Thibodeau et al v. USA
Filing
43
RULING AND ORDER granting 30 Motion to Dismiss for Lack of Jurisdiction. The Clerk may close the case. Signed by Judge Robert N. Chatigny on 9/30/2015. (Rickevicius, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DENNIS THIBODEAU, et al.,
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Plaintiffs,
V.
UNITED STATES OF AMERICA,
Defendant.
Case No. 3:13CV00710 (RNC)
RULING AND ORDER
Plaintiffs Dennis and Frances Thibodeau bring this action
under the Federal Tort Claims Act ("FTCA") alleging that Mr.
Thibodeau was exposed to asbestos while a crew member on two
tugboats - the Hackensack and the Kelsey - that the Department of
the Navy leased to his employer, General Dynamics Corporation,
Electric Boat Division ("EB").
Mr. Thibodeau brings a products
liability claim under Conn. Gen. Stat. § 52-572m and Mrs.
Thibodeau brings a derivative loss of consortium claim.
Defendant has moved to dismiss the action, asserting principally
that the Court lacks jurisdiction over plaintiffs' claim under
the FTCA because the lawsuit sounds in admiralty, for which the
exclusive civil remedy against the United States is a suit under
the Suits in Admiralty Act ("SIAA") or the Public Vessels Act
("PVA") and with respect to which the two-year statute of
limitations has expired.
For reasons that follow, the motion to
dismiss [ECF No. 30] is granted and the case is dismissed.
1
I. Background
The amended complaint alleges the following.
At all
relevant times, Mr. Thibodeau was employed at EB as a member of
the crew of the Hackensack and the Kelsey, tugboats that EB
leased from the Department of the Navy.
¶¶ 6-9.
Am. Compl. (ECF No. 25)
The tugboats were sometimes in operation and sometimes
undergoing periods of repair, rip out, maintenance, shipbuilding
and overhaul, at which time they were not in operation or capable
of navigation.
Id. ¶ 6.
While employed on board the Hackensack
and the Kelsey, Mr. Thibodeau worked in areas where asbestos was
present, used and removed, including during periods of repair,
rip out, maintenance, shipbuilding and overhaul.
Id. ¶ 10.
He
was exposed to asbestos and other dusts and fumes, which caused
him to suffer injuries to his lungs and cardiopulmonary system.
Id.
Mr. Thibodeau’s product liability claim under Conn. Gen.
Stat. § 52-572m alleges that the defendant: designed,
manufactured, sold, leased and delivered products containing or
involving asbestos, with an inherent risk of harm; failed to
advise plaintiff of the dangers or recommend safety precautions;
failed to take steps to reduce exposure; and intentionally
misrepresented and concealed the dangers.
Mr. Thibodeau claims
that, as a result of theses acts and omissions, he sustained
asbestos-related lung disease and damage to his cardiopulmonary
2
system.
Mrs. Thibodeau’s loss of consortium claim alleges that
the illness and injuries her husband suffers as a result of his
exposure to asbestos deprive her of the affection, comfort,
service, society, support and consortium to which she is
entitled.
II. Motion to Dismiss
Defendant has moved to dismiss the action for lack of
subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1).
A plaintiff asserting subject matter jurisdiction has
the burden of proof on the issue.
See Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000).
Defendants argue that plaintiffs’ claims sound in admiralty
and thus the FTCA's waiver of sovereign immunity does not apply.
See 28 U.S.C. § 2680(d) ("The provisions of this chapter and
section 1346(b) of this title shall not apply to . . . [a]ny
claim for which a remedy is provided by chapter 309 or 311 of
title 46 relating to claims or suits in admiralty against the
United States.").
They contend that the exclusive remedy for
plaintiffs’ claims is provided by the Suits in Admiralty Act
("SIAA"), 46 U.S.C. § 30901 et seq., which waives sovereign
immunity for cases in which "if a vessel were privately owned or
operated, or if cargo were privately owned or possessed, or if a
private person or property were involved, a civil action in
admiralty could be maintained," § 30903, and the Public Vessels
3
Act ("PVA"), 46 U.S.C. § 31101 et seq., which waives sovereign
immunity for "damages caused by a public vessel of the United
States." § 31102.
