IN RE ALL MAINE ASBESTOS LITIGATION (BIW CASES)

• Court: U.S. District Court — District of Maine
• Writing for the Court: Peter L. Murray, Thomas C. Newman, Portland, Me., for Amchem Products, Inc
• Citation: IN RE ALL MAINE ASBESTOS LITIGATION (BIW CASES), 589 F.Supp. 1563 (D. Me. 1984)
• Decision Date: 05 July 1984
• Parties: In re ALL MAINE ASBESTOS LITIGATION (BIW CASES).

589 F. Supp. 1563

In re ALL MAINE ASBESTOS LITIGATION (BIW CASES).

United States District Court, D. Maine.

July 5, 1984.

G. William Higbee, Brunswick, Me., Thomas W. Henderson, Pittsburgh, Pa., William A. Mulvey, Jr., James G. Noucas, Jr., Mark F. Sullivan, Portsmouth, N.H., Lawrence C. Winger, Portland, Me., Melvin I. Friedman, Kreindler & Kreindler, New York City, Dan W. Thornhill, Kittery, Me., Ira A. Levy, P.C., Newark, N.J., Michael P. Thornton, Boston, Mass., Donald G. Lowry, Lowry & Platt, Portland, Me., for plaintiffs.

Peter L. Murray, Thomas C. Newman, Portland, Me., for Amchem Products, Inc.

Harrison L. Richardson, Jeffrey Thaler, Thomas Getchell, Portland, Me., for Armstrong World.

M. Roberts Hunt, Glenn Robinson, Portland, Me., for Celotex Corp.

C. Alan Beagle, Portland, Me., for Combustion Engineering.

John R. Linnell, Auburn, Me., for Eagle-Picher Industries.

Thomas Schulten, Portland, Me., for Eastern Refractories.

U. Charles Remmel, Portland, Me., for Fibreboard Corp.

Jack H. Simmons, Lewiston, Me., for Forty-Eight Insulations.

Jotham D. Pierce, Jr., Daniel Emery, Portland, Me., for G.A.F. Corp.

Theodore H. Kurtz, South Paris, Me., for Congoleum.

Frederick C. Moore, Portland, Me., for Cummings Insulation and Claremont Co., Inc.

Arthur A. Cerullo, Portland, Me., for National Gypsum.

John J. Flaherty, Christopher D. Nyhan, Jonathan S. Piper, Portland, Me., for Nicolet, Inc.

Nicholas S. Nadzo, John Montgomery, Portland, Me., for Owens-Corning Fiberglas.

George F. Burns, Portland, Me., for Garlock, Inc.

Phillip D. Buckley, Bangor, Me., for Johns-Manville.

Thomas F. Monaghan, Kevin G. Libby, Deborah J. Ross, Portland, Me., for Keene Corp.

Charles H. Abbott, Steven Wright, Lewiston, Me., for Southern Textile Co.

Randall E. Smith, Saco, Me., for J.P. Stevens & Co.

Robert F. Hanson, Mark G. Lavoie, Portland, Me., for Bath Iron Works Corp.

Peter J. Rubin, Linda Monica, Portland, Me., for Owens-Illinois.

John A. Mitchell, James G. Goggin, Portland, Me., for Pittsburgh Corning.

Charles H. Abbott, Steven Wright, Lewiston, Me., for H.K. Porter Co.

Thomas R. McNaboe, Mark G. Furey, Portland, Me., for Raymark, Inc.

Paula D. Silsby, Asst. U.S. Atty., Portland, Me., Harold J. Engel, Asst. Dir., S. Michael Scadron, Trial Atty. and Joseph B. Cox, Jr., Torts Branch, Civil Div., U.S. Dept. of Justice, Washington, D.C., for United States of America.

Peter W. Culley, Stephen C. Whiting, Portland, Me., for Scott Paper Company & Fels Company & Bendix.

Philip K. Hargesheimer, Roger J. O'Donnell, III, Platz & Thompson, Lewiston, Me., for Flintkote Co.

Robert E. Hirshon, Portland, Me., for Standard Asbestos Mfg.

MEMORANDUM OF OPINION AND ORDER OF THE COURT

GIGNOUX, Senior District Judge.

Presently pending in this Court are approximately fifty actions which have been brought by present and former employees, and the representatives of deceased employees, of Bath Iron Works (BIW), a private shipyard in Bath, Maine, against various manufacturers and suppliers of asbestos-containing products. Plaintiffs seek recovery of compensatory and punitive damages for injuries the employees allegedly sustained from exposure to defendants' products during the course of their employment at BIW. The complaints assert causes of action based on negligence, strict liability, and breach of express and implied warranties. Jurisdiction is predicated upon diversity of citizenship. 28 U.S.C. § 1332(a); Austin v. Unarco Industries, Inc., 705 F.2d 1, 3 (1st Cir.), cert. dismissed, ___ U.S. ___, 104 S.Ct. 34, 77 L.Ed.2d 1454 (1983).

