Dempster v. Lamorak Ins. Co.
| Decision Date | 26 August 2020 |
| Docket Number | CIVIL ACTION CASE NO. 20-95 SECTION: "G"(1) |
| Parties | CALLEN DEMPSTER, et al. v. LAMORAK INSURANCE CO., et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is Defendants Huntington Ingalls Incorporated (f/k/a Northrop Grumman Shipbuilding, Inc., f/k/a Northrop Grumman Ship Systems, Inc., f/k/a Avondale Industries, Inc., and f/k/a Avondale Shipyards, Inc.) ("Avondale"), Albert L. Bossier, Jr. ("Bossier") and Lamorak Insurance Company's ("Lamorak")1 (collectively, the "Avondale Interests") "Motion for Partial Summary Judgment Seeking Dismissal of All Non-Intentional Tort Wrongful Death Claims."2 Defendant Travelers Indemnity Company ("Travelers") joins the motion.3 In this litigation, Plaintiffs Tanna Faye Dempster, Steven Louis Dempster, Janet Dempster Martinez, Marla Dempster Loupe, Callen Dempster, Jr., Annette Dempster Glad, and Barnett Dempster's (collectively, "Plaintiffs") allege that Decedent Callen L. Dempster ("Decedent") was exposed to asbestos and asbestos-containing products that were designed, manufactured, sold, and/or supplied by a number of Defendant companies while Decedent was employed by Avondale.4 In the instantmotion, the Avondale Interests argue that Plaintiffs' non-intentional tort wrongful death claims should be dismissed because such claims are barred by the Longshore and Harbor Workers' Compensation Act ("LHWCA").5 Having considered the motion, the memoranda in support and in opposition, the record, and the applicable law, the Court grants the motion.
In this litigation, Plaintiffs allege that Decedent was employed by Avondale from 1962 to 1994.6 During that time, Plaintiffs aver that Decedent was exposed to asbestos and asbestos-containing products in various locations and work sites, resulting in Decedent breathing in asbestos fibers and later developing asbestos-related cancer.7 Plaintiffs assert strict liability and negligence claims against various Defendants.8 Specifically, Plaintiffs allege that:
All asbestos companies had care, custody, and control of the asbestos, which asbestos was defective and which presented an unreasonable risk of harm, which asbestos resulted in the injury of [Decedent] and for which these defendants are liable under Louisiana law. However, with regard to Avondale and its executive officers, they are liable because they failed to properly handle and control the asbestos which was in their care, custody, and control. Petitioners are not alleging that Avondale and its executive officers are liable for the mere use of asbestos; rather, Avondale and its executive officers are liable for the misuse of asbestos, including but not limited to the failure to warn of the hazardous nature and dangersof asbestos and for the failure to take and implement reasonably safe and industrial hygiene measures, failure to train, and failure to adopt safety procedures for the safe installation and removal of asbestos.9
Decedent filed a "Petition for Damages" in the Civil District Court for the Parish of Orleans, State of Louisiana, on March 14, 2018.10 Defendants Huntington Ingalls Incorporated, Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company (the "Removing Parties") removed the case to the United States District Court for the Eastern District of Louisiana for the first time on June 21, 2018.11 In the first notice of removal, the Removing Parties alleged that removal was proper because this is an action "for or relating to conduct under color of federal office commenced in a state court against persons acting under one or more federal officers within the meaning of 28 U.S.C. § 1442(a)(1)."12
On January 7, 2019, this Court remanded the case to the Civil District Court for the Parish of Orleans.13 The Court found that Defendants presented no evidence that Decedent came into contact with asbestos aboard a government vessel, and thus, no federal interest was implicated.14 Alternatively, even accepting Defendants' argument that Decedent came into contact with asbestos aboard a government vessel as true, the Court did not find that the necessary causal nexus existed between Federal Government action and Decedent's claims.15 This determination was based onthe fact that Decedent brought negligence claims, rather than strict liability claims, against the Removing Parties.16 Defendants did not appeal the January 7, 2019 Order.
