Walashek, et al v. Air & Liquid Systems Corporation, et al, No. 3:2014cv01567 - Document 408 (S.D. Cal. 2016)
Court Description: ORDER Granting Fraser's Boiler Service, Inc's 291 Motion for Summary Judgment. Signed by Judge Barry Ted Moskowitz on 4/25/2016. (All non-registered users served via U.S. Mail Service)(rlu)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 GAIL ELIZABETH WALASHEK, individually and as successor-ininterest to the Estate of MICHAEL WALASHEK and THE ESTATE OF CHRISTOPHER LINDEN, et al., 15 16 17 18 Case No.: 14cv1567 BTM(BGS) ORDER GRANTING FRASER’S BOILER SERVICE, INC’S MOTION FOR SUMMARY JUDGMENT Plaintiffs, v. AIR & LIQUID SYSTEMS COPRORATION, et al. Defendants. 19 20 21 Defendant Fraser’s Boiler Service, Inc. (“FBS”) has filed a motion for 22 summary judgment. For the reasons set forth below, the Court GRANTS FBS’s 23 motion. 24 I. BACKGROUND 25 26 On September 23, 2013, Plaintiffs commenced this wrongful death and 27 survival action in state court. On June 26, 2014, this action was removed to federal 28 court. 1 14cv1567 BTM(BGS) 1 The Complaint alleges that Michael Walashek’s exposure to asbestos and 2 asbestos-containing products, in the course of performing his work for various 3 employers from 1967 through 1986, caused him to suffer severe and permanent 4 injury and ultimately death. The Complaint asserts claims of negligence, breach 5 of warranties, strict liability, fraud, conspiracy, loss of consortium, and wrongful 6 death. 7 Michael Walashek was a career boilermaker. According to Walashek’s 8 Social Security Records, Statement of Earnings, Walashek’s work history is as 9 follows: 10 Employer Time Period 11 Fraser’s Boiler Services, Inc. (San Diego) 1972-1976 12 Camass Company 1976-1980 13 San Diego: 1976-1978 14 Seattle: 1978-1980 15 Fraser’s Boiler, Inc. (Seattle) 1981-1986 16 17 (Def. Ex. 16.) For purposes of this motion, FBS concedes that Fraser’s Boiler 18 Services, Inc., in San Diego and Fraser’s Boiler, Inc., in Seattle are the same entity. 19 20 II. STANDARD 21 Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil 22 Procedure if the moving party demonstrates the absence of a genuine issue of 23 material fact and entitlement to judgment as a matter of law. Celotex Corp. v. 24 Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing 25 substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, 26 Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 27 1997). A dispute is genuine if a reasonable jury could return a verdict for the 28 nonmoving party. Anderson, 477 U.S. at 248. 2 14cv1567 BTM(BGS) 1 A party seeking summary judgment always bears the initial burden of 2 establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 3 323. The moving party can satisfy this burden in two ways: (1) by presenting 4 evidence that negates an essential element of the nonmoving party’s case; or 5 (2) by demonstrating that the nonmoving party failed to establish an essential 6 element of the nonmoving party’s case on which the nonmoving party bears the 7 burden of proving at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary 8 facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. 9 Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 10 Once the moving party establishes the absence of genuine issues of material 11 fact, the burden shifts to the nonmoving party to set forth facts showing that a 12 genuine issue of disputed fact remains. Celotex, 477 U.S. at 314. The nonmoving 13 party cannot oppose a properly supported summary judgment motion by “rest[ing] 14 on mere allegations or denials of his pleadings.” Anderson, 477 U.S. at 256. When 15 ruling on a summary judgment motion, the court must view all inferences drawn 16 from the underlying facts in the light most favorable to the nonmoving party. 17 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 18 19 III. DISCUSSION 20 FBS moves for summary judgment on the ground that because Mr. 21 Walashek claims that he was exposed to asbestos during the course and scope of 22 his employment with FBS, Plaintiffs’ claims are barred by California’s workers’ 23 compensation exclusive remedy doctrine as well as the Longshore and Harbor 24 Workers’ Compensation Act (“LHWCA”). FBS also contends that to the extent 25 Plaintiffs’ claims fall outside the exclusive remedy afforded through the California 26 Labor Code or LHWCA, the “sophisticated user” doctrine bars the claims. FBS 27 moves, in the alternative, for partial summary judgment on Plaintiffs’ claim for 28 punitive damages. 3 14cv1567 BTM(BGS) 1 Perhaps in an effort to avoid workers’ compensation exclusivity, Plaintiffs 2 take the position that “plaintiffs’ claims at issue here occurred with [sic] Walashek 3 was working for Camass – not Fraser Boiler.” (Opp. at 15:28-16:1.) Plaintiffs 4 allege that Walashek was exposed to asbestos dust caused and created by FBS 5 while Walashek was employed by Camass and working aboard the USS Kitty 6 Hawk and USS Constellation between 1976 and 1980. (Opp. at 1:4-12.) 