In addition to denying any liability to the plaintiffs, certain defendants have filed third-party actions against BIW seeking contribution and indemnity. With the Court's approval, a model third-party complaint has been filed in each plaintiff's action. The model third-party complaint contains six counts. In the first four counts, defendants allege that BIW "willfully, wantonly, recklessly and negligently" failed to exercise due care in the discharge of its duty to protect the health and safety of its employees by failing to warn them of the dangers from exposure to asbestos products and by failing to protect them from its dangers. In Count I, defendants seek pro tanto relief, asserting that they are entitled to have any judgment for compensatory damages recovered against them by a plaintiff reduced by the amount of BIW's worker's compensation lien, or, alternatively, that they are entitled to a judgment against BIW in the amount of that lien. Count II seeks contribution or indemnity by BIW for any punitive damages recovered by a plaintiff against defendants. Count III seeks indemnity by BIW to the extent of any judgment recovered by a plaintiff against defendants. Count IV seeks contribution by BIW for the amount of any judgment recovered by a plaintiff against defendants for loss of consortium or consequential or punitive damages. In Count V, defendants allege that BIW's medical care of its employees was negligent and seek contribution and indemnity by BIW on that basis. In Count VI, defendants seek contribution and indemnity by BIW as the owner pro hac vice of the vessels in its shipyard on which the employees worked.

This is the "third round" of an ongoing dispute between defendants and BIW concerning BIW's third-party liability for its employees' asbestos-related injuries. In the "first round," the Court granted BIW's motion for summary judgment and dismissed defendants' third-party claims as barred by the exclusive liability provision of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 905(a). Austin v. Johns-Manville Sales Corp., 508 F.Supp. 313 (D.Me.1981).¹ The "second round" was precipitated by the subsequent holding of the United States Supreme Court in Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 103 S.Ct. 1033, 74 L.Ed.2d 911 (1983), that the exclusive liability provision of the Federal Employees Compensation Act (FECA), 5 U.S.C. § 8116(c), does not bar an indemnity action by an unrelated third party against the United States. Being persuaded that the analysis in Austin was inconsistent with the teaching of Lockheed, this Court granted a motion for reconsideration of its Austin ruling, vacated its prior order, and denied BIW's motion for summary judgment. All Maine Asbestos Litigation (BIW Cases), Bench Ruling (D.Me. Mar. 9, 1984).² At the same time, the Court reserved ruling on BIW's newly-raised defense that it was protected from third-party liability by section 4 of the Maine Workers' Compensation Act (the Maine Act), 39 Me.Rev.Stat.Ann. § 4 (Supp.1983-84). It invited BIW to file an appropriate motion to bring this issue before the Court.

Presently before the Court is BIW's most recent motion for summary judgment, filed April 9, 1984, seeking dismissal of defendants' third-party claims against it as barred by section 4 of the Maine Act. The record before the Court consists of the pleadings and three affidavits filed by BIW in support of its motion. The issues have been comprehensively briefed and argued.

For the reasons to be stated, the Court has concluded that so much of BIW's motion as seeks dismissal of defendants' claims for contribution and indemnity must be granted, but that so much of the motion as seeks dismissal of the claims for pro tanto relief must be denied.

I.

The Court must begin its analysis with the Supreme Court's Lockheed opinion. In Lockheed, the Court held only that "FECA's exclusive liability provision, 5 U.S.C. § 8116(c), does not directly bar a third-party indemnity action against the United States." 460 U.S. 199, 103 S.Ct. at 1038. Relying on its review of the legislative history, it found that "`there is no evidence whatever that Congress was concerned with the rights of unrelated third parties,'" and concluded that section 8116(c) "had been intended to govern only the relationship `between the Government on the one hand and its employees and their representatives or dependents on the other.'" Id. at 195, 103 S.Ct. at 1036 (quoting Weyerhauser S.S. Co. v. United States, 372 U.S. 597, 601, 83 S.Ct. 926, 929, 10 L.Ed.2d 1 (1963)). Thus, contrary to defendants' contention, Lockheed did not affirmatively confer upon Lockheed a substantive indemnity claim against the United States. Indeed, the Court expressly stated that the validity of Lockheed's underlying claim for indemnity was not before it. Id. at 197 n. 8, 103 S.Ct. at 1037 n. 8. Rather, to determine that question, the Court made clear that recourse must be had to the "governing substantive law." Id. at 199, 103 S.Ct. at 1038.

In its March 9, 1984 ruling, this Court held that the Lockheed interpretation of FECA's exclusive liability provision applied with equal force to the "nearly identical" LHWCA provision, 33 U.S.C. § 905(a). See Lockheed, 460 U.S. at 195, 103 S.Ct. at 1037. This Court also concluded that "there is no evidence either in the language of the statute or in the congressional history that Congress addressed itself to, or was in any way concerned with, the rights of non-vessel owner third parties." All Maine Asbestos Litigation (BIW Cases), Bench Ruling, see infra Appendix A at A-3. It follows that, as in Lockheed, it is to the governing substantive law that the Court must look to determine the availability to defendants of a third-party claim for indemnity or contribution³ against BIW. Since jurisdiction of these cases is based upon diversity of citizenship, Austin v. Unarco Industries, Inc., 705 F.2d at 3, the governing substantive law is that which a Maine court would apply. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

II.

It is undisputed that BIW is a compensation-paying employer covered by the Maine Act, 39 Me.Rev.Stat.Ann. § 1 et seq. (1978 & Supp.1983-84). Section 4 of the Maine Act provides that employers who provide workers' compensation "shall be exempt from civil actions because of...