Pitre et al v. Huntington Ingalls Inc et al

Filing 95

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)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DIANE PITRE, ET AL.

CIVIL ACTION

VERSUS

NO. 17-7029

HUNTINGTON INGALLS, INC., ET
AL.

SECTION “R” (5)

ORDER AND REASONS
Defendants Lamorak Insurance Company and Huntington Ingalls, Inc.
move for summary judgment.1

Plaintiffs move to dismiss their claims

against these defendants without prejudice.2 For the following reasons, the
Court grants summary judgment and denies plaintiffs’ motion as moot.

I.

BACKGROUND
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 July 15,
2016. 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.

On April 6, 2017, Mr. Pitre’s wife and children filed suit in state court
asserting claims for wrongful death and survival under Louisiana law. 6
Plaintiffs named numerous defendants, including Huntington Ingalls, Inc.
(Avondale) and Lamorak Insurance Company.7 Plaintiffs alleged that Mr.
Pitre was exposed to asbestos during his employment at Avondale, and that
his injuries were caused by the negligence of Avondale and three deceased
Avondale executive officers.8 Lamorak was sued as the alleged insurer of
Avondale and its executive officers. 9
On July 24, 2017, Avondale and Lamorak removed this action on the
basis of federal officer jurisdiction.10 Plaintiffs filed a contested motion to
amend their complaint, which the Magistrate Judge granted. 11 Plaintiffs also
moved to remand to state court. 12 On December 6, 2017, the Court denied
Avondale and Lamorak’s motion to review the Magistrate Judge’s order, and
denied plaintiffs’ motion to remand.13

R. Doc. 4-1.
Id. at 1-3. Lamorak Insurance Company was incorrectly designated
as One Beacon America Insurance Company. Huntington Ingalls was
formerly 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
6
7

Avondale and Lamorak now move for summary judgment. 14 Plaintiffs
move to voluntarily dismiss their claims against these two defendants
without prejudice.15

II.

LEGAL STANDARD
Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter 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 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any material
fact exists, the Court considers “all of the evidence in the record but refrain[s]
from making credibility determinations or weighing the evidence.” Delta &
Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99
(5th Cir. 2008).

All reasonable inferences are drawn in favor of the

nonmoving party, but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are insufficient to either
support or defeat a motion for summary judgment.” Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at
1075. “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-moving party.” EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must 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 omitted). The nonmoving party can
then defeat the motion by either countering with evidence sufficient to
demonstrate the existence of a genuine dispute of material fact, or “showing
that the moving party’s evidence is so sheer that it may not persuade the
reasonable fact-finder to return a verdict in favor of the moving party.” Id.
at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at
325.

The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
4

trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of
summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element 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. DISCUSSION
Avondale and Lamorak move for summary judgment on the grounds
that plaintiffs’ claims 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 motion. Instead, they move
for dismissal 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 Lamorak. 18 Defendants Foster
Wheeler LLC, CBS Corporation, and General Electric Company support
plaintiffs’ motion for voluntary dismissal, and ask the Court not to rule on
the summary judgment motion. 19
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
dismissed under Federal Rule of Civil Procedure 41(c). See R. Doc. 88.
5
16
17

Rule 41(a)(2) permits a plaintiff to dismiss her claims “only by court
order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2).
Dismissal without prejudice is not justified when a request for voluntary
dismissal is “intended to avoid an imminent adverse result on summary
judgment.” Harris v. Devon Energy Prod. Co., LP, 500 F. App’x 267, 269
(5th Cir. 2012); see also In re FEMA Trailer Formaldahyde Prod. Liab.
Litig., 628 F.3d 157, 162 (5th Cir. 2010). Avondale and Lamorak’s motion
for summary judgment was submitted to the Court two weeks before
plaintiffs’ motion to dismiss.20 The Court thus finds it appropriate to first
consider the summary judgment motion. 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’
compensation law that requires employers to provide compensation to

R. Doc. 65; R. Doc. 80.
In their response to plaintiffs’ Rule 41(a)(2) motion, Foster Wheeler,
General Electric, and CBS request a new briefing schedule on the summary
judgment motion because the motion is currently unopposed. See R. Doc.
86 at 3-4. The Court addressed this issue at the February 23, 2018
preliminary conference after plaintiffs’ counsel indicated that plaintiffs
might move for voluntary dismissal. The Court declined to extend the
briefing schedule on the summary judgment motion and instructed any
party that opposed summary judgment to file an opposition by the March 6,
2018 deadline. Foster Wheeler, General Electric, and CBS failed to file a
timely opposition, and the Court finds no good cause to reopen briefing.
22
R. Doc. 65.
6
20
21

covered employees irrespective of fault.