See 46 U.S.C. § 30904 ("If a remedy is
provided by this chapter, it shall be exclusive of any other
action arising out of the same subject matter against the
officer, employee or agent of the United States . . . ."); 46
U.S.C. § 31103 ("A civil action under this chapter is subject to
the provisions of chapter 309 of this title except to the extent
inconsistent with this chapter."); Keene Corp. v. United States,
700 F.2d 836, 843 n.11 (2d Cir. 1983) ("These jurisdictional
bases [the SIAA, PVA and FTCA] are mutually exclusive.").
I
agree that plaintiffs' claims sound in admiralty and thus are not
cognizable under the FTCA.1
Two conditions must be met for federal admiralty
jurisdiction over a tort claim.
First, under the location test,
the Court "must determine whether the tort occurred on navigable
water or whether injury suffered on land was caused by a vessel
on navigable water."
Jerome B. Grubart, Inc. v. Great Lakes
Dredge & Dock Co., 513 U.S. 527, 534 (1995).
Second, under the
connection test, the Court must "assess the general features of
the type of incident involved to determine whether the incident
1
Because the Court lacks jurisdiction under the FTCA, I need
not consider whether plaintiffs have failed to submit
administrative tort claims within two years from the date they
accrued, as required by that statute, which defendant proffers as
an additional basis for dismissal.
4
has a potentially disruptive impact on maritime commerce" and
"must determine whether the general character of the activity
giving rise to the incident shows a substantial relationship to
traditional maritime activity."
Id. (internal quotations
omitted).2
As to the location test, "in the case of asbestos-related
disease arising from work on or around ships, . . . [the] test is
satisfied as long as some portion of the asbestos exposure
occurred on a vessel in navigable waters."
Conner v. Alfa Laval,
Inc., 799 F. Supp. 2d 455, 466 (E.D.Pa. 2011); see also Riddle v.
Foster Wheeler, LLC, MDL No. 875, 2012 WL 2914222, at *1 n.1
(E.D. Pa. May 25, 2012)("If a service member in the Navy
performed some work at shipyards (on land) or docks (on land) as
opposed to onboard a ship on navigable waters (which includes a
ship docked at the shipyard, and includes those in 'dry dock'),
2
Plaintiffs urge that the Court should apply the standard
set out by the Supreme Court in Executive Jet Aviation, Inc. v.
City of Cleveland, 409 U.S. 249 (1972), which referenced a
historic requirement that "the wrong and injury complained of
must have been committed wholly upon the high seas or navigable
waters," id. at 253, and explained that the injury must also
"bear a significant relationship to traditional maritime
activity." Id. at 268. The two-part test outlined by the
Supreme Court twenty-three years later in Grubart, however, is
the applicable test for admiralty tort jurisdiction. E.g.,
Tandon v. Captain's Cove Marina of Bridgeport, Inc., No. 13-461,
2014 WL 2016551, at *6 (2d Cir. May 19, 2014) (explaining that
"the Court restated and formalized the current test for admiralty
tort jurisdiction" in Grubart).
5
the locality test is satisfied as long as some portion of the
asbestos exposure occurred on a vessel on navigable waters.
If,
however, the worker never sustained asbestos exposure onboard a
vessel on navigable waters, then the locality test is not met and
state law applies.") (internal citations omitted); Mazzaia v.
A.O. Smith Corp., CV115029478S, 2013 WL 1224024, at *2 (Conn.
Super. Ct. Mar. 7, 2013) ("The party invoking maritime
jurisdiction, however, must make an evidentiary showing in order
to demonstrate, by a preponderance of the evidence, that at least
some of the alleged exposure occurred on a vessel on navigable
waters.").
In the present case, the record clearly establishes that
some of the asbestos exposure occurred on a vessel in navigable
waters.
The amended complaint alleges that exposure to asbestos
occurred while Mr. Thibodeau was working as a crew member on the
Hackensack and the Kelsey, "which at times were in operation and
at other times[] were undergoing periods of repair . . . and were
not in operation."
Am. Compl. (ECF No. 25) at ¶ 6.
See also id.
¶ 10 ("At all relevant times and while employed on board the
Hackensack and Kelsey, Mr. Thibodeau worked in areas where
asbestos products were present, used, and removed, including
during periods of repair, rip out, maintenance, shipbuilding and
overhaul and when the tugboats or entities were not in operation
or practically capable of navigation, and he was exposed to
6
asbestos and other dusts and fumes . . . .").
