Bell v. Foster Wheeler Energy Corporation, et al

Filing 435

ORDER AND REASONS granting in part and denying in part 369 Motion for Partial Summary Judgment. Signed by Judge Lance M Africk. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM C. BELL ET AL.

CIVIL ACTION

VERSUS

No. 15-6394

FOSTER WHEELER ENERGY
CORP. ET AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion 1 for partial summary judgment filed by all of the
defendants except Crane Company. They request summary judgment on several
issues. For the following reasons, the motion is granted in part and denied in part.
I.
Summary judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any affidavits, the court determines
there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party seeking
summary judgment always bears the initial responsibility of informing the district
court of the basis for its motion and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not
produce evidence negating the existence of material fact, but need only point out the
absence of evidence supporting the other party’s case. Id.; Fontenot v. Upjohn Co.,
780 F.2d 1190, 1195 (5th Cir. 1986).
1

R. Doc. No. 369.

Once the party seeking summary judgment carries its burden pursuant to Rule
56, the nonmoving party must come forward with specific facts showing that there is
a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine dispute is not
satisfied by creating “some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a
genuine dispute of material fact exists when the “evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment
may not rest upon the pleadings, but must identify specific facts that establish a
genuine dispute. Id. The nonmoving party’s evidence, however, “is to be believed,
and all justifiable inferences are to be drawn in [the nonmoving party’s] favor.” Id.
at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
II.
Before beginning the analysis, a brief word on the difference between wrongful
death claims and survival claims in the maritime context is warranted. As the Fifth
Circuit explained in Miles v. Melrose, 882 F.2d 976, 985 (5th Cir. 1989):
In a survival action, the estate or successors of a deceased person are allowed
to prosecute a claim for personal injury that the deceased himself would have
had but for his death. In a wrongful death action, the victim’s dependents, not
the victim, are allowed to recover for the harms they personally suffered as a
result of the death, independent of any action the decedent may have had for

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his own personal injuries. Neither cause of action was permitted at common
law, which followed the rule that personal tort actions died with the plaintiff.
With that basic understanding in mind, the Court addresses each of the defendants’
arguments in turn.
III.
Defendants first move for summary judgment as to all claims asserted by
decedent’s brother John Bell (“Bell”). See R. Doc. No. 369, at 1. They argue that
under the Death on the High Seas Act (“DOHSA”), 46 U.S.C. § 30301 et seq., Bell
lacks standing to pursue either a wrongful death claim or a survival claim.
The argument for dismissal of the wrongful death claim is premised on 46
U.S.C. § 30302, which provides: “When the death of an individual is caused by
wrongful act, neglect, or default occurring on the high seas beyond 3 nautical miles
from the shore of the United States, the personal representative of the decedent may
bring a civil action in admiralty against the person or vessel responsible. The action
shall be for the exclusive benefit of the decedent’s spouse, parent, child, or dependent
relative.” (emphasis added). The argument for dismissal of the survival claim is
premised on the U.S. Supreme Court’s decision in Dooley v. Korean Air Lines Co.,
Ltd., 524 U.S. 116, 118 (1998), which held that survival claims are not permitted in
DOHSA actions.
Plaintiffs respond that since their claims are governed by general maritime
law and not DOHSA, 46 U.S.C. § 30302 and the Supreme Court’s Dooley decision are
inapposite.

