In re All Asbestos Cases

• Decision Date: 23 November 1984
• Docket Number: Civ. No. 79-0382
• Citation: 603 F. Supp. 599
• Parties: In re ALL ASBESTOS CASES.
• Court: U.S. District Court — District of Hawaii

603 F. Supp. 599

In re ALL ASBESTOS CASES.

Civ. No. 79-0382, et al.

United States District Court, D. Hawaii.

October 10, 1984.

Amended on Denial of Reconsideration November 23, 1984.

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Gary O. Galiher, Stanford H. Masui, L. Richard DeRobertis, Gary Galiher & Associates, Honolulu, Hawaii, for plaintiffs.

Paul Devens, Paula Devens, James H.Q. Lee, Ikazaki, Devens, Lo, Youth & Nakano, Honolulu, Hawaii, for defendant and third-party plaintiff Raymark Industries, Inc., Successor to Raybestos-Manhattan, Inc.

William S. Hunt, Lawrence C. Foster, Paul, Johnson & Alston, Honolulu, Hawaii, Jeffrey Silberfeld, Charles J. Israel, Robert Rizzo, Rivkin, Leff, Sherman & Radler, Garden City, N.Y., for defendant and third-party plaintiff Pittsburgh Corning Corp.

Michael F. O'Connor, Brian K. Yomono, Ezra, O'Connor & Moon, Honolulu, Hawaii, William J. Spriggs, Joe G. Hollingsworth, Donald W. Fowler, Edward M. Fogarty, Spriggs, Bode & Hollingsworth, Washington, D.C., for defendant and third-party plaintiff Eagle-Picher Industries, Inc.

Mark Bernstein, Honolulu, Hawaii, for defendant and third-party plaintiff Flexitallic Gasket Co., Inc.

Richard K. Willard, Acting Asst. Atty. Gen., Peter A. Nowinski, Sp. Litigation Counsel, Torts Branch, Harold Engel, Asst. Director, Torts Branch, Paul M. Honigberg, Trial Atty., Torts Branch, David Fishback, Trial Atty., Torts Branch, U.S. Dept. of Justice, Washington, D.C., Daniel A. Bent, U.S. Atty., Theodore G. Meeker, Sp. Asst. U.S. Atty., Honolulu, Hawaii, for third-party defendant U.S.

MEMORANDUM DECISION AND ORDER

TASHIMA, District Judge, Sitting by Designation.

This is the motion of third-party defendant United States to dismiss the third-party complaints. The first of these was filed by defendant Raybestos-Manhattan, Inc., in December 1981. Similar complaints were later filed by defendants Pittsburgh Corning Corporation, Eagle-Picher Industries, Inc., and Flexitallic Gasket Company, Inc. (collectively "third-party plaintiffs" or "manufacturers"). The government's motion is supported by plaintiffs.

The third-party complaints derive from the approximately 90 consolidated actions in this district, brought primarily by more than 100 present and former government employees, or their survivors, against third-party plaintiffs and approximately 35 other manufacturers of products containing asbestos. Plaintiffs allege that they have developed asbestos-related diseases as a result of their exposure to asbestos-containing products used at the government facilities where most plaintiffs worked.¹ Plaintiffs allege that the manufacturers sold the products to the United States for use at federal facilities, that the manufacturers were negligent in designing and producing these products, that the products were defective and unsafe, and that the manufacturers failed to give adequate warnings of known or knowable dangers and/or failed to find safe substitutes.

The third-party complaints against the United States seek contribution and/or indemnity based on tort, contract and, in some cases, admiralty law theories. Jurisdiction is premised on the Federal Tort Claims Act, 28 U.S.C. §§ 1346 & 2671 et seq. ("FTCA"), the Tucker Act, 28 U.S.C. § 1346(a)(2), the Suits in Admiralty Act, 46 U.S.C. § 741 et seq., and the Public Vessels Act, 46 U.S.C. § 781 et seq.

Although the United States has moved, in the alternative, for summary judgment, it has submitted no evidentiary material in support of its motion. Therefore, the motion will be considered exclusively under F.R.Civ.P. 12(b). As explained below, the motion will be granted in part and denied in part.

