Hulin v. Huntington Ingalls Incorporated et al
ORDER AND REASONS granting 39 Motion for Summary Judgment. For the reasons stated herein, the Court GRANTS the 39 motion for summary judgment. Plaintiff's state law claims against the Avondale Interests and the London Market Insurers are DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 10/14/2020. (mm)
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 1 of 27
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HUNTINGTON INGALLS, INC., ET
SECTION “R” (3)
ORDER AND REASONS
Defendants Huntington Ingalls Incorporated, Albert L. Bossier, Jr.,
and Lamorak Insurance Company (collectively the “Avondale Interests”)
move for summary judgment. 1 Certain Underwriters at Lloyd’s, London, and
London Market Companies (collectively “London Market Insurers”) have
joined in the Avondale Interests’ motion. 2 Because there is no genuine
dispute as to any material fact, and because defendants are entitled to a
judgment as a matter of law, the Court grants defendants’ motion.
R. Doc. 39.
R. Doc. 57.
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 2 of 27
This case arises out of plaintiff William Hulin, Sr.’s asbestos exposure.
Avondale employed Hulin from January 1954 to May 1973. 3 He worked
primarily at Avondale’s “Main Yard.” 4 He worked as a shipfitter, and claims
to have worked as a “laborer” and “tacker.”5
Hulin alleges that he was exposed to asbestos numerous times in the
course of his employment with Avondale.6 He states that he worked at the
Main Yard’s land-based insulation shop.7 His work there consisted of,
among other things, “cutting asbestos insulation templates for later
installation on vessels.”8 He alleges that he breathed “asbestos dust on a
regular basis,” even when he was not personally handling insulation. 9 Hulin
claims to have “sustained regular, heavy and ongoing exposures to asbestos
on land prior to 1972.” 10 In July 2019, Hulin was diagnosed with lung cancer.
R. Doc. 44-1 at 1, II ¶ 1 (Plaintiff’s Statement of Contested Material
Id. at ¶ 2.
R. Doc. 44-2 at 1, ¶ 2 (Hulin Affidavit)
Id. at ¶ 3.
Id. at ¶ 4.
Id. at ¶ 5.
Id. at ¶¶ 6-7.
Id. at ¶ 3.
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 3 of 27
Plaintiff sued a number of defendants, including the Avondale
Interests, in state court on November 12, 2019. 11 The case was removed to
this Court on March 17, 2020. 12 Plaintiff has expressly disclaimed any strict
liability claim against the Avondale Interests. 13
Instead, he alleges
negligence against the Avondale Interests under Louisiana law.14
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) (en banc) (per curiam). “When assessing whether a
dispute to any material fact exists, [the Court] consider[s] 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., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are
drawn in favor of the nonmoving party, but “unsupported allegations or
R. Doc. 1-2 (Original Complaint).
R. Doc. 1.
R. Doc. 1-2 at 11, ¶ 50 (Original Complaint).
Id. at ¶¶ 38-50.
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 4 of 27
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) (quoting
10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute
of fact exists if the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving 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) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,
951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by
either countering with evidence sufficient to demonstrate the “existence of a
genuine dispute of material fact,” or by “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
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 5 of 27
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
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
resolution. 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
The Avondale Interests and London Market Insurers argue that
plaintiff’s state-law negligence claims are preempted by the Longshore and
Harbor Workers’ Compensation Act (“LHWCA” or the “Act”), 33 U.S.C. §
901, et seq. Plaintiff argues that the LHWCA does not apply to his injuries
and, even if it does, the LHWCA does not preempt his negligence claims.
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Furthermore, Hulin argues that preemption would effectively deprive him of
a vested property right, violating his constitutional right to due process.
Coverage Under the LHWCA
The LHWCA is a federal statutory workers’ compensation statute
providing covered maritime workers with “medical, disability, and survivor
benefits for work-related injuries and death.” MMR Constructors, Inc. v.
Dir., Office of Workers’ Comp. Programs, 954 F.3d 259, 262 (5th Cir. 2020)
(citation and internal quotation marks omitted). Before 1972, the statute
covered only workers on “navigable waters of the United States (including
any dry dock).” Id. (citing 33 U.S.C. § 903(a) (pre-1972)). But, in 1972,
Congress “extend[ed] the LHWCA landward.”
Sun Ship, Inc. v.
Pennsylvania, 447 U.S. 715, 719 (1980).
