Scarborugh v. Clemco Industries, Civ.A. 03-0087.

• Citation: 264 F.Supp.2d 437
• Decision Date: 16 May 2003
• Docket Number: No. Civ.A. 03-0087.,Civ.A. 03-0087.
• Parties: Barbara SCARBOROUGH, et al v. CLEMCO INDUSTRIES a/k/a Clemco-Clemintina Ltd, et al
• Court: U.S. District Court — Eastern District of Louisiana

264 F.Supp.2d 437

Barbara SCARBOROUGH, et al v. CLEMCO INDUSTRIES a/k/a Clemco-Clemintina Ltd, et al

No. Civ.A. 03-0087.

United States District Court, E.D. Louisiana.

May 16, 2003.

Stanley J. Jacobs & Jodi Jacobs Aamodt, Jacobs, Manuel & Kain, New Orleans, LA, A. Remy Fransen, Fransen & Hardin, New Orleans, LA, for Plaintiff.

Roger D. Marlow, Hulse & Wanek, Covington, LA, Samule Milton Rosamond, III & Thomas W. Aycock, Crawford Lewis, Baton Rogue, LA, Dena Economou & Stacy S. Freel, Karbal, Cohen, Economou, Silk & Dunne, LLC, Chicago, IL, John P. Wolff, III & Kyle A. Ferachi, Keogh, Cox & Wilson, Baton Rouge, LA, James L. Pate & Ben L. Mayeaux, Laborde & Neuner, Lafayette, LA, Michael J. Juneau & Karen B. Levy, The Juneau Firm, Lafayette, LA, James M. Garner, Martha Y Curtis & Jacob A. Airey, Sher, Garner, Cahill, Richter, New Orleans, LA, for Defendan

ORDER AND REASONS

BERRIGAN, District Judge.

Plaintiffs, Barbara Scarborough and her two adult children, Rhonda Scarborough Halterlein and William Scarborough, Jr. ("Plaintiffs") have filed this lawsuit individually and on behalf of the decedent, William Scarborough alleging causes of action under the Louisiana general tort law, survival and wrongful death actions pursuant to La.C.C. 2315.1 and 2315.2. Plaintiffs claim the decedent died as a result of the negligence of named defendants, Pulmosan Safety Equipment Company's ("Pulmosan") and Clemco Industries ("Clemco"). Also, named as defendants and sued under the Louisiana Direct Action Statute, La. R.S. 22:655 are various insurance companies alleged to have issued policies of insurance covering the causes of action and damages alleged.¹

On May 7, 2003, the Court heard Oral Argument on the following motions: (1) Century Indemnity Motion to Dismiss or Alternative Motion for Summary Judgment (Rec.Doc. 7);² (2) Pulmosan's Motion for Summary Judgment (Rec.Doc. 21); and Plaintiffs' Motion for Summary Judgment on Liability (Rec.Doc. 13). Because the factual and legal questions raised by all these motions are interrelated and interdependent, the Court treats them and the various oppositions and replies filed in response thereto as cross-motions for summary judgment in globo.

I. Background

William Scarborough died on March 21, 2002, allegedly due to respiratory failure as a result of silicosis. His spouse and adult children filed this state law wrongful death, survival and general Louisiana tort law action.³ An earlier lawsuit alleging that as a result of the negligence of various defendant corporations the decedent had contracted silicosis, thus rendering him totally and permanently disabled was filed on August 15, 1977, in Section B of this Court before Judge Heebe in an action captioned, William Scarborough v. Northern Assurance Co. of America, et al, Civil Action No. 77-2523 (Scarborough I). Final Judgment was entered on June 18, 1981, in favor of the decedent in the amount of $650,000 as just compensation for his contracting silicosis. (Scarborough I, Rec. Doc. 550). The jury found all four defendants in Scarborough I to be proportionally at fault, however, Judge Heebe found each defendant liable in solido on the entire judgment.⁴

At issue in the various motions urged by the defense and by Plaintiffs is (1) whether Judge Heebe applied admiralty law or Louisiana state law in determining the liability of the defendants, Pulmosan and Clemco; (2) whether the judgment in Scarborough I has preclusive effect on the instant matter; and (3) whether the uniform principle of Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) limits the remedies available to Plaintiffs in this action.

