Cortez v. Lamorak Ins. Co.

• Decision Date: 04 April 2022
• Docket Number: CIVIL ACTION NO. 20-2389
• Citation: 597 F.Supp.3d 959
• Parties: Callen J. CORTEZ v. LAMORAK INSURANCE COMPANY, et al.
• Court: U.S. District Court — Eastern District of Louisiana

597 F.Supp.3d 959

Callen J. CORTEZ

v.LAMORAK INSURANCE COMPANY, et al.

CIVIL ACTION NO. 20-2389

United States District Court, E.D. Louisiana.

Signed April 4, 2022

SECTION "R" (1)

ORDER AND REASONS

SARAH S. VANCE, UNITED STATES DISTRICT JUDGE

Before the Court is defendant Huntington Ingalls, Inc.’s ("Avondale") motion for summary judgment, seeking dismissal of plaintiff's claims against it.¹ The motion is opposed by defendants General Electric Co., Foster Wheeler LLC, and ViacomCBS, Inc.;² Union Carbide Corp. and BayerCropScience, Inc.;³ and plaintiff Callen Cortez (collectively, the "opposing parties").⁴

For the following reasons, the Court grants the motion in part, and denies the motion in part.

I. BACKGROUND

This is an asbestos exposure case. Plaintiff Callen Cortez alleges that he contracted mesothelioma

as a result of exposure to asbestos during his employment with various companies, including Avondale,⁵ as well as take-home exposure resulting from his father's⁶ and brothers’ work with various companies, including Avondale.⁷

Plaintiff lived in his family home in Kraemer, Louisiana, starting from his birth in 1951, until he married and moved out in May of 1972.⁸ Plaintiff's brother, Daniel Cortez, also lived in the home. Daniel began working at the Avondale Shipyards on August 29, 1967,⁹ and remained living with plaintiff at their family home until Daniel married and moved out in July of 1968.¹⁰ Daniel testified that, during these first ten to eleven months at Avondale, he worked with asbestos cloth and other insulation materials, and that fibers released from cutting and tearing the cloth got onto his work clothes.¹¹ He further testified that, after work each day, he would come home, hang up his clothes, and, with plaintiff's help, beat the fibers off his clothes.¹² Avondale's expert, Dr. Brent Staggs, opined at his deposition that asbestos taken home on Daniel Cortez's clothes significantly contributed to plaintiff's development of mesothelioma

.¹³

On March 6, 1969, plaintiff began working for Avondale.¹⁴ He worked as a welder and tacker helper, primarily at Avondale's Westwego Yard, until May 31, 1974.¹⁵ Plaintiff testified that, throughout his employment with Avondale, he used asbestos cloth to protect from burns and hot sparks.¹⁶

Plaintiff was diagnosed with mesothelioma

on June 2, 2020.¹⁷ On July 1, 2020, plaintiff filed suit in the Civil District Court for the Parish of Orleans against Avondale and approximately thirty-four other defendants, including former employers, manufacturers, and insurance companies.¹⁸ On August 31, 2020, the case was removed to federal court.¹⁹

On February 9, 2022, Avondale moved for summary judgment.²⁰ Avondale contends that plaintiff's claims against it should be dismissed because they are preempted by the Longshore and Harbor Workers’ Compensation Act ("LHWCA"). It seeks dismissal of plaintiff's claims arising out of his own employment with Avondale, as well as his claims arising out of alleged exposure to asbestos from clothing that his brother brought home from Avondale.²¹ Avondale also contends that plaintiff's intentional-tort claim must be dismissed, because there is no intentional-tort exception to the LHWCA, and, even if there were, plaintiff has failed to create an issue of material fact on such a claim.²²

Multiple parties oppose Avondale's motion. Specifically, codefendants General Electric Co., Foster Wheeler LLC, ViacomCBS, Inc.,²³ Union Carbide Corp., and BayerCropScience, Inc.²⁴ oppose the motion. Plaintiff also opposes the motion.²⁵

The opposing parties contend that plaintiff's claims against Avondale are not preempted by the LHWCA because his injuries fall within the "twilight zone" of concurrent federal and state jurisdiction over workers’ compensation claims. They also argue that, even if the LHWCA preempts plaintiff's claims against Avondale arising out of his employment with Avondale, the statute does not preempt his "third party" claims arising out of Daniel Cortez's take-home asbestos. Finally, the opposing parties contend that the LHWCA has an intentional-tort exception, and that material facts remain in dispute as to such a claim.

