Pitre et al v. Huntington Ingalls Inc et al, No. 2:2017cv07029 - Document 95 (E.D. La. 2018)
Court Description: ORDER AND REASONS granting 65 Motion for Summary Judgment; Plaintiffs' state law claims against Huntington Ingalls, Inc. and Lamorak Insurance Company are DISMISSED WITH PREJUDICE. Further, the Court DENIES plaintiffs' motion for voluntary dismissal as moot. Signed by Judge Sarah S. Vance on 4/30/2018. (cg)
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Pitre et al v. Huntington Ingalls Inc et al Doc. 95 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DIANE PITRE, ET AL. CIVIL ACTION VERSUS NO. 17-70 29 HUNTINGTON INGALLS, INC., ET AL. SECTION “R” (5) ORD ER AN D REASON S Defendants Lam orak Insurance Com pany and Huntington Ingalls, Inc. m ove for sum m ary judgment. 1 Plaintiffs m ove to dism iss their claims against these defendants without prejudice. 2 For the following reasons, the Court grants sum mary judgment and denies plaintiffs’ motion as m oot. I. BACKGROU N D This case arises out of alleged asbestos exposure at Avondale Shipyard in Avondale, Louisiana. 3 Steward Pitre worked as a pipefitter for Avondale Shipyard from 1964 to 1972. 4 Mr. Pitre developed lung cancer, allegedly as a result of exposure to asbestos at Avondale and passed away on J uly 15, 20 16. 5 1 2 3 4 5 R. Doc. 65. R. Doc. 80 . R. Doc. 4-1. R. Doc. 65-4; R. Doc. 65-5 at 2. R. Doc. 4-1 at 4 ¶¶ 15-16. Dockets.Justia.com On April 6, 20 17, Mr. Pitre’s wife and children filed suit in state court asserting claim s for wrongful death and survival under Louisiana law. 6 Plaintiffs nam ed num erous defendants, including Huntington Ingalls, Inc. (Avondale) and Lam orak Insurance Com pany. 7 Plaintiffs alleged that Mr. Pitre was exposed to asbestos during his em ployment at Avondale, and that his injuries were caused by the negligence of Avondale and three deceased Avondale executive officers. 8 Lam orak was sued as the alleged insurer of Avondale and its executive officers. 9 On J uly 24, 20 17, Avondale and Lamorak rem oved this action on the basis of federal officer jurisdiction. 10 Plaintiffs filed a contested m otion to am end their complaint, which the Magistrate J udge granted. 11 Plaintiffs also m oved to rem and to state court. 12 On December 6, 20 17, the Court denied Avondale and Lamorak’s m otion to review the Magistrate J udge’s order, and denied plaintiffs’ motion to rem and. 13 6 R. Doc. 4-1. Id. at 1-3. Lam orak Insurance Company was incorrectly designated as One Beacon Am erica Insurance Company. Huntington Ingalls was form erly known as Avondale Industries, Inc., and Avondale Shipyards, Inc. See id. at 1 ¶ 1. 8 Id. at 10 -12. 9 Id. at 3 ¶¶ 10 -12. 10 R. Doc. 1. 11 R. Doc. 19; R. Doc. 31. 12 R. Doc. 20 . 13 R. Doc. 47. 2 7 Avondale and Lamorak now m ove for sum m ary judgm ent. 14 Plaintiffs m ove to voluntarily dism iss their claim s against these two defendants without prejudice. 15 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could 14 15 R. Doc. 65. R. Doc. 80 . 3 not lead a rational trier of fact to find for the non-m oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal citation om itted). The nonm oving party can then defeat the motion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for 4 trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). III. D ISCU SSION Avondale and Lamorak m ove for summ ary judgm ent on the grounds that plaintiffs’ claim s against them are subject to the exclusivity provisions of the Longshore and Harbor Workers’ Compensation Act (LHWCA). 16 Plaintiffs offer no substantive opposition to this m otion. Instead, they m ove for dism issal without prejudice under Federal Rule of Civil Procedure 41(a)(2). 17 Plaintiffs represent that they intend to pursue a LHWCA claim in lieu of a tort suit against Avondale and Lam orak. 18 Defendants Foster Wheeler LLC, CBS Corporation, and General Electric Com pany support plaintiffs’ m otion for voluntary dism issal, and ask the Court not to rule on the sum m ary judgm ent m otion. 19 16 R. Doc. 65. R. Doc. 79; R. Doc. 80 . 18 R. Doc. 80 . 