Nevertheless, plaintiffs admit that under general maritime law the

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wrongful death claim must be asserted by plaintiff Vickie Campos (“Campos”)—the
executrix of the decedent’s estate—on Bell’s behalf. See R. Doc. No. 372, at 15 (“As
noted above, Campos, as representative of William Bell’s estate, is a proper party to
recover on behalf of Bell, a wrongful death beneficiary.”). They argue that the reason
Bell was joined as a plaintiff was because he is the proper party to assert wrongful
death and survivor claims for the exposures that occurred in Idaho. See R. Doc. No.
372, at 15 (“John Bell is a proper party for those exposures occurring at the Idaho
facility regardless of whether Idaho law or Louisiana law is applied.”).
The confusion regarding which plaintiff is asserting which claim can be traced
to the plaintiffs’ third amended complaint. After William Bell passed away, Bell and
Campos joined the lawsuit seeking “to assert any and all rights and claims to which
they are entitled as a result of the injuries and death of William Bell, as well as to
assert any and all survival and wrongful death claims to which they are entitled.”
See R. Doc. No. 111, at 1. The complaint does not specify which claims Bell is
pursuing and which claims Campos is pursuing.
It is now clear from the briefing that all parties agree that Bell cannot himself
assert a wrongful death claim or a survival claim based on the exposures William Bell
allegedly sustained on ships. Those claims must be pursued by Campos, the executrix
of William Bell’s estate. See Manson Gulf LLC v. Modern Am. Recycling Serv. Inc.,
No. 15-3627, 2016 WL 3020843, at *1 (E.D. La. May 26, 2016) (Barbier, J.) (“It is well
settled that only the personal representative of the decedent has standing to bring an

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action for wrongful death or survival under the general maritime law.” (citation
omitted)).
It is also clear that with respect to the alleged Idaho exposures, Bell is the
appropriate party to assert the claims regardless of whether Louisiana law or Idaho
law applies (an issue which will be decided in a separate order). Compare Idaho Code
Ann. § 5-311(1) (“When the death of a person is caused by the wrongful act or neglect
of another, his or her heirs or personal representatives on their behalf may maintain
an action for damages against the person causing the death . . . .”) with La. Civ. Code
arts. 2315.1 (survival action) and 2315.2 (wrongful death action); see also Turner v.
Busby, 883 So. 2d 412, 416 (La. 2004) (holding that in Louisiana, “[t]o recover under
a claim for wrongful death and survival, a plaintiff must fall within the class of
persons designated as a beneficiary as prescribed by La. Civ. Code arts. 2315.1 and
2315.2.”). 2
But the parties still dispute whether—irrespective of whether the claim is
advanced by Bell or by Campos—a survival action is permitted for the asbestos
exposures that occurred on ships. On this issue, the Court agrees with the plaintiffs
that general maritime law and not DOHSA applies. Indeed, there is evidence in the
record that William Bell’s exposures occurred both on the high seas (more than 3
nautical miles from shore) and in territorial waters. See, e.g., R. Doc. No. 372-3, at
15 (William Bell’s deposition testimony that roughly 40% of his Navy service was

As discussed in the Court’s order regarding choice of law, Idaho does not permit
survival actions.

2

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spent at sea and 60% of his service was spent working on ships in port). Defendants
do not challenge that evidence.
As other courts have recognized, where a seaman dies from an indivisible
injury which occurred both in territorial waters and on the high seas, Dooley’s
prohibition on survival actions in DOHSA cases does not apply and the plaintiff may
pursue a survival action under general maritime law. See Hays v. John Crane, Inc.,
No. 09-81881, 2014 WL 10658453, at *2 (S.D. Fla. Oct. 10, 2014) (“The Court is
unaware of any case that has held that DOHSA restricts the recoverable damages for
an indivisible injury in a case where some of the exposure to asbestos-containing
products occurred on the high seas and some occurred in territorial waters.”); John
Crane, Inc. v. Hardick, 732 S.E.2d 1, *3 (Va. 2012) (applying general maritime law to
allow a survival claim where the decedent’s asbestos exposure during his Navy
service occurred both in territorial waters and on the high seas). 3 The Court is in
agreement with those cases, and it has not been directed to any on-point authority
suggesting a contrary result.