See 33 U.S.C. § 904; see also

Fontenot v. AWI, Inc., 923 F.2d 1127, 1132 (5th Cir. 1991). The Act represents
a compromise between the concerns of workers and their employers, in
which “[e]mployers relinquished their defenses to tort actions in exchange
for limited and predictable liability.” Morrison-Knudsen Constr. Co. v. Dir.,
Ofifce of Workers’ Comp Programs, 461 U.S. 625, 636 (1983). On their part,
workers accept limited damages 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
Lamorak are covered by the LHWCA. The Act provides for death benefits to
the widow and children of an employee who dies from a covered injury. See
33 U.S.C. § 909. To recover benefits under the Act, a claimant must satisfy
both “status” and “situs” elements. See New Orleans Depot Servs., Inc. v.
Dir. Office of Worker’s Comp. Programs, 718 F.3d 384, 389 (5th Cir. 2013).
Mr. Pitre meets the “status” requirement because he was employed by
Avondale as a pipefitter aboard vessels being built or repaired at Avondale
Shipyard.23 See 33 U.S.C. § 902(3) (defining employee to include “any
harbor-worker including a ship repairman, shipbuilder”); see also
Chesapeake & Ohio Ry. Co. v. Schwalb, 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” requirement 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 customarily used by an employer in loading,
unloading, repairing, dismantling, or building a vessel).” 33 U.S.C. § 903(a);
see also New Orleans Depot Servs., 718 F.3d at 393-94 (adopting “definition
of ‘adjoining’ navigable water to mean ‘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 employer and co-employees.

Specifically, the Act

provides that “[t]he liability of an employer prescribed in section 904 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

The post-1972 provisions of the LHWCA apply to plaintiffs’ claims
because Mr. Pitre’s “time of injury” under the Act is the date that his alleged
latent injury manifested itself. See 33 U.S.C. § 910(i); Castorina v. Lykes
Bros. S.S. Co., Inc., 758 F.2d 1025, 1031 (5th Cir. 1985). Mr. Pitre was
diagnosed with lung cancer in April 2016. 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
24

otherwise entitled to recover damages from such employer at law or in
admiralty on account of such injury or death.” 33 U.S.C. § 905(a). The Act
also provides the exclusive remedy for injuries caused by the negligence or
wrongful act of an officer or employee of the employer. 33 U.S.C. § 933(i).
These provisions cover plaintiffs’ claims against Avondale and its executive
officers, as well as claims against Lamorak in its capacity as their insurer.
See Perron v. Bell Maint. & Fabricators, Inc., 970 F.2d 1409, 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 Supreme Court has recognized concurrent jurisdiction
between the LHWCA and state workers’ compensation laws in the “twilight
zone” where state and federal compensation schemes meet. See Sun Ship,
447 U.S. at 718 (citing Davis v. Dep’t of Labor & Indus. of Wash., 317 U.S.
249, 256 (1942)).

Concurrent jurisdiction is warranted in such cases

because, under a regime of mutually 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 limitations.” Id. But the LHWCA
remains the exclusive remedy 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
employment fell within the “‘twilight zone’ of concurrent jurisdiction
between the LHWCA and state law workmen’s compensation statutes.”
Hetzel, 50 F.3d 360 at 364. Plaintiffs have instead indicated that they intend
to make a claim under the LHWCA. 27 It is well established that a plaintiff
may not pursue both LHWCA benefits and state tort claims. See Hetzel, 50
F.3d at 367 (holding that the LHWCA preempted a state statutory tort action
when plaintiff applied for and received benefits under the LHWCA); Rosetti
v. Avondale Shipyards, Inc., 821 F.2d 1083, 1085 (5th Cir. 1987) (finding
pipefitter’s state law negligence claim barred by the LHWCA); Melancon v.
Amoco Prod. Co., 834 F.2d 1238, 1243 (5th Cir. 1988) (noting that the
LHWCA “bars all common law tort actions against the employer”).
Accordingly, plaintiffs’ state law claims against Avondale and Lamorak
are preempted by the LHWCA, and these defendants are entitled summary
judgment. See Hetzel, 50 F.3d at 367. Because the Court grants summary
judgment, plaintiffs’ motion to voluntarily dismiss their claims against
Avondale and Lamorak is moot.

27

R. Doc. 80.
10

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS the 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.

30th
New Orleans, Louisiana, this _____ day of April, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

11