Goldsby v. Celotex Corp.

• Citation: 591 F. Supp. 615
• Decision Date: 08 August 1984
• Docket Number: No. 83-1376-CV-W-1.,83-1376-CV-W-1.
• Parties: Jo Ann GOLDSBY, Plaintiff, v. The CELOTEX CORPORATION, Owens-Illinois, Inc.; Raymark Industries, Inc.; Eagle-Picher Industries, Inc.; Fibreboard Corporation; Keene Corporation; GAF Corporation; Nicolet, Inc.; H.K. Porter Company, Inc., Defendants.
• Court: U.S. District Court — Western District of Missouri

591 F. Supp. 615

Jo Ann GOLDSBY, Plaintiff, v. The CELOTEX CORPORATION, Owens-Illinois, Inc.; Raymark Industries, Inc.; Eagle-Picher Industries, Inc.; Fibreboard Corporation; Keene Corporation; GAF Corporation; Nicolet, Inc.; H.K. Porter Company, Inc., Defendants.

No. 83-1376-CV-W-1.

United States District Court, W.D. Missouri, W.D.

August 8, 1984.

Brent M. Rosenthal, Fredrick M. Baron & Assoc., Dallas, Tex., William H. Pickett, Kansas City, Mo., for plaintiff.

William A. Lynch, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., for defendant Keene Corp.

James Borthwick, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., for defendant Fibreboard.

Theodore J. Furry, Birmingham & Furry, Kansas City, Mo., for defendant Nicolet.

William H. Woodson, Spencer, Fane, Britt & Browne, Kansas City, Mo., for defendant GAF.

Jeff O'Connor, Kansas City, Mo., for defendant Eagle-Picher.

Truman K. Eldridge, Jr., Dietrick, Davis, Dicus, Rowland, Schmitt & Gorman, Kansas City, Mo., for defendant Owens-Illinois.

Kenneth O. Smith, Knipmeyer, McCann, Fish & Smith, Kansas City, Mo., for defendant H.K. Porter Co.

John A. Koepke, Morris, Larson, King, Stamper & Bold, Kansas City, Mo., for defendant Raymark.

Michael J. Jerde, Morrison, Hecker, Curtis, Kuder & Parrish, Overland Park, Kan., for defendant Celotex.

MEMORANDUM AND ORDERS DENYING DEFENDANTS' ALTERNATIVE MOTION TO DISMISS OR FOR SUMMARY JUDGMENT AND DIRECTING FURTHER PROCEEDINGS

JOHN W. OLIVER, Senior District Judge.

I.

This case pends on defendants' joint motion to dismiss or in the alternative for summary judgment. That motion and the suggestions in support and opposition were filed pursuant to Orders entered March 16, 1984 after a discovery conference had been conducted in this case.

Order (2) entered March 16, 1984 reflects counsels' view that separate questions were presented in this case (1) concerning this Court's admiralty jurisdiction, (2) the statute of limitations applicable to this case, and (3) a conflict of laws issue.

Our March 16, 1984 Order therefore approved the parties' agreement that they would agree upon and file a stipulation of facts relating to those questions and another order set forth the time schedule for the filing of the stipulation, for defendant's joint motion, and for suggestions in support and in opposition.

All parties complied with the Orders entered March 16, 1984 in a timely manner. Determination of the pending joint motion has been unfortunately delayed by a breakdown in communications between the Court and its staff. We regret and apologize to counsel for that delay. Defendants' joint motion will be denied for reasons we shall state in some detail. Orders will also be entered in regard to plaintiff's Rule 9(h) admiralty claim identification and directing the parties to agree upon a plan and schedule of discovery.

II.

Defendants' joint motion alleges in paragraph 1 that: (1) the alleged wrongs committed by the defendants did not occur on or over navigable waters and (2) the alleged wrongs do not bear a significant relationship to traditional maritime activity.

Both sides properly recognize that Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) added an additional requirement for invocation of federal admiralty jurisdiction. Any doubt that there must be some relationship with traditional maritime activity for an injury sustained on navigable waters to fall within federal admiralty jurisdiction was not limited to the aviation context presented in Executive Jet was resolved by the Court's 1982 decision in Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982). It is thus clear that the rule of Executive Jet is applicable to all admiralty cases.

The briefs of the parties, however, failed to focus on either the allegations of plaintiff's complaint or on the factual circumstances which have been stipulated in regard to this case. Plaintiff's complaint alleged that: "Throughout the employment of LEO GOLDSBY with the United States Navy, he worked aboard United States Navy vessels, both in dry dock and on the high seas, performing the traditional maritime activities of shipbuilding and ship repair." And the parties have stipulated that:

2. Leo Goldsby entered the Navy on February 1, 1949, and was discharged from service on January 1, 1950.

3. During his service with the Navy, Leo Goldsby was assigned to the U.S.S. Ozbourne, a destroyer, and served as a machinist's mate. Mr. Goldsby testified that his duties included repairing pipes in the boiler room which required cutting through asbestos insulation.