19 R. Doc. 86 at 1. These defendants filed a cross-claim against Avondale. See R. Doc. 77. The cross-claim has since been voluntarily dism issed under Federal Rule of Civil Procedure 41(c). See R. Doc. 88. 5 17 Rule 41(a)(2) permits a plaintiff to dism iss her claim s “only by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). Dism issal without prejudice is not justified when a request for voluntary dism issal is “intended to avoid an im m inent adverse result on sum m ary judgm ent.” Harris v. Devon Energy Prod. Co., LP, 50 0 F. App’x 267, 269 (5th Cir. 20 12); see also In re FEMA Trailer Form aldahy de Prod. Liab. Litig., 628 F.3d 157, 162 (5th Cir. 20 10 ). Avondale and Lam orak’s m otion for sum m ary judgm ent was subm itted to the Court two weeks before plaintiffs’ m otion to dism iss. 20 The Court thus finds it appropriate to first consider the sum mary judgment m otion. 21 Avondale and Lamorak argue that the LHWCA provides the exclusive remedy against them for Mr. Pitre’s injuries. 22 The LHWCA is a workers’ com pensation law that requires employers to provide com pensation to 20 R. Doc. 65; R. Doc. 80 . In their response to plaintiffs’ Rule 41(a)(2) m otion, Foster Wheeler, General Electric, and CBS request a new briefing schedule on the sum m ary judgm ent m otion because the m otion is currently unopposed. See R. Doc. 86 at 3-4. The Court addressed this issue at the February 23, 20 18 prelim inary conference after plaintiffs’ counsel indicated that plaintiffs m ight m ove for voluntary dism issal. The Court declined to extend the briefing schedule on the sum m ary judgm ent m otion and instructed any party that opposed sum m ary judgment to file an opposition by the March 6, 20 18 deadline. Foster Wheeler, General Electric, and CBS failed to file a tim ely opposition, and the Court finds no good cause to reopen briefing. 22 R. Doc. 65. 6 21 covered em ployees irrespective of fault. See 33 U.S.C. § 90 4; see also Fontenot v. AW I, Inc., 923 F.2d 1127, 1132 (5th Cir. 1991). The Act represents a com prom ise between the concerns of workers and their employers, in which “[e]m ployers relinquished their defenses to tort actions in exchange for lim ited and predictable liability.” Morrison-Knudsen Constr. Co. v. Dir., Ofifce of W orkers’ Com p Program s, 461 U.S. 625, 636 (1983). On their part, workers accept lim ited dam ages as a tradeoff for “prompt relief without the expense, uncertainty, and delay that tort actions entail.” Id. There is no genuine dispute that plaintiffs’ claims against Avondale and Lam orak are covered by the LHWCA. The Act provides for death benefits to the widow and children of an em ployee who dies from a covered injury. See 33 U.S.C. § 90 9. To recover benefits under the Act, a claim ant m ust satisfy both “status” and “situs” elem ents. See N ew Orleans Depot Servs., Inc. v. Dir. Office of W orker’s Com p. Program s, 718 F.3d 384, 389 (5th Cir. 20 13). Mr. Pitre m eets the “status” requirem ent because he was employed by Avondale as a pipefitter aboard vessels being built or repaired at Avondale Shipyard. 23 See 33 U.S.C. § 90 2(3) (defining em ployee to include “any harbor-worker including a ship repairm an, shipbuilder”); see also Chesapeake & Ohio Ry . Co. v. Schw alb, 493 U.S. 40 , 45 (1989). 23 R. Doc. 65-4; R. Doc. 65-5 at 2; R. Doc. 65-6 at 33-35, 68-70 . 7 Mr. Pitre also meets the “situs” requirem ent under the post-1972 LHWCA. 24 The Act covers disability or death resulting “from an injury occurring upon the navigable waters of the United States (including any . . . adjoining area custom arily used by an em ployer in loading, unloading, repairing, dism antling, or building a vessel).” 33 U.S.C. § 90 3(a); see also N ew Orleans Depot Servs., 718 F.3d at 393-94 (adopting “definition of ‘adjoining’ navigable water to m ean ‘border on’ or ‘be contiguous with’ navigable waters”). Mr. Pitre’s asbestos exposure allegedly occurred on and around vessels being built or repaired at Avondale Shipyard. 25 Avondale’s vessel construction and repair activities occurred on the west bank of the Mississippi River adjacent to navigable waters. 