Oglesby v. Cooper Mfg. Corp.

• Decision Date: 09 June 1992
• Docket Number: Civ. A. No. 86-3382.
• Citation: 144 BR 700
• Parties: Katie Jean OGLESBY, et al. v. COOPER MANUFACTURING CORP., et al.
• Court: U.S. District Court — Eastern District of Louisiana

144 B.R. 700 (1992)

Katie Jean OGLESBY, et al. v. COOPER MANUFACTURING CORP., et al.

Civ. A. No. 86-3382.

United States District Court, E.D. Louisiana.

June 9, 1992.

COPYRIGHT MATERIAL OMITTED

Kristi Ann Post, L. Thomas Lakin Law Offices, New Orleans, La., Dennis F. Nalick, Kenner, La., Lowell Thomas Lakin, Woodriver, Ill., for plaintiffs.

William Everard Wright, Jr., Judy Lynn Burnthorn, Deutsch, Kerrigan & Stiles, David Perez Banowetz, Jr., Exxon Co, USA, Corp. Div., John G. Gomila, Jr., Donna E. Powe, Michele Whitesell Crosby, Jones, Walker, Waechter, Poitevent Canère & Denègre, et al., New Orleans, La., Michael Phillip Mentz, Christopher Kelly Lightfoot, Hailey, McNamara, et al., Metairie, La., for defendants.

Richard S. Vale, Virgil A. Lacy, III, Blue, Williams & Buckley, Metairie, La., for intervenor.

SUPPLEMENTAL ORDER AND REASONS

ARCENEAUX, District Judge.

Defendant Oklahoma Property & Casualty Insurance Guaranty Association ("OIGA") filed a motion on May 14, 1992, for an expedited hearing on a motion to dismiss or, in the alternative, for summary judgment on the issue of subject matter jurisdiction. On May 20, 1992, Defendant Liberty Mutual Insurance Company ("Liberty Mutual") filed a similar motion on the issue of subject matter jurisdiction and also requested an expedited hearing. Having reviewed the memoranda in support, the opposition memoranda, and the applicable law, and having held a hearing on June 4, 1992, at which time the court denied both motions, the court now issues this order and reasons to supplement those oral reasons given at the time of such hearing.

BACKGROUND

Plaintiff, Katie Jean Oglesby ("Oglesby"), commenced this action on August 4, 1986, on behalf of herself, her deceased husband's estate, and their two children.¹ (R. at 1.) The tortuous history of events leading up to Mr. Oglesby's death and this instant action with relatively simple facts begins over ten years ago. The court finds it proper and necessary to recite such history for the purpose of these present motions.²

Permian Engineering Corporation ("Permian") allegedly designed and manufactured a derrick sometime during the 1970s. In 1978, Cooper purchased this derrick from Permian, but either Permian or Cooper apparently sent it out to Worthington Oil Company prior to its return to Cooper. Upon the derrick's return, Cooper allegedly painted and repaired the Permian derrick and, further, mounted it on top of a truck. In 1980, Cooper sold this entire structure to Grosse Tete Well Service ("Grosse Tete"). Gross Tete apparently used the derrick structure without incident from 1980 until 1985.

Mr. Oglesby, the decedent, worked for Grosse Tete as a derrick man. On November 7, 1985, Oglesby sustained fatal injuries on a job at Shell Oil's plant in Norco, Louisiana. The decedent apparently fell approximately forty feet from the Permian/Cooper derrick structure when the upper portion of the rig collapsed.

Mrs. Oglesby, in the original complaint, alleged product liability claims against Cooper and Pemco, Inc. ("Pemco") for the wrongful death of her husband. On December 4, 1986, Pacific Marine Insurance Company ("Pacific Marine") intervened in this matter for worker's compensation benefits paid pursuant to Louisiana law.³ Subsequently, Cooper formally appeared by answering the complaint on March 31, 1987, along with Allied Fidelity Insurance Company ("Allied Fidelity"), its insurer.⁴

The answer filed by Cooper and Allied Fidelity denied Plaintiff's allegations of proper subject matter jurisdiction. (R. at 8.) Furthermore, Cooper alleged that it was a bankrupt corporation with its place of incorporation and principal place of business in the State of Texas. This answer further alleged that Allied Fidelity was a foreign insurer in liquidation and subject to a $150,000.00 statutory cap under Oklahoma's insurance guaranty act.⁵

The court held a scheduling conference on November 19, 1987, and set this matter for trial on June 27, 1988. (R. at 18.) On December 29th, the court granted a motion for Judy L. Burnthorn, Esq., of Baldwin & Haspel to be enrolled as co-counsel for Cooper and Allied Fidelity. (R. at 21.)

Plaintiff, through Mr. Nalick, subsequently filed a first amended complaint on March 15, 1988, naming Permian Engineering & Manufacturing Corporation as an additional defendant. (R. at 27.) On March 17, 1988, Cooper and Allied Fidelity answered the first amended complaint and again denied Plaintiff's allegations of subject matter jurisdiction. (R. at 28.) Permian also answered the first amended complaint on June 9, 1988, and raised liberative prescription as an affirmative defense. (R. at 39.)

