Boyett v. Keene Corp.

Decision Date08 February 1993
Docket NumberNo. 1:92 CV 292.,1:92 CV 292.
Citation815 F. Supp. 204,1993 AMC 1964
PartiesRosemary Posey BOYETT and Roy Boyett, v. KEENE CORPORATION, et al.
CourtU.S. District Court — Eastern District of Texas


Scott R. Bickford, New Orleans, LA, for plaintiffs.

James Hayes Powers, Houston, TX, Walter Watkins, Jackson, MS, John R. Santa Cruz, New Orleans, LA, for defendants.


JUSTICE, District Judge.

I. Introduction

The plaintiff, Rosemary Posey Boyett, obtained a jury verdict against the defendant, Keene Corporation, in the amount of $226,466.09,1 for the death of her husband, Roy Boyett. The decedent was a marine engineer whose death was caused by mesothelioma.

Keene claims an offset against the verdict for amounts received in settlement by the plaintiff from the shipowners2 and other asbestos manufacturers. The Shipowners paid a total of $312,500.00 in settlement of the plaintiff's claims, and the manufacturers paid $97,000.00.3 Since the plaintiff has already received an amount in excess of the jury verdict in settlements, Keene contends that plaintiff is entitled to nothing from it.

One of the Shipowners, States Marine Lines, seeks indemnification from Keene for $230,625, which represents the portion of its settlement attributable to Boyett's service on the three vessels which were fitted with Keene insulation, specifically, the Hoosier State, the Keystone State, and the Wolverine State.4

II. Factual Background and Findings

Roy Boyett, a former marine engineer, died of malignant mesothelioma on August 23, 1990. He had been diagnosed with defuse malignant mesothelioma on or about July 6, 1990. The parties stipulated that Boyett's exposure to asbestos while a merchant marine was a significant contributing factor to his contraction of the disease.

At the time of his death, Boyett was sixty-five years old, and was employed as a marine surveyor, earning approximately $70,000 per year. He expected to work several more years in this capacity.

Between 1955 and 1967, Boyett served in the engine department of the Hoosier State for 2,159 days, the Keystone State for 422 days, and the Wolverine State for 507 days. These three ships were built for the United States Maritime Commission in 1945 at Sun Shipbuilding and Dry Dock Company in Pennsylvania. The ships were built according to United States government specifications, and, after States Marine Lines purchased the ships, they were operated in conformity with United States Coast Guard regulations.5

The insulation for these ships was provided by Philadelphia Asbestos Company (Pacor), a distributor of 85% Magnesia products manufactured by Ehret. Ehret's insulation products contained asbestos. Although the original insulation aboard the three ships was repaired from time to time, most of the Ehret insulation installed during construction remained in place throughout Boyett's service.

The three ships were owned by States Marine Lines for the entirety of Boyett's marine career. During normal shipping operations, asbestos from pipe-covering, block insulation, and cement was released into the ambient air of the ships. Testimony from numerous witnesses at trial, including the videotaped deposition testimony of Boyett, established that Boyett had been exposed to asbestos daily during his employment on these three ships.

Manufacturers of asbestos-containing insulation products began placing warnings on packages of insulation sold to the shipping industry in about 1965. The warnings stated that use of the insulation products may be hazardous to the user's health. Keene gave no other warnings about the hazards of asbestos exposure to the Shipowners or maritime trade associations. There was extensive testimony by members of the shipping industry, including naval architect John Boylston and former Marine Engineers Beneficial Association president Jesse Mayo Calhoon (by deposition), that the industry did not learn about the hazards of asbestos exposure to crew members until approximately 1978, years after Boyett's exposure to asbestos on board the three ships.

In the absence of any convincing evidence that the Shipowners were aware of the dangers of asbestos-containing insulation materials to crew members, or that the Shipowners should have been aware of the dangers, it is found that the Shipowners were not negligent in any respect, and that the Shipowners' actions or inactions were not the proximate cause of Boyett's injuries.