26 The LHWCA includes exclusivity provisions barring lawsuits against an injured worker’s em ployer and co-employees. Specifically, the Act provides that “[t]he liability of an employer prescribed in section 90 4 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife . . . and anyone 24 The post-1972 provisions of the LHWCA apply to plaintiffs’ claim s because Mr. Pitre’s “tim e of injury” under the Act is the date that his alleged latent injury m anifested itself. See 33 U.S.C. § 910 (i); Castorina v. Ly kes Bros. S.S. Co., Inc., 758 F.2d 10 25, 10 31 (5th Cir. 1985). Mr. Pitre was diagnosed with lung cancer in April 20 16. See R. Doc. 4-1 at 4 ¶ 15. 25 R. Doc. 4-1 at 4 ¶ 16; R. Doc. 65-6 at 66-69; R. Doc. 65-7 at 2. 26 R. Doc. 65-7 at 2. 8 otherwise entitled to recover damages from such em ployer at law or in adm iralty on account of such injury or death.” 33 U.S.C. § 90 5(a). The Act also provides the exclusive remedy for injuries caused by the negligence or wrongful act of an officer or em ployee of the employer. 33 U.S.C. § 933(i). These provisions cover plaintiffs’ claim s against Avondale and its executive officers, as well as claim s against Lamorak in its capacity as their insurer. See Perron v. Bell Maint. & Fabricators, Inc., 970 F.2d 140 9, 1412-13 (5th Cir. 1992) (explaining that a § 933(i) defense is available to liability insurers). The LHWCA’s exclusivity provisions do not fully preempt state workers’ compensation statutes. See Sun Ship, Inc. v. Penn., 447 U.S. 715, 723-24 (1980 ). The Suprem e Court has recognized concurrent jurisdiction between the LHWCA and state workers’ com pensation laws in the “twilight zone” where state and federal com pensation schemes meet. See Sun Ship, 447 U.S. at 718 (citing Davis v. Dep’t of Labor & Indus. of W ash., 317 U.S. 249, 256 (1942)). Concurrent jurisdiction is warranted in such cases because, under a regim e of m utually exclusive federal and state jurisdiction, “an injured worker was compelled to make a jurisdictional guess before filing a claim ; the price of error was unnecessary expense and possible foreclosure from the proper forum by statute of lim itations.” Id. But the LHWCA rem ains the exclusive rem edy in cases outside the “twilight zone.” See Hahn 9 v. Ross Island Sand & Gravel Co., 358 U.S. 272, 273 (1959); Hetzel v. Bethlehem Steel Corp., 50 F.3d 360 , 364-66 (5th Cir. 1995). Here, plaintiffs have pointed to no evidence that Mr. Pitre’s em ploym ent fell within the “‘twilight zone’ of concurrent jurisdiction between the LHWCA and state law workmen’s com pensation statutes.” Hetzel, 50 F.3d 360 at 364. Plaintiffs have instead indicated that they intend to m ake a claim under the LHWCA. 27 It is well established that a plaintiff m ay not pursue both LHWCA benefits and state tort claim s. See Hetzel, 50 F.3d at 367 (holding that the LHWCA preem pted a state statutory tort action when plaintiff applied for and received benefits under the LHWCA); Rosetti v. Avondale Shipy ards, Inc., 821 F.2d 10 83, 10 85 (5th Cir. 1987) (finding pipefitter’s state law negligence claim barred by the LHWCA); Melancon v. Am oco Prod. Co., 834 F.2d 1238, 1243 (5th Cir. 1988) (noting that the LHWCA “bars all com m on law tort actions against the employer”). Accordingly, plaintiffs’ state law claim s against Avondale and Lam orak are preem pted by the LHWCA, and these defendants are entitled sum m ary judgm ent. See Hetzel, 50 F.3d at 367. Because the Court grants sum mary judgm ent, plaintiffs’ m otion to voluntarily dism iss their claim s against Avondale and Lamorak is m oot. 27 R. Doc. 80 . 10 IV. CON CLU SION For the foregoing reasons, the Court GRANTS the m otion for sum m ary judgm ent. Plaintiffs’ state law claim s against Huntington Ingalls, Inc. and Lam orak Insurance Com pany are DISMISSED WITH PREJ UDICE. Further, the Court DENIES plaintiffs’ m otion for voluntary dism issal as m oot. New Orleans, Louisiana, this _30th _ day of April, 20 18. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 11
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