The court held a status conference on June 15, 1988, and continued the trial set for June 27th. (R. at 41.) The court granted the continuance for several reasons: Cooper allegedly had gone completely bankrupt; Allied Fidelity was insolvent; the Plaintiff sought to add OIGA as a party-defendant in place of Allied Fidelity; and Permian allegedly had been dissolved and purportedly lacked legal capacity to be sued.⁶

Mrs. Oglesby, again through Mr. Nalick, filed a second amended complaint on June 20, 1988, naming OIGA as being responsible for any liability on any claim in a direct action against Allied Fidelity. (R. at 42.) Oglesby also named Liberty Mutual Insurance Company ("Liberty Mutual"), the insurer of Permian, in a direct action. Furthermore, this second amended complaint alleged Cooper to be a citizen of Oklahoma.

Liberty Mutual answered this second amended complaint on June 29, 1988, and asserted liberative prescription as an affirmative defense. On August 16th, the court granted an unopposed motion to dismiss Permian, Liberty Mutual's insured. (R. at 51.) On September 2, 1988, Ms. Burnthorn filed an answer to the second amended complaint on behalf of Cooper, Allied Fidelity, and OIGA.⁷ (R. at 53.) In this answer, the Defendants contended that the Texas Property and Casualty Insurance Guaranty Association was an indispensable party, that subject matter jurisdiction did not exist, and that Liberty Mutual should indemnify or, in the alternative, should provide contribution to Cooper, Allied Fidelity, and OIGA.

The court thereafter held a second scheduling conference on October 12, 1988. (R. at 59.) At this conference, the court set June 19, 1989, for commencement of the trial. On October 20, 1988 the Plaintiff, through Mr. Nalick, filed a third amended complaint naming James T. Odiorne ("Odiorne"), the ancillary receiver for Allied Fidelity in Texas, as yet another defendant. (R. at 58.) All Defendants answered this third amended complaint, including Cooper, Allied Fidelity, and OIGA (through Ms. Burnthorn), which parties again denied the existence of subject matter jurisdiction. (R. at 63, 65.) On November 23rd, Odiorne filed a motion to dismiss in response to the third amended complaint. (R. at 64.)

Stephen S. Durish ("Durish") subsequently took Odiorne's place as ancillary receiver for Allied Fidelity and prosecuted the motion to dismiss. Because of Texas law governing insurance company receivership, this court found itself without subject matter jurisdiction to hear the claims against Durish. (R. at 94.) The court, therefore, granted the motion on April 19, 1989.⁸

Cooper, Allied Fidelity, and OIGA (through Gary Giepert, Esq., of Baldwin & Haspel) filed a motion for summary judgment on April 19, 1989, alleging that Cooper did not manufacture any of the allegedly defective parts and that Liberty Mutual should indemnify Cooper, Allied Fidelity, and OIGA. (R. at 108.) The Defendants noticed this motion for hearing on June 14, 1989, even though the pre-trial conference had been scheduled for June 1, 1989 and the trial had been set for June 19th. Furthermore, the court's standard scheduling order required motions to be filed and noticed for hearing more than thirty days prior to the trial date.⁹

The court held the pre-trial conference on June 1, 1989, as scheduled. (R. at 114.) During this conference, counsel for Cooper, Allied Fidelity, and OIGA raised the issue of whether OIGA offered coverage to both Cooper and Allied Fidelity and the extent thereof. These Defendants also addressed other issues in a pre-trial memorandum relative to the extent of coverage required by OIGA under the Oklahoma insurance guaranty act. (R. at 128.) Furthermore, on June 8th, Cooper, Allied Fidelity, and OIGA filed a motion for leave to file an amended cross-claim against Liberty Mutual, asserting for the first time that Cooper should be an additional insured under Liberty Mutual's policy. (R. at 123a, 131a.) Subsequently, the court yet again continued the trial in this matter. (R. at 140.)

The court held a preliminary pre-trial conference and set a third trial date for December 11, 1989, and again entered its standard scheduling order with respect to pre-trial matters. (R. at 154.) Also, OIGA had been ordered previously to bring any motions relative to contentions raised in its pre-trial memoranda. (R. at 143b.)

Cooper, Allied Fidelity, and OIGA thereafter filed a motion for summary judgment on July 11, 1989. (R. at 144.) In this motion, the Defendants sought to have Cooper and Allied Fidelity dismissed from the action. As to Cooper, counsel represented the following:

Cooper filed bankruptcy in 1984. It is undisputed that Cooper had been dissolved by the Texas Secretary of State. All of Cooper\'s assets have been sold, and the proceeds from those assets have been distributed. There is one remaining liquidating trust, whose assets will be totally distributed within six months. Therefore, before there is a final judgment in this case, Cooper will no longer exist in any capacity. The corporation, itself, no longer exists, and its bankruptcy estate will be entirely liquidated.

In order to "clean up" the pleadings and involve only the actual parties at interest, this Court should dismiss Cooper as a party in this action. To include

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