Indeed, the
original complaint alleged that "[a]t all relevant times hereto,
Mr. Dennis Thibodeau was employed at General Dynamics
Corporation, Electric Boat Division at its shipyard in Groton,
Connecticut as a member of the crew of vessels known as the
Hackensack and the Kelsey which were tugboats in operation,"
Compl. (ECF No. 1) ¶ 6, and asserted that "[a]t all relevant
times and while employed on board the Hackensack and Kelsey, Mr.
Thibodeau worked in areas where asbestos products were present
and used and he was exposed to asbestos . . . ."
Id. ¶ 10.
Moreover, Mr. Thibodeau filed suit in this Court on June 26,
2008, asserting admiralty jurisdiction over claims against his
employer, alleging injuries to his lungs and cardiovascular
system from asbestos exposure while employed as a crew member of
the Hackensack and Kelsey.
See Thibodeau v. General Dynamics
Corp. et al., No. 3:08-cv-00964 (SRU); id. Compl.(ECF No. 1) ¶¶
3-6 (alleging that at all relevant times the Hackensack and the
Kelsey were vessels engaged in hauling operations on waterways).
Mr. Thibodeau testified at his deposition that the Hackensack was
"loaded" with asbestos, including in the galley, where the
exhaust pipe for the engine was, and in the piping for the
engine.
See Dep. of Dennis Thibodeau, Def.'s Ex. A at 18:15-19:2
(ECF No. 36-2 at 18-19).
He further testified that there weren't
"too many major breakdowns" during his employment.
7
Id. at 20:13-
20:14 (ECF No. 36-2 at 20).
Letters submitted from physicians to
plaintiff's counsel in support of his administrative tort claim
confirmed that the alleged exposure to asbestos was not limited
to periods of major repairs.
See Letter from John A. Pella, M.D.
to Plaintiffs' Counsel (Dec. 19, 2008 ), Def.'s Ex. 6 at (filed
under seal) (noting Mr. Thibodeau's description of asbestos dust
exposure from deteriorating insulation on the Hackensack); Letter
from Susan M. Daum, M.D., to Plaintiffs' Counsel (Jan. 21, 2009),
Def.'s Ex. 7 at 6 (filed under seal)(describing exposure to
asbestos on board the Hackensack from the engines, exhaust, and
pipes in addition to repair work on asbestos-covered piping and
equipment).
Plaintiffs argue that admiralty jurisdiction does not apply
because "Mr. Thibodeau suffered significant exposure to asbestos
during periods of major repair and overhaul on the Hackensack"
during which the vessel was "inoperable and not capable of
navigation."
1) at 3.
Pls.' Mem. in Opp'n to Mot. to Dismiss (ECF No. 36-
It is beyond reasonable dispute, however, that at all
other times the Hackensack and the Kelsey were vessels in
navigable waters and Mr. Thibodeau was a seaman eligible to
recover damages for admiralty claims.3
3
The Supreme Court has explained that "[a] ship and its
crew do not move in and out of Jones Act coverage [which permits
seamen to bring actions for damages resulting from personal
injury in the course of employment] depending on whether the ship
is at anchor, docked for loading or unloading, or berthed for
8
Accordingly, because "some portion of the asbestos exposure
occurred on a vessel in navigable waters," the locality test is
satisfied regardless of whether certain major repairs rendered
the Hackensack no longer a vessel in navigation.4
Regarding the connection test, exposure to asbestos by crew
members during repair and construction of vessels on navigable
waters has the potential to disrupt maritime commerce and bears a
substantial relationship to maritime activity.