Accordingly, the survival claim is not barred by

DOHSA. This part of the motion for summary judgment is denied.
IV.
Defendants next move for summary judgment as to “[a]ll claims asserted by
Vickie G. Campos in her personal capacity, and not her capacity as personal

See also Smith v. Ithaca Corp., 612 F.2d 215, 226 (5th Cir. 1980), abrogated on other
grounds by Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) (holding that survivors
can recover under general maritime law where the decedent’s benzene exposures
occurred both on the high seas and in territorial waters).
3

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representative of Decedent, because Ms. Campos has no personal right or cause of
action for wrongful death, loss of consortium, or any other damages in her personal
capacity under the general maritime law applicable to this case.” R. Doc. No. 369,
at 1.
It is undisputed that Campos is William Bell’s personal representative for
purposes of the administration of his estate. See R. Doc. No. 369-1, at 1. She was not
William Bell’s spouse and she is not his relative. Defendants state that Campos was
William Bell’s girlfriend, a characterization which the plaintiffs do not contest.
Nonetheless, the third amended complaint states that Campos is pursuing claims
“individually and as the executrix and personal representative of the estate of
William Bell.” See R. Doc. No. 111, at 1 (emphasis added).
As she is neither related to William Bell nor was she his spouse, the Court is
aware of no authority which would allow Campos to recover in her personal capacity
under either Louisiana law, Idaho law, or general maritime law.

Further, the

plaintiffs do not attempt to contest the defendants’ arguments. Accordingly, the
motion for summary judgment as to all claims asserted by Campos in her individual
capacity is granted.
V.
Third, defendants argue that Bell cannot recover any damages for wrongful
death because he was not a “dependent relative” of William Bell.

While the

defendants’ arguments are premised on the applicability of DOHSA to this action,

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which the Court has already held does not apply, the arguments are nevertheless
addressed under the general maritime law framework.
Bell and his brother, William Bell, were roommates prior to William Bell’s
diagnosis of mesothelioma.

Because of his age, Bell is unable to live without

assistance. When William Bell moved from the family home in Metairie, Louisiana
to undergo treatment in Houston, Texas, Bell claims he was forced to move into an
assisted-living facility. As defendants admit, there is evidence in the record that it
was more expensive for Bell to live in the assisted-living facility than it was for him
to live in the family’s prior home with his brother. See R. Doc. No. 372-10.
The plaintiffs argue that the increase in Bell’s living expenses is compensable
under general maritime law. Further, although the plaintiffs’ brief does not explicitly
state that Bell suffered nonpecuniary losses such as grief or mental anguish as the
result of his brother William’s death, the brief does argue that such nonpecuniary
damages are available under general maritime law. See R. Doc. No. 372, at 13-14
(relying primarily on Collins v. A.B.C. Marine Towing, L.L.C., No. 14-1900, 2015 WL
5254710 (E.D. La. Sept. 9, 2015) (Fallon, J.)). As Bell is the only plaintiff who would
potentially be in a position to recover nonpecuniary damages on a wrongful death
claim, the Court assumes that plaintiffs seek such damages for Bell.
A.
First, because William Bell was a seaman, nonpecuniary losses are not
recoverable on the wrongful death claim under general maritime law. See, e.g., Lewis
v. Noble Drilling Servs., Inc., No. CV 15-1018, 2016 WL 3902597, at *3 (E.D. La. July
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19, 2016) (Morgan, J.) (“In light of the Supreme Court’s and the Fifth Circuit’s
precedents, it is clear a Jones Act seaman or his or her representative cannot recover
nonpecuniary losses for wrongful death under the Jones Act or the general maritime
law.”); Savoie v. Chevron Texaco, No. 04–1302, 2005 WL 2036740, at *2 (E.D. La. July
22, 2005) (collecting cases). Since his decision in Collins (the opinion on which
plaintiffs rely), Judge Fallon has also concluded that “in wrongful death cases brought
under general maritime law, a survivor’s recovery from employers and non-employers
is limited to pecuniary losses.” See Wade v. Clemco Indus. Corp., No. 16-502, 2017
WL 434425, at *5 (E.D. La. Feb. 1, 2017) (Fallon, J.). These decisions spring largely
from the Supreme Court’s opinion in Miles v. Apex Marine Corp., 498 U.S. 19 (1990),
and the Fifth Circuit’s en banc opinion in McBride v. Estis Well Serv., L.L.C., 768
F.3d 382 (5th Cir. 2014). This Court agrees with the legal analysis enumerated by
Judges Morgan and Fallon in Lewis and Wade.
However, it is important to recognize that if the decedent was not a seaman,
the Supreme Court’s decision in Yamaha Motor Corp. v. Calhoun, 516 U.S. 199
(1996), allows general maritime law remedies to be supplemented with applicable
state law remedies. See Yamaha, 516 U.S. at 214-15 (drawing a distinction between
“seafarers” and “nonseafarers,” and holding that the general maritime wrongful
death action does not preempt state remedies in cases involving the death of a
nonseafarer in territorial waters). Accordingly, if William Bell was considered a
seaman, then Bell is limited to only those damages available under general maritime
law. See Savoie, 2005 WL 2036740 at *3 (“Whether Mrs. Savoie and her children can