II. standard to Review

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, a district court must accept the factual allegations of the complaint as true and resolve all ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir.1993). Unless it appears "beyond a doubt that the plaintiff can prove no set of facts in support of his claim," the complaint should not be dismissed for failure to state a claim. Id. at 284-285 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). However, conclusory allegations or legal conclusions masquerading as factual conclusions will not defeat a motion to dismiss. See Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995) (citing Fernandez-Montes, 987 F.2d at 284).

Further, Federal Rule 12(b) states that when on a motion "to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Fed.R.Civ.P. 12(b). Because the parties have introduced and/or made available to the Court the entire record in Scarborough I in support of these motions, the Court considers the motions under Rule 56.

The Court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories and admissions on file, togetner witn me affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). Upon such a showing, the burden shifts to the non-moving party to produce evidence of the existence of a genuine issue for trial. Id. A factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Beck v. Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir.1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). When considering a motion for summary judgment, the Court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mutual Automobile Ins. Co., 784 F.2d 577, 578 (5th Cir.1986).

III. Analysis

A. Whether Judge Heebe applied federal admiralty law or Louisiana State law to Pulmosan and Clemco in Scarborough I

Although disputed by all Defendants to this action, there is no question that Judge Heebe applied Louisiana state law to both Pulmosan and Clemco in Scarborough I. By Minute Entry dated June 18, 1981, issued on the same date as the Final Judgment, Judge Heebe states that the Jones Act employers, Coating Specialist and L & M were held responsible for "their negligence and the unseaworthiness of their respective vessels," whereas Pulmosan and Clemco "were responsible to plaintiff because of their negligence and the defective design, manufacture and distribution of their products." (Rec. Doc. 7, Ex. A, Final Judgment at 2). Judge Heebe clearly delineated me jurisdictional circumstances under which the judgment was rendered and found that Pulmosan and Clemco were "sued by plaintiff in diversity and were found liable under Louisiana general tort law, i.e., negligence and products liability." (Id., Ex. A, June 18, 1981 Minute Entry at 2). Additionally, the Final Judgment awards legal interest from the date of judgment on 60% of the verdict (the part apportioned to Coating Specialist and L & M) pursuant to maritime law, and awards legal interest from the date of demand on the remaining 40% (the part apportioned to Pulmosan and Clemco) pursuant to Louisiana state law. (Id. at 3). Finally, Judge Heebe's instruction to the jury clearly distinguishes the claims against Pulmosan and Clemco as arising under Louisiana state law. (See Jury Instructions, Trans, at 2077-80, 2089-90).

Defendants' reliance on Judge Heebe's December 22, 1981 Order in response to certain post-trial motions to amend the Court's determination of joint and several liability is without merit. In the December Order, Judge Heebe found "this is a close case, but one which we are willing to concede in favor of defendants for the purposes of deciding the issue before us because given the result which we reach, we do not think that the decision would be different if we apply admiralty law rather than Louisiana law." (Rec. Doc. 7, Ex. A, December Order at 6) (emphasis added). The post-trial "issue" before the Court was "whether the adoption of comparative fault as the measure of liability among multiple wrongdoers is not inconsistent with the notion of solidary, joint and several, liability to the plaintiff." (Id. at 7). The December Order does not reverse or revoke the decision of the Final Judgment or the explanatory Minute Entry issued on the same date. Rather, in the December Order, Judge Heebe concludes that he correctly assessed the jurisdictional circumstances and correctly applied Louisiana law, however, the Court simply conceded that even if the proponents in the posttrial motions were correct regarding choice of law, the result regarding solidary, joint and several liability would be the same.

Because the Court finds that Judge Heebe applied Louisiana state law to both Pulmosan and Clemco in Scarborough I, Century Indemnity's Motion to Dismiss or Alternative Motion for Summary Judgment, joined and adopted by Hartford Insurers, Clemco and Interstate and Pulmosan's Motion for Summary Judgment are properly denied.⁵

B. Whether Collateral Estoppel Precludes Relitigating the Element of Fault⁶

Pulmosan contends that if the Court finds that Louisiana law was applied in Scarborough I that Plaintiffs cannot claim offensive collateral estoppel as to liability based on the 1981 judgment, because the Louisiana Supreme Court has held that at the relevant time period at issue collateral estoppel did not exist under Louisiana state law. Welch v. Crown Zellerbach Uorp., 35y So.2d 154, 156 (La.iyvy) ("Collateral...