7 However, Plaintiffs fail to establish a genuine issue of disputed fact with 8 respect to whether Walashek was exposed to asbestos dust attributable to FBS 9 while employed by Camass. As pointed out by FBS, Plaintiffs’ discovery 10 responses did not reveal any facts regarding FBS exposing Walashek to asbestos 11 dust while he worked for Camass. 12 Interrogatories, Response to Interrogatory No. 26 (Def. Ex. 3); Plaintiffs’ Initial 13 Disclosures at 26-27 (Def. Ex. 33); Plaintiffs’ Responses to Special Interrogatories 14 Propounded by Defendant Fraser’s Boiler Service, Inc., Set One, Responses to 15 Special Interrogatory Nos. 1 and 13 (Def. Ex. 12). Therefore, the burden shifts to 16 Plaintiffs to show that a genuine issue of disputed fact remains regarding this issue. 17 Plaintiffs rely on the deposition testimony of witnesses to establish that 18 Walashek worked around FBS workers on the USS Kitty Hawk and USS 19 Constellation. But a close examination of the deposition testimony reveals that 20 there is no reliable evidence that Walashek was ever a bystander to work 21 performed by FBS on the USS Kitty Hawk and/or USS Constellation. See Plaintiffs’ Responses to Standard 22 Plaintiffs point to testimony by Ron Gray as proof that Camass and FBS 23 worked on the boilers on the USS Kitty Hawk and USS Constellation at the same 24 time. However, Gray does not actually state that he and/or Walashek ever worked 25 in the same space as FBS. The relevant portion of the deposition transcript is set 26 forth below: 27 28 Q. Were you personally involved in changing out the superheaters on all 16 boilers associated with these two ships? 4 14cv1567 BTM(BGS) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 A. I couldn’t specifically say all 16 on both ships. Some would go to one contractor; one time period we’d win the bid. And other times it would go to another company. It was just the two that was involved in those time frames, between Camass and Fraser’s, here in San Diego. (Gray Dep. (Pl Ex. B) at 95:11-19.) It appears from this testimony that either Camass or FBS would win the bid during a specific time period. Although Gray testified that during the 1974-1978 time period he saw other contractors on the carriers, he did not identify FBS as one of the contractors. (Gray Dep. at 119:4-15.) There is evidence that sub-contractors worked on boilers simultaneously as the prime boiler repair contractor. Gordon, a former employee of M. Slayen & Associates, an insulation contractor, testified that FBS would hire M. Slayen as a sub-contractor and their employees would work on the same ship. (Gordon Dep. at 174:18-175:17; 195:14-18.) James Doud similarly testified that he recalled seeing employees of Performance Contractors, Inc., an insulation subcontractor, on a Navy ship job he was performing with Walashek for Camass. (Doud Dep. at 221:12-20.) Doud also saw workers for other crafts, such as pipefitters, machinists and laborers, electricians, and ventilation workers. (Id. at 220:18-221:4.) 18 When asked whether there could be multiple boiler repair contractors – i.e., 19 Fraser, Camass, and/or Marine – on a single ship, Gordon stated, “It can happen.” 20 (Id. at 180: 17-20.) However, it does not appear that Gordon’s response was 21 22 23 24 25 26 27 28 based on personal knowledge. Rather, Gordon was speculating about what might be possible. Indeed, Frank Walashek, the decedent’s brother, did not think that Camass and FBS ever worked together: Q: To your knowledge, did Cammas and Fraser Boiler ever work together in a boiler room on a ship? A. I don’t believe so, they were competitors. (Frank Walashek Dep. (Def. Ex. 34) at 444:19-23.) This testimony is supported by 5 14cv1567 BTM(BGS) 1 Gordon’s observation that there were three major boiler companies – Fraser, 2 Camass, and Marine Boiler. (Gordon Dep. at 179:9-16.) 3 The Court concludes that Plaintiffs have not raised a triable issue of material 4 fact with respect to whether Walashek was exposed to asbestos dust attributable 5 to FBS while working for Camass. Therefore, the Court grants FBS’s motion for 6 summary judgment. 7 8 IV. CONCLUSION 9 For the reasons discussed above, Fraser’s Boiler Service, Inc.’s Motion for 10 Summary Judgment is GRANTED. Because the Court finds that there is no just 11 reason for delay, the Court orders the Clerk to enter final judgment in favor of 12 Fraser’s Boiler Service, Inc. 13 14 15 IT IS SO ORDERED. Dated: April 25, 2016 16 17 18 19 20 21 22 23 24 25 26 27 28 6 14cv1567 BTM(BGS)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
