Scarborough v. Clemco Industries

• Decision Date: 18 November 2004
• Docket Number: No. 03-30985.,03-30985.
• Citation: 391 F.3d 660
• Parties: Barbara SCARBOROUGH, Individually and on behalf of decedent William A. Scarborough; Rhonda Scarborough Halterlein, individually and on behalf of decedent William A. Scarborough; William Scarborough, Jr., individually and on behalf of decedent William A. Scarborough, Plaintiffs-Appellants, v. CLEMCO INDUSTRIES, a.k.a. Clemco-Clemintina Ltd.; et al., Defendants, Clemco Industries, Inc., a.k.a. Clemco-Clemintina Ltd.; Pulmosan Safety Equipment Company; Century Indemnity Company; as successor to CCI Insurance Company of North America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

391 F.3d 660

Barbara SCARBOROUGH, Individually and on behalf of decedent William A. Scarborough; Rhonda Scarborough Halterlein, individually and on behalf of decedent William A. Scarborough; William Scarborough, Jr., individually and on behalf of decedent William A. Scarborough, Plaintiffs-Appellants, v. CLEMCO INDUSTRIES, a.k.a. Clemco-Clemintina Ltd.; et al., Defendants Clemco Industries, Inc., a.k.a. Clemco-Clemintina Ltd.; Pulmosan Safety Equipment Company; Century Indemnity Company; as successor to CCI Insurance Company of North America, Defendants-Appellees.

No. 03-30985.

United States Court of Appeals, Fifth Circuit.

November 18, 2004.

A. Remy Fransen, Jr. (argued), Fransen & Hardin, Jodi Jacobs Aamodt, Jacobs, Manuel & Kain, New Orleans, LA, for Plaintiffs-Appellants.

Roger Douglas Marlow (argued), Hulse & Wanek, Covington, LA, James M. Garner, Martha Y. Curtis, Jacob Albert Airey, Sher, Garner, Cahill, Richter, Klein, McAlister & Hilbert, New Orleans, LA, for

Clemco Industries Inc. and Century Indem. Co.

Darrell K. Cherry (argued), Deutsch, Kerrigan & Stiles, New Orleans, LA, for Pulmosan Safety Equipment Co.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JONES and WIENER, Circuit Judges, and LITTLE^*, District Judge.

LITTLE, District Judge:

I. FACTUAL AND PROCEDURAL HISTORY

This appeal arises from the district court's judgment dismissing the claims for nonpecuniary damages of Appellants, Barbara Scarborough, Rhonda Scarborough, and William Scarborough, Jr. ("Appellants"). See Scarborough v. Clemco Indus., 264 F.Supp.2d 437 (E.D.La.2003) (stating the reasons upon which the district court dismissed the claim for nonpecuniary damages). Appellants had sued, inter alia, Clemco Industries, Inc. ("Clemco"), Pulmosan Safety Equipment Co. ("Pulmosan") and Century Indemnity Co. ("Century") (collectively "Appellees"), individually and for damages they sustained as a result of William Scarborough's wrongful death.

Scarborough worked aboard sandblasting vessels between 1959 and 1967. These vessels maintained the protective coatings of offshore oil platforms through the use of abrasive sandblasting. The equipment used in this procedure included sand pots located within the hull of the vessel, compressors located on the deck of the vessel, hoses that were connected to the compressor and brought aboard the platforms, and hoods worn by the decedent while sandblasting. It is alleged that the hoods worn by Scarborough while sandblasting were manufactured by Pulmosan and Clemco. The hoods were allegedly defective and caused Scarborough to inhale silica and other materials. The inhalation of these materials caused Scarborough to develop silicosis.

In 1977, Scarborough brought suit in the United States District Court for the Eastern District of Louisiana against his employer, Appellees, and certain insurers alleging that their negligence had caused him to develop silicosis and that he was permanently disabled. Scarborough v. N. Assurance Co., et al., No. 77-2523 (E.D.La.1977) (Heebe, J.) ("Scarborough I"). The jury in that case returned a $650,000 verdict in Scarborough's favor. The jury's findings of fact included, inter alia, that Scarborough was a Jones Act seaman, a status he sought, and that the negligence of his employer and the manufacturers of vessel equipment caused his disability when they provided equipment that rendered the vessel unseaworthy.

Scarborough died of respiratory failure on 21 March 2002. Approximately ten months later, Appellants brought suit against a majority of the Scarborough I defendants for wrongful death, arguing that the defendants were precluded by the doctrine of collateral estoppel from rearguing the issue of their liability for causing Scarborough to develop silicosis. Scarborough v. Clemco Indus., 264 F.Supp.2d 437 (E.D.La.2003) ("Scarborough II"). The Scarborough II court, in an order addressing various cross motions for dismissal and summary judgment, made the following pertinent findings:

1. Appellants' cause of action against Clemco and Pulmosan for wrongful death arises under maritime law and is subject to federal admiralty jurisdiction.