The Court considers the parties’ arguments below.

II. LEGAL STANDARD

Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). "When assessing whether a dispute to any material fact exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. , 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp. , 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed. 1983) ); see also Little , 37 F.3d at 1075. "No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." EEOC v. Simbaki, Ltd. , 767 F.3d 475, 481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’ " Int'l Shortstop, Inc. v. Rally's, Inc. , 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease , 755 F. Supp. 948, 951 (D. Colo. 1991) ). "[T]he nonmoving party can defeat the motion" by either countering with evidence sufficient to demonstrate the "existence of a genuine dispute of material fact," or by "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex , 477 U.S. at 325, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324, 106 S.Ct. 2548. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for resolution. See, e.g. , id. ; Little , 37 F.3d at 1075 (" Rule 56 ‘mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.’ " (quoting Celotex , 477 U.S. at 322, 106 S.Ct. 2548 )).

III. DISCUSSION

Avondale's motion presents three distinct questions: (1) whether plaintiff's tort claims against Avondale as his employer are preempted by the LHWCA; (2) whether plaintiff's tort claims against Avondale as his brother's employer, i.e. , as the alleged source of take-home exposure before plaintiff's work for Avondale, are preempted by the LHWCA; and (3) whether plaintiff may maintain his intentional-tort claim against Avondale.

The first question, whether the LHWCA preempts plaintiff's employee-employer claims, has been answered in the affirmative in multiple cases before this Court and other sections of this Court. See Barrosse v. Huntington Ingalls, Inc. , 563 F.Supp.3d 541 (E.D. La. 2021) ; Krutz v. Huntingon Ingalls, Inc. , No. 20-1722, 2021 WL 5893981 (E.D. La. Apr. 22, 2021) ; Hulin v. Huntington Ingalls, Inc. , No. 20-924, 2020 WL 6059645 (E.D. La. Oct. 14, 2020) ; Dempster v. Lamorak Ins. Co. , No. 20-95, 2020 WL 5071115 (E.D. La. Aug. 26, 2020) ; Cobb v. Sipco Servs. & Marine, Inc. , No. 95-2131, 1997 WL 159491 (E.D. La. Mar. 27, 1997). The Court therefore addresses this question first, and, in so doing, largely reiterates its prior analyses on this issue. The Court then proceeds to the second and third issues, which have not been addressed as extensively.

A. Preemption of Plaintiff's Claims Against Avondale Arising out of His Employment

The LHWCA is a federal workers’ compensation statute providing covered maritime workers with "medical, disability, and survivor benefits for work-related injuries and death." MMR Constructors, Inc. v. Dir., Office of Workers’ Comp. Programs , 954 F.3d 259, 262 (5th Cir. 2020) (citation and internal quotation marks omitted). Before 1972, the statute covered only workers on "navigable waters of the United States (including any dry dock)." Id. (citing 33 U.S.C. § 903(a) (pre-1972)). But, in 1972, Congress amended the Act and "extend[ed] the LHWCA landward." Sun Ship, Inc. v. Pennsylvania , 447 U.S. 715, 719, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980).

1. Applicable Version of the LHWCA

Plaintiff argues that the pre-1972 version of the law applies to this dispute,²⁶ while Avondale contends that the post-1972 Act applies.²⁷ Specifically, Avondale argues that the Court must apply the Act as it existed when Cortez's disease manifested, i.e. , in 2020, to determine whether the alleged injuries are covered.²⁸ Plaintiff argues that the date of his exposure governs which version applies.²⁹

Courts use the "date of injury" to determine which version of the LHWCA applies. Castorina v. Lykes Bros. S.S. Co. , 758 F.2d 1025, 1029 (5th Cir. 1985). In the context of...