maritime law, courts have consulted state law as well as the Restatement of Torts. Vickers v. Chiles Drilling Co., 822 F.2d 535, 538 (5th Cir.1987) (citations omitted). Thus, the initial question before the Court is whether to apply state law, the Restatement, or some combination of both to this maritime products liability action. The Fifth Circuit has not definitively addressed this issue. See Hebert v. Outboard Marine Corp., 638 F.Supp. 1166, 1170 (E.D.La.1986) (recognizing lack of guidance). Numerous courts, however, have embraced Section 402A of the Restatement (Second) of Torts as the “best expression” of the law of products liability under the general maritime law. Ocean Barge Transp. Co. v. Hess Oil Virgin Islands Corp., 726 F.2d 121, 123 (3d Cir.1984) (collecting cases); see also Hebert, 638 F.Supp. at 1170 (same); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 5–7 (5th ed. 2012) (“The applicable substantive law of products liability in admiralty is Section 402a of the Restatement (Second) of Torts.”). Indeed, both the Supreme Court and the Fifth Circuit have applied the Restatement (Second) of Torts in maritime products liability cases. See, e.g., Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 117 S.Ct. 1783, 138 L.Ed.2d 76 (1997); Vickers, 822 F.2d 535; Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330 (5th Cir.1984); Martinez v. Dixie Carriers, Inc., 529 F.2d 457 (5th Cir.1976). Other sections of this Court have applied Section 402A as well. See, e.g., Cargill, Inc. v. Degesch America, Inc., 875 F.Supp.2d 667 (E.D.La.2012); Penn Mar., Inc. v. Rhodes Elec. Servs., Inc., No. 11–02761, 2012 WL 3027937 (E.D.La. July 24, 2012); Daigle v. L & L Marine Trans. Co., 322 F.Supp.2d 717 (E.D.La.2004). Moreover, by applying the Restatement in maritime products liability cases, “the Court furthers the federal interest in establishing uniform rules of maritime law.” Transco Syndicate # 1, Ltd. v. Bollinger Shipyards, Inc., 1 F.Supp.2d 608, 614 (E.D.La.1998) (citation omitted).

Section 402A provides as follows:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

The threshold inquiry under Section 402A is whether the defendant is a seller or manufacturer of the allegedly defective product.²See Daigle, 322 F.Supp.2d at 727; 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 5–7 (5th ed. 2012). The record is clear that GATX neither sold nor manufactured the products of which Plaintiff complains. Rather, as Plaintiff concedes in his briefing, GATX provided “a simple pick up and drop off location” for various oil and chemical companies. (R. Doc. 242.) In other words, manufacturers and refiners contracted with shipping companies to transport products to and from GATX's storage facilities. GATX merely provided bulk storage services.

Plaintiff nonetheless contends that GATX is liable under Section 402A as a “distributor” who “places a product on the market or introduces it into the stream of commerce.” ( Id.) This argument is unpersuasive for multiple reasons. First, while comment f to Section 402A provides that liability may extend to a “distributor,” the reference is made in the context of describing when a person is “engaged in the business of selling products,” under Section 402A(1)(a). Restatement (Second) of Torts § 402A cmt. f (emphasis added). There is nothing in Section 402A or its comments to suggest liability extends beyond one who sells or manufactures products. To the contrary, Section 402A and the comments repeatedly use the terms “sell,” “seller,” and “selling” when describing the scope of liability. Moreover, Black's Law Dictionary defines a “distributor” as a “wholesaler, jobber, or other manufacturer or supplier that sells chiefly to retailers and commercial users.” Black's Law Dictionary (9th ed. 2009) (emphasis added).

Second, extending liability to entities such as GATX that act merely as conduits in the stream of commerce is inconsistent with the policy justifications for imposing strict liability. As explained in comment c, “by marketing his product for use and consumption, ...