2. Appellants are precluded by the doctrine of collateral estoppel from arguing that Scarborough was not a Jones Act seaman.

3. Under the uniformity principle announced in Miles v. Apex Marine Corp., 498 U.S. 19, 29, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), a Jones Act seaman and his survivors may not recover nonpecuniary damages in a wrongful death suit against a non-employer third party.

264 F.Supp.2d at 447. The motions for dismissal and summary judgment were denied in the district court's Order and Reasons entered on 16 May 2003 because there were material issues of fact in connection with Appellants' pecuniary damages claims that were in dispute. Id. After the pecuniary damages claims were settled, however, the motion to dismiss was granted by the district court in its Final Judgment entered on 1 October 2003.

Appellants now appeal two legal conclusions, contained in the district court's Order and Reasons, based upon which it later dismissed Appellants' claims:

1) Appellants' claims against Clemco, Pulmosan, and Century are subject to federal admiralty jurisdiction.

2) A Jones Act seaman's survivors may not recover nonpecuniary damages against a non-employer third party in a maritime wrongful death action.

As explained below, we affirm the trial court.

II. DISCUSSION

A summary judgment granting a motion to dismiss and the legal conclusions upon which it is based are reviewed de novo. Vais Arms, Inc. v. Vais, 383 F.3d 287, 291 (5th Cir.2004). "When de novo review is compelled, no form of appellate deference is acceptable." Salve Regina College v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

A. Federal Admiralty Jurisdiction

Determinations of the applicability of federal admiralty jurisdiction are governed by the two part test adopted by the Supreme Court in Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1995) ("Sisson").

After Sisson, then, a party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. The connection test raises two issues. A court, first, must "assess the general features of the type of incident involved," to determine whether the incident has "a potentially disruptive impact on maritime commerce." Second, a court must determine whether "the general character" of the "activity giving rise to the incident" shows a "substantial relationship to traditional maritime activity."

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995) (citations omitted).

i. The Location Test

The location requirement for invocation of federal admiralty jurisdiction can be satisfied in two ways: 1) showing that the tort occurred on navigable water, or 2) showing that the injury was caused by a vessel in navigable water. Id. at 534-35, 115 S.Ct. 1043. Appellants argue that Scarborough's injuries were not caused by a vessel on navigable water.

What actually caused the harm to Scarborough was the inhalation of silica and other particles. These deleterious materials were created when sand stored in a sand pot in the hull of the vessel on which Scarborough worked was forced, by means of an air compressor located on the deck of the vessel, through a hose and out onto whatever surface Scarborough was trying to maintain. The appurtenances of the vessel, therefore, were one of the "but for" causes of the injury to Scarborough. For the vessel to be a cause of Scarborough's injuries under Sisson, however, the vessel must have been a proximate cause of his injuries. Id. at 537-38, 115 S.Ct. 1043. In this case, it appears that the hoods and masks produced by Appellees proximately caused the injuries to Scarborough. Therefore, only if the hoods and masks are themselves found to be appurtenances of the vessel can the location test be met under this prong. The court does not, however, need to address the question of whether the masks and hoods here at issue were appurtenances of the vessels upon which Scarborough worked.

Even if the hoods and masks are not appurtenances of the vessels on which Scarborough worked, the first means for meeting the location test is satisfied because the tort occurred on navigable water. Appellants argue that the facts of this case do not support a finding that the tort occurred on navigable water. They base this contention on the assertion that the sandblasting that ultimately injured Scarborough was done on fixed offshore platforms that are considered to be land under the Outer Continental Shelf Lands Act ("OCSLA"). 43 U.S.C. §§ 1331-1356a (2004). Appellants' argument, however, is undermined by Scarborough's own testimony during Scarborough I. When asked if he had to "get on the rig to sandblast," Scarborough stated that although sandblasting was usually done on the rig, "we occasionally blasted off the boat" when "working around the edge of the water line." Similarly, Scarborough testified that some of the offshore rigs upon which he worked were not fixed. Given that Scarborough's injury developed over a period of eight years, when he worked to some extent around the edge of the water line and on platforms not fixed to the ocean floor, Appellants' argument that the tort did not occur on navigable water is less than persuasive.¹

ii. The Connection Test

The connection test for invocation of federal admiralty jurisdiction has two requirements. First, the activity at issue must be of a sort with potential to disrupt maritime commerce. Jerome B. Grubart, Inc. v. Great...