4. During Leo Goldsby's service with the Navy in 1949, the U.S.S. Ozbourne spent approximately 9 months at sea.

5. Mr. Goldsby has testified, and plaintiff alleges in this action, that during this approximately 9 months at sea aboard the U.S.S. Ozbourne, Leo Goldsby was exposed to asbestos insulation and asbestos fibers.

6. During approximately the last 2 months of 1949, Leo Goldsby was stationed on the U.S.S. Ozbourne while it was in dry-dock in Vallejo, California.

7. Mr. Goldsby has testified, and plaintiff alleges in this action, that during this period of drydock, Leo Goldsby was exposed to asbestos insulation and asbestos fibers.

8. At the time of submission of these stipulations the plaintiff's only evidence of exposure of Leo Goldsby to asbestos relates to his service on the U.S.S. Ozbourne in 1949.

It is thus clear that during at least nine of the eleven months of Leo Goldsby's Naval service, he served at sea as a machinist's mate on board the U.S.S. Ozbourne, with duties which included pipe repair in the boiler room that required cutting through asbestos insulation.

Plaintiff, for reasons that are not apparent, relies solely on the Fourth Circuit's decision in White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982). Professor Moore pointed out on page 227, ¶ .3253 of the Supplement to Volume 7A of Moore's Federal Practice, that the reasoning of the Fourth Circuit in White and the reasoning of the Fifth Circuit in Sperry-Rand Corp. v. Radio Corp. of America, 618 F.2d 319 (5th Cir.1980), was expressly rejected by the Ninth Circuit in Owens-Illinois, Inc. v. United States Dist. Court, 698 F.2d 967 (9th Cir.1983), and Keene Corp. v. United States, 700 F.2d 836 (2nd Cir.1983); cases upon which defendants rely.

The Fifth Circuit opinion in Austin v. Unarco Industries, Inc., 705 F.2d 1, 11 (1st Cir.1983), disagreed, at least in part, with the analysis of the cases decided by the Second, Fourth, and Ninth Circuits but concluded for reasons fully stated that "It appears that personal injuries to seamen and others doing seamen's work do fall within the traditional concerns of admiralty law and are claims over which admiralty tort jurisdiction would be proper." Austin, however, held on its facts that admiralty law did not apply to plaintiff's claim in that case for the reason that the ships upon which he worked were out of navigation and that the repair work being accomplished in dry dock required special equipment and skills other than that usually performed by seamen. See also Lowe v. Ingalls Shipbuilding, A Div. of Litton, 723 F.2d 1173 (5th Cir.1984), in which all of the above cases are discussed, in support of the Fifth Circuit's ultimate holding that the plaintiff's complaint in that case failed to establish either admiralty, diversity, or federal question jurisdiction.

Vaughan v. Johns-Manville Corp., 662 F.2d 251 (4th Cir.1981), a case cited by neither side, is the closest case on its facts to the stipulated facts in the case at bar. The Fourth Circuit noted in that case that:

"Vaughan had served as a boiler tender in the United States Navy during his 30-year career, and throughout most of his military career he had installed and removed asbestos insulation materials manufactured and distributed as maritime asbestos products." Id. at 252. The Court also stated that, on the facts, that Vaughan "from 1969 until his retirement in September, 1974, ... continued to be exposed to asbestos materials in the performance of his naval duties while stationed at the Norfolk Naval Shipyard in Portsmouth, Virginia." Id.

Judge Widener's concurring opinion in both White and Vaughan, which was decided the same day that White was decided, took note of the not uncomplicated question presented in a case, such as this case, where it is apparent that admiralty jurisdiction is established in regard to part but not all of a particular plaintiff's claim. In White for example, Judge Widener noted that plaintiffs' claim that at least 90% and as much as 97% of their exposure to the manufacturers' products occurred on navigable waters. He accordingly based his concurrence with the majority's admiralty jurisdiction conclusion for the reason that: "Given this overwhelming predominance of exposure arising in the proper maritime situs, and especially taking into account that no issue has been made of the extent of the exposure on navigable waters, I would agree that the entirety of the plaintiffs' tort claims are properly cognizable in admiralty." White, supra, 662 F.2d at 242. In Vaughan, however, Judge Widener would have remanded the case to the district court for "a more discriminating inquiry into the jurisdiction of district court" for the reason that "at least the last five years of employment of the plaintiff's decedent occurred on land" rather than at sea. Vaughan, supra, 662 F.2d at 253.

Owens-Illinois, supra, 698 F.2d at 971, a case upon which defendants place great reliance, noted that in that case, "The record is clear that certain of the asbestos exposures allegedly responsible for plaintiff's injuries could not be brought before the district court in admiralty" and that "diversity of citizenship is the sole basis for federal jurisdiction over...