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maintain a claim for non-pecuniary damages depends on whether Merlin Savoie
qualifies as a [seaman].”).
The Court finds, based on the undisputed record evidence, that William Bell
was a seaman as set forth in McDermott International, Inc. v. Wilander, 498 U.S. 337
(1990). There, the Supreme Court recognized that in order to be considered a seaman
“[i]t was only necessary that a person be employed on board a vessel in furtherance
of its purpose,” and that “[a]ll who work at sea in the service of a ship” or those who
“contribut[e] to the function of the vessel or to the accomplishment of its mission” are
seamen. 498 U.S. at 347, 354-55. Unquestionably, William Bell—who worked as an
engineman, machinery repairman, and machinist mate aboard various U.S. Navy
ships—met this definition. The plaintiffs appear to concede as much. See R. Doc. No.
372, at 2 n.1 (characterizing William Bell as a “Navy sailor”); R. Doc. No. 372, at 9
(seeking to take advantage of Crane, 2014 WL 10658453, at *3, whose holding turned
in part on the decedent’s seaman status). Accordingly, under general maritime law,
Bell may not recover nonpecuniary damages he suffered as a result of William Bell’s
death. 4 The motion for summary judgment as to this claim is granted.

Even if nonpecuniary damages were available, there is no evidence in the record
that Bell sustained such damages here. The party seeking summary judgment need
not produce evidence negating the existence of material fact, but need only point out
the absence of evidence supporting the other party’s case. Celotex Corp., 477 U.S. at
323. Once the party seeking summary judgment carries its burden pursuant to Rule
56, the nonmoving party must come forward with specific facts showing that there is
a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co., 475 U.S. at
587. The plaintiffs have not offered any evidence in support of their claim that Bell
sustained nonpecuniary damages.

4

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B.
As stated above, under general maritime law a survivor may recover pecuniary
losses incurred as a result of the decedent’s death. See Wade, 2017 WL 434425 at *5.
Recoverable pecuniary losses include “loss of support” and “loss of household
services.” See Neal v. Barisich, Inc., 707 F. Supp. 862, 868-69 (E.D. La.), aff’d, 889
F.2d 273 (5th Cir. 1989); see also Complaint of Patton-Tully Transp. Co., 797 F.2d
206, 213 (5th Cir. 1986) (“Where a family unit is maintained by dependence on a
single family member, each of the dependents may recover for their losses in a . . .
wrongful death claim under general maritime law.”).
There is sufficient evidence in the record to allow Bell’s wrongful death claim
for pecuniary damages to go forward. Defendants admit that there is evidence in the
record that Bell’s living expenses increased as the result of his brother’s death. See
R. Doc. No. 372-10. The Patton-Tully case cited above makes clear that surviving
siblings may be considered dependents. See Patton-Tully Transp. Co., 797 F.2d at
212-213. Bell’s loss of services, if proven, may be compensable. The motion for
summary judgment on Bell’s wrongful death claim for pecuniary damages is denied.
VI.
Finally, defendants move for summary judgment as to “[a]ll claims for nonpecuniary damages for wrongful death or Decedent’s pre-death pain and suffering
asserted by Plaintiffs as no such damages are recoverable under the maritime law
applicable to this case.” R. Doc. No. 369, at 2. The Court has already held that Bell’s