III. Analysis
A. Offset of Settlement Amounts from Plaintiff's Award

Plaintiff brought suit against Keene on theories of strict liability in tort for defective products and negligent failure to warn of the dangers of asbestos-containing insulation products. The jury verdict against Keene provided compensation for Boyett's pain and suffering; his lost wages up until the time of his death; and his medical and funeral expenses. Plaintiff's settlement with the Shipowners released multiple claims in admiralty for loss of society; punitive damages; Boyett's pain and suffering, medical expenses and funeral expenses; maintenance and cure; and plaintiff's loss of support.6

Because Boyett was a seaman, plaintiff's claims arose pursuant to maritime law. See East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (recognizing products liability concepts as part of general maritime law). Therefore, the issues of offset and indemnification are governed by general maritime law. Hardy v. Gulf Oil Corp., 949 F.2d 826, 830 n. 7 (5th Cir.1992); Marathon Pipe Line Co. v. Drilling Rig ROWAN/ODESSA, 761 F.2d 229, 235 (5th Cir.1985).

The general principle in cases where offset is claimed is that a plaintiff is entitled to only one recovery for the injuries suffered. See Marcus, Stowell & Beye Gov't Sec., Inc. v. Jefferson Inv. Corp., 797 F.2d 227, 233 (5th Cir.1986). Where the jury award represents the entire amount of plaintiff's loss, a reduction must be made for the amounts received from the settling defendant. Strachan Shipping Co. v. Nash, 782 F.2d 513, 520 (5th Cir.1986). In other words, amounts recovered from a settling defendant should be applied as a credit against the amount recovered by the plaintiff from a non-settling defendant, provided that both the settlement and the judgment represent common damages. Howard v. General Cable Corp., 674 F.2d 351, 358 (5th Cir.1982). See U.S. Industries, Inc. v. Touche Ross & Co., 854 F.2d 1223, 1236 (10th Cir.1988). Thus, this so-called "one satisfaction" rule applies only where the defendants' conduct resulted in a single injury. Id. at 1236; Howard, 674 F.2d at 358.

By contrast, where two or more defendants are responsible for separate injuries, an amount received in settlement from one defendant for one of the injuries may not be used to reduce the liability of the other defendant for the other injuries. See Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1508 (11th Cir.1985) (amount received by spouse for loss of consortium should not be offset against jury verdict, because the damages sustained by a spouse are exclusive of those suffered by her husband); Goad v. Macon County, Tenn., 730 F.Supp. 1425, 1432 (M.D.Tenn.1989) (where claims against the settling defendants were separate and distinct from those against the trial defendant, the losing trial defendant is not entitled to a set-off); Hoffman v. McNamara, 688 F.Supp. 830, 831 (D.Conn.1988) (defendant does not get a setoff where claims against settling joint tortfeasors were separate and distinct from claims against defendant). The tortfeasor who chooses to go to trial can be held liable for no more, and no less, than its own share of the judgment. It remains liable for the full amount of damages its own negligence caused. Diggs v. Hood, 772 F.2d 190, 196 (5th Cir.1985).

There has been no showing that the amounts recovered in settlement from the Shipowners represented compensation for damages which were common with the damages imposed by the jury against Keene. Plaintiff's complaint against the Shipowners demanded relief for the injuries of both plaintiff and Boyett under general maritime law and the Jones Act, and asserted a claim for punitive damages. The settlement agreement provided that the Shipowners were released from any and all liability under the Jones Act, maritime law, unseaworthiness, and negligence. Plaintiff received compensation under the settlement agreement for maintenance and cure, lost wages, loss of support, loss of society, medical expenses, and any and all other damages. Plaintiff recovered damages from Keene only for Boyett's pain and suffering, his lost wages up to the time of his death, and his medical and funeral expenses. Keene has not been required to requite Boyett's estate for maintenance and cure, nor has it been required to compensate plaintiff for her loss of support, loss of society, or punitive damages.

The burden of proving that the settlement and the judgment represented common damages, such that the plaintiff would receive a double recovery if no offset were allowed, rests on the party seeking a credit; that is, Keene must prove that the plaintiff has been made whole by the settlement. See Howard v. General Cable Corp., 674 F.2d 351, 358 (5th Cir.1982); Cates v. United States, 451 F.2d 411, 417-18 (5th Cir.1971). See also Phillips v. Liberty Mut. Ins. Co., 813 F.2d 1173, 1176 (11th Cir.1987). But see Touche Ross, 854 F.2d at 1235, 1261-62 (once the defendant proves that plaintiff settled claims for which the defendant was found liable at trial, and that there may be a double recovery, the burden shifts to the plaintiff to prove that, under the terms of the agreement, the settlement did not represent common damages).

A seaman may well have multiple causes of action arising out of the same injury-causing event: He may have an action against his employer for maintenance and cure, which is quasi-contractual and arises

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