I. FEDERAL TORT CLAIMS ACT

The manufacturers assert that the Court has subject matter jurisdiction under the FTCA over their third-party tort claims against the United States for indemnification and contribution. Under that act, the government is liable "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b).² It is undisputed that the acts and omissions complained of occurred in Hawaii. Thus, the applicable substantive law is that which the state courts of Hawaii would apply in an analogous case involving private parties. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962).³

A. Longshoremen's and Harbor Workers' Compensation Act

All parties, save one, agree that the applicable substantive law with respect to potential liability to those plaintiffs who were or are shipyard workers at Pearl Harbor is the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq.⁴ 33 U.S.C. § 903 provides for compensation under the LHWCA "in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States." 33 U.S.C. § 902 defines an "employee" covered under the Act as

any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor worker, including a ship repairman, shipbuilder and shipbreaker

and an "employer" covered under the Act as

an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel).

It is not disputed that these definitions encompass employment at Pearl Harbor.

Although in Hawaii, private employees normally are covered for work-related injuries by the Hawaii Workers' Compensation Law, Haw.Rev.Stat. § 386-1 et seq. (the "Hawaii Law"), the Hawaii Law by its own terms applies only "to employees in maritime employment and their employers not otherwise covered by the laws of the United States." Id. § 386-7 (emphasis added.) Thus, Hawaii courts would apply the LHWCA in respect to those employees covered by that Act, irrespective of the Hawaii Law, and would be bound to apply federal law to determine the merits of claims under the LHWCA. Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 166 n. 13, 101 S.Ct. 1614, 1621 n. 13, 68 L.Ed.2d 1 (1981) (Congress anticipated that questions arising in LHWCA cases "shall be determined as a matter of federal law"); Johnson v. A/S Ivarans Rederi, 613 F.2d 334 (1st Cir.1980), cert. dismissed, 449 U.S. 1135, 101 S.Ct. 959, 67 L.Ed.2d 325 (1981).

The United States notes that as a private maritime employer, liability to its employees would be governed by the exclusivity provision of the LHWCA. That section provides:

The liability of an employer ... shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death....

33 U.S.C. § 905(a). The government asserts that § 905(a) also bars third-party suits against it under the LHWCA. The difficulty with accepting this position is that it runs counter to the reasoning in Lockheed Aircraft Corporation v. United States, 460 U.S. 190, 103 S.Ct. 1033, 74 L.Ed.2d 911, that exclusivity provisions, such as those under FECA and LHWCA, are not concerned with the rights of unrelated third parties who do not benefit from the "quid pro quo" compromise that these workers' compensation systems embody. Indeed, in its analysis of the exclusivity provision of FECA, the Court analogized to the LHWCA: "This compromise embodied in the FECA exclusivity provision is essentially the same as that found, for example, in the Longshoremen's and Harbor Workers' Compensation Act...." Lockheed, 103 S.Ct. at 1036. On the question of legislative intent in enacting the LHWCA's exclusivity provision, the Court paraphrased its earlier decision in Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597, 601, 83 S.Ct. 926, 929, 10 L.Ed.2d 1 (1963):

There is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of tort law affecting the mutual rights and liabilities of private parties in indemnity cases.

Lockheed, 103 S.Ct. at 1037.

It is thus apparent that the Court reasoned, albeit in dicta, that the LHWCA's exclusivity provision, like that of FECA, does not preclude third-party claims, and that the availability of such claims is governed by the underlying law of contribution and indemnity.⁵ We proceed to an examination of the underlying substantive law.

1. Third-Party Claims for Contribution

(a) Negligence as vessel owner

One basis of third-party liability for contribution is provided by the LHWCA. Recently, the Supreme Court held that, under 33 U.S.C. § 905(b), as amended,⁶ an LHWCA employee who is injured by the negligence of a vessel owner-employer may receive compensation under the Act and sue the employer in its capacity as vessel owner for negligence. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983).⁷ The cases of many of the plaintiffs employed at Pearl Harbor involve alleged asbestos-related injuries which occurred on ships owned by the United States.

Claims for vessel owner negligence under § 905 were delineated in Scindia, where the Court held that a vessel owner may be liable in tort for injury to an LHWCA employee if the vessel owner (1) fails to warn the repairman's employer of a hidden danger that is known, or should have been known in the exercise of reasonable care, 451 U.S. at 167, 101 S.Ct. at 1622; (2) actively involves itself in repair work and negligently causes injury, id.; or (3) fails to intervene upon discovering a dangerous...