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alleged nonpecuniary damages are not recoverable. The question is now whether
decedent William Bell’s nonpecuniary damages are recoverable in a survival action
under general maritime law.
“[T]here can be no question that injured seamen can seek recovery for their
own pain and suffering under the Jones Act and the general maritime law.” McBride,
768 F.3d at 424 (Higginson, J., dissenting) (citing Douse v. Global Pipelines Plus, 253
Fed. App’x. 342 (5th Cir. 2007)). Further, under the Jones Act, the decedent’s estate
can bring a survival action to recover all losses suffered during the decedent’s
lifetime. See 45 U.S.C. § 59 (incorporated by reference into the Jones Act per 46
U.S.C. § 30104). While only pecuniary losses are available under the Jones Act, the
term “pecuniary” has been extended beyond its typical meaning to encompass the
decedent’s pain and suffering. See In re Denet Towing Serv., Inc., No. 98-1523, 1999
WL 329698, at *4 (E.D. La. May 21, 1999).
Turning to the general maritime law context, the Court rejects plaintiffs’
argument that nonpecuniary damages are recoverable in a survival action.
Significantly, the most recent case the plaintiffs cite in their briefing on this issue
dates from 2008. See R. Doc. No. 372, at 10-12. As such, their arguments do not
account for significant Supreme Court and Fifth Circuit decisions in this area which
have been decided since that time. See, e.g., Atlantic Sounding Co. v. Townsend, 557
U.S. 404 (2009); McBride, 768 F.3d at 384 (en banc). As other sections of this Court
have recently recognized and clarified, in survival actions brought under general
maritime law, recovery from employers and non-employers alike is limited to

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pecuniary losses. See Wade, 2017 WL 434425, at *5 (“Although the result may be
different under another body of law, the Fifth Circuit has now made it clear that
under both the Jones Act and general maritime law, a [deceased] seaman’s damages
against both employers and non-employers are limited to pecuniary losses.”); see also
Lewis, 2016 WL 3902597 at *5 (Morgan, J.) (“Further, the Court notes that the Fifth
Circuit’s decision in [Scarborough v. Clemco Industries, Inc., 391 F.3d 660 (5th Cir.
2004)], which held that a Jones Act seaman, or his survivors, may not recover
nonpecuniary damages against either his employer or a non-employer, is binding on
this Court and has never been overruled.”).
Accordingly, only pecuniary damages are available in a survival action under
general maritime law. Nevertheless, the question remains whether damages for the
decedent’s pre-death pain and suffering are pecuniary or nonpecuniary. As noted
above, such damages are considered to be pecuniary in the context of a Jones Act
claim. See Denet Towing, 1999 WL 329698 at *4; see also Miles, 498 U.S. at 22
(allowing the plaintiff’s estate to recover for the pre-death pain and suffering of the
decedent seaman). The Court finds that claims for pre-death pain and suffering
should be treated similarly under general maritime law. The relevant case law
supports this view. See Neal, 707 F. Supp. at 867 (holding that damages for pre-death
pain and suffering “are considered pecuniary damages, recoverable as survival
damages to the decedent’s estate under both the Jones Act and general maritime law”
(citing De Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138, 141 (5th Cir. 1986)
(classifying damages for “predeath pain and suffering” as “pecuniary”)). Further,

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though admittedly strange when compared with the usual understanding of the term
“nonpecuniary,” this view comports with the traditional maritime classification of
pre-death pain and suffering as a pecuniary loss.
In short, although the defendants focus on DOHSA, the Court agrees with
defendants that nonpecuniary damages may not be recovered in a survival action
under general maritime law. Nevertheless, because damages for the decedent’s predeath pain and suffering are considered pecuniary damages in the maritime context,
such damages may be recoverable with regard to the survival claim. Defendants’
motion for summary judgment as to this issue is therefore denied.
VII.
For the foregoing reasons,
IT IS ORDERED that the defendants’ motion is GRANTED IN PART and
DENIED IN PART as set forth herein.

New Orleans, Louisiana, March 6, 2017.

_________________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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