See, e.g., Hammer
v. A.L. Burbank & Co., Inc., CV095026285S, 2013 WL 3871415, at *3
(Conn. Super. Ct. July 8, 2013) (plaintiff's exposure to asbestos
while working as a merchant marine and boiler inspector had
minor repairs. . . ." Stewart v. Dutra Const. Co., 543 U.S. 481,
494, (2005); see also Chandris, Inc. v. Latsis, 515 U.S. 347, 361
(1995) ("seamen do not lose Jones Act protection when the course
of their service to a vessel takes them ashore"); id. at 374
(explaining that "it is generally accepted that a vessel does not
cease to be a vessel when she is not voyaging, but is at anchor,
berthed, or at dockside, even when the vessel is undergoing
repairs" but acknowledging that at some point "repairs become
sufficiently significant that the vessel can no longer be
considered in navigation."). Plaintiffs assert that the
Hackensack underwent major repairs sufficient to remove it from
navigation at certain times during Mr. Thibodeau's employment, a
contention that defendant disputes. Admiralty jurisdiction is
appropriate nonetheless, however, where, as here, at least some
of the asbestos exposure occurred while the tugboat was
undisputedly a vessel on navigable water.
4
For this reason, the discovery that plaintiffs seek
related to "the frequency, duration, and nature, extent and
significance of the overhauls, rip-outs and repairs" and other
information regarding whether the tugboats were "in navigation"
during such periods, see Pls.' Mem. in Opp'n to the Mot. to
Dismiss (ECF No. 36-1) at 17-18, would not affect the Court's
ruling.
9
potentially disruptive impact on maritime commerce because it
could slow work performance, create unsafe working conditions and
establish labor shortages, and products alleged to contain
asbestos had a substantial relationship to traditional maritime
activity because they were essential for proper functioning of
ships and were manufactured for that purpose); Conner v. Alfa
Laval, Inc., 799 F. Supp. 2d 455, 467-69 (E.D. Pa. 2011)(exposure
to allegedly defective products on or around vessels that
routinely sailed and docked on navigable waters and connected to
maintenance work integral to the functioning of the ships had a
potentially disruptive impact on maritime commerce unless
predominantly land-based worker; allegedly defective products
bear substantial relationship to traditional maritime activity if
essential to the proper functioning of ships and made for that
purpose).
As discussed above, the allegations of the complaint and the
evidence offered by plaintiff do not permit the Court to find
that Mr. Thibodeau was primarily a land-based worker or that his
exposure to asbestos occurred exclusively on tugboats that were
no longer vessels in navigation.
Therefore, plaintiffs' claims
are cognizable in admiralty and the Court lacks jurisdiction
under the FTCA.
Amendment of the complaint to assert admiralty jurisdiction
would be futile because this suit was not filed within two years
10
from the date of injury as required by the applicable statutes of
limitations.
See 46 U.S.C. § 30905 ("A civil action under this
chapter must be brought within 2 years after the cause of action
arose."); § 31103 ("A civil action under this chapter is subject
to chapter 309 of this title except to the extent inconsistent
with this chapter.").
Plaintiffs initiated this action on May
16, 2013, more than six years after the November 9, 2006 injury
date provided by Mr. Thibodeau in his administrative tort claim.
Moreover, even if equitable tolling were available,5 it would not
be warranted on the basis of the filing of an administrative
claim under the FTCA.
E.g., Ayers v. United States, 277 F.3d
821, 828-29 (6th Cir. 2002) (equitable tolling not warranted even
though admiralty jurisdiction over matter not settled as a matter
of law because it was well-established that filing of
administrative claim under FTCA would not toll limitations period
under SIAA, diligent research would have revealed possible claim
5
It appears that equitable tolling of the SIAA and PVA is
not available in this Circuit. See Corbett v. United States, 96
CV 3762 (SJ), 1997 WL 215699 (E.D.N.Y. Apr. 28, 1997)(explaining
that the Second Circuit has held that the SIAA statute of
limitations cannot be tolled because it is a conditional waiver
of sovereign immunity); Epshteyn v. United States, 657 F. Supp.
255, 256 (S.D.N.Y. 1987) aff'd, 838 F.2d 1202 (2d Cir. 1987)
("Under the limitation period of the PVA, if suit is not filed
within two years, the claim is extinguished. Because the two-year
limitation period of the PVA is jurisdictional, it cannot be
waived or tolled.").
11
under SIAA and that limitations period would most likely not be
tolled, and plaintiff could have requested relief under both Acts
in the initial complaint).
III. Conclusion
Accordingly, the motion to dismiss for lack of subject
matter jurisdiction is hereby granted.
The Clerk may enter
judgment and close the case.
So ordered this 30th day of September 2015.
________________/s/________________
Robert N. Chatigny
United States District Judge
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