Decedent passed away on November 24, 2018, and a First Supplemental and Amending Petition for Damages was filed in state court substituting Decedent's heirs as Plaintiffs on January 17, 2019.17 Trial was scheduled to begin before the state trial court on January 13, 2020.18 The amended petition does not purport to assert any strict liability claims against Avondale.19
On January 9, 2020, Avondale removed the case to the United States District Court for the Eastern District of Louisiana for a second time.20 In the second notice of removal, Avondale once again alleged that removal is proper because this is an action "for or relating to conduct under color of federal office commenced in a state court against persons acting under one or more federal officers within the meaning of 28 U.S.C. § 1442(a)(1)."21 In the second notice of removal, Avondale contended that the jury interrogatories, jury charges, and Pre-Trial Order filed by Plaintiffs in state court directly contradicted Decedent's prior representation in federal court that he was not asserting strict liability claims against Avondale.22 On January 10, 2020, Plaintiffs filed an "Emergency Motion to Remand"23 and an "Ex Parte Motion for Expedited Hearing and forEmergency Ruling."24
On January 28, 2020, the Court denied the motion to remand, finding that this case was properly removed to this Court under the federal officer removal statute.25 Specifically, the Court found that the notice of removal was timely filed and Plaintiffs' pretrial filings constituted a proper basis for the second removal.26 Additionally, the Court found that Avondale met the three-part test for federal officer removal, namely, that (1) Avondale is a person within the meaning of the statute, (2) Avondale acted pursuant to a federal officer's directions and a causal nexus exists between its actions under color of federal office and plaintiffs' claims, and (3) Avondale has a colorable federal defense to Plaintiffs' claims under the government contractor immunity defense.27
On February 18, 2020, the Avondale Interests filed the instant "Motion for Partial Summary Judgment Seeking Dismissal of All Non-Intentional Tort Wrongful Death Claims."28 On March 3, 2020, Plaintiffs filed an opposition to the instant motion.29 The Avondale Interests, with leave of Court, filed a reply brief in further support of the motion on March 16, 2020.30 On March 16, 2020, Travelers joined the motion.31
In the instant motion, the Avondale Interests argue that Plaintiffs' non-intentional tort wrongful death claims should be dismissed because such claims are barred by the LHWCA's exclusive remedy provision.32 The Avondale Interests note that an identical motion was filed while the case was pending in state court, but the state court judge did not rule on the motion before the case was removed.33
The Avondale Interests note that in 1989, Section 1035.2 was added to the Louisiana Workers' Compensation Act, providing that "[n]o compensation shall be payable with respect to the disability or death of any employee covered by the . . . Longshore and Harbor Worker's Compensation Act."34 The Avondale Interests argue that Decedent was a covered employee under the LHWCA because his employment at Avondale met both the situs and status test for LHWCA coverage.35 The Avondale Interests contend that the LHWCA precludes Plaintiffs' wrongful death non-intentional tort claims as a matter of law.36 Furthermore, the Avondale Interests assert that the tort immunity granted by the LHWCA extends to co-employees and their insurers.37 Therefore, the Avondale Interests assert they are entitled to judgment as a matter of law, dismissing Plaintiffs'wrongful death non-intentional tort claims.38
In the opposition memorandum, Plaintiffs argue that the LHWCA does not bar Plaintiffs' claims.39 Plaintiffs point out that they are alleging that some of Decedent exposure to asbestos occurred while he was not employed at Avondale.40 For example, Plaintiffs argue that Decedent was exposed to asbestos while riding home from work with others who had contaminated clothing and from scrap materials and cloth that Avondale allowed workers to take home.41 Plaintiffs contend that Decedent testified that the asbestos materials were brought home from Avondale.42 Plaintiffs assert that the claims involving exposure to asbestos while traveling home from work and from materials Decedent brought home do not fall under the LHWCA because these exposures do not "aris[e] out of and in the course of employment."43
Next, Plaintiffs argue that the LHWCA does not bar their intentional tort claims.44 Plaintiffs assert they have elected Louisiana state remedies, and the LHWCA does not preempt their state law claims.45 Thus, Plaintiffs contend the LHWCA does not bar their state law intentional tort claims against Avondale and its executive officers during the time period that Decedent wasdirectly employed by Avondale.46 Furthermore, Plaintiffs contend that summary judgment is not appropriate on an intentional tort claim.47 If Plaintiffs are able to prove an intentional tort, they argue the LHWCA does not apply and Plaintiffs may assert any and all causes of action allowed under Louisiana law.48
In further support of the instant motion, the Avondale Interests assert that Plaintiffs' arguments...
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