Applicable Version of the LHWCA
This case turns in large part upon whether the pre- or post-1972
version of the LHWCA applies. Plaintiff argues that the pre-1972 version of
the law applies and that his land-based asbestos exposures fall outside the
Act’s scope. 15 Defendant contends that the post-1972 Act applies. 16 In
making the determination of the applicable version of the LHWCA,
R. Doc. 44 at 6.
R. Doc. 39-1 at 3-4.
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 7 of 27
defendant argues that a “date of manifestation” rule controls.17 Under this
rule, the Court applies the Act as it existed when plaintiff’s disease
manifested to determine whether the alleged injuries are covered.
response, plaintiff argues that a “date of exposure” rule applies and that the
Court must analyze these claims under the pre-1972 LHWCA, 18 because he
suffered asbestos exposure before the Act’s amendments. 19
Courts use the “date of injury” to determine which version of the
LHWCA applies. Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1029 (5th
Cir. 1985). In the context of long-latency diseases arising from asbestos
exposure, the Fifth Circuit in Castorina held that manifestation, not
exposure, determines the date of injury. Id. at 1031. There, plaintiff’s
disease, asbestosis, manifested in 1979. Id. at 1028. His exposures occurred
between 1965 and 1972. Id. at 1027. The court looked to judicial authority
stating that the LHWCA “is not concerned with pathology, but with
industrial disability; and a disease is no disease until it manifests itself.” Id.
(quoting Grain Handling Co. v. Sweeney, 102 F.2d 464 (2d Cir. 1939), cert.
denied, 308 U.S. 570 (1939)).
It also inferred Congress’s intent from
Congress’s express adoption of the manifestation rule in 1984. Id. (citing
R. Doc. 44 at 6.
Id. at 3.
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 8 of 27
Pub.L. No. 98–426, § 28(g)(1), 98 Stat. 1639 (1984)).
In the 1984
amendments to the LHWCA, Congress provided a specific definition of
“injury” for occupational diseases:
[I]n the case of an occupational disease which does not
immediately result in a disability or death, an injury shall be
deemed to arise on the date on which the employee or claimant
becomes aware, or in the exercise of reasonable diligence or by
reason of medical advice should have been aware, of the disease
Pub.L. No. 98–426, § 28(g)(1), 98 Stat. 1639 (1984). Under Castorina and
the 1984 amendments, plaintiff’s injury is deemed to arise on the date it
manifested. Because plaintiff’s disease manifested in 2019, the Court applies
the LHWCA as it existed in 2019, the date of plaintiff’s injury.
Plaintiff disputes this legal conclusion by pointing to dicta in a footnote
in Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 466 n.6 (5th Cir. 2016),
in which the Fifth Circuit stated:
Defendant’s preemption defense is governed by the law at the
time [plaintiff] was exposed to asbestos, which occurred before
the Louisiana Worker's Compensation Act was amended in 1989
to eliminate any concurrent coverage between that Act and the
federal Longshore and Harbor Workers’ Compensation Act. See
La. Rev. Stat. 23:1035.2 (providing that “[n]o compensation shall
be payable in respect to the disability or death of any employee
covered by . . . the Longshoremen’s and Harbor Worker's
Compensation Act, or any of its extensions . . .”).
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 9 of 27
Id. (emphasis added).20 The Court does not find that this footnote has the
import plaintiff attributes to it.
In the Savoie opinion, the court makes clear that it is discussing the
applicable version of state law. For example, in the footnote upon which
plaintiff relies, the Fifth Circuit noted that plaintiff’s exposure “occurred
before the Louisiana Worker’s Compensation Act was amended in 1989 to
eliminate any concurrent coverage between that Act and the federal
Longshore and Harbor Workers’ Compensation Act.” Id. (citing La. Rev.
Stat. 23:1035.2). If the court were not referring to the appropriate version of
state law, there would have been no need to discuss the elimination of
concurrent state-federal workers’ compensation coverage. The references to
state law in the same footnote and throughout the opinion support the
Court’s conclusion that the Fifth Circuit was referring to the applicable state
law, not which version of the LHWCA applies. See id. at 464 (“[Wrongful
death] claims are governed by the [state] law in effect at the time the
decedent passes away,” but “survival claims based on asbestos exposure are
governed by the [state] law in effect when the exposure occurred.” (first
citing Rando v. Anco Insulations, Inc., 16 So.3d 1065, 1072 (La. 2009),
second citing (citing Landry v. Avondale Indus., Inc., 877 So.2d 970, 972
R. Doc. 44 at 6.
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 10 of 27
(La. 2004)). Further, the Fifth Circuit expressly stated that it did not decide
whether defendant had a colorable federal preemption defense. Id. at 466.
As one Fifth Circuit panel cannot overrule another without an intervening
change in the law, see United States v. Darrington, 351 F.3d 632, 634 (5th
Cir. 2003), the Court does not find that the Fifth Circuit overruled its earlier,
reasoned decision in Castorina by way of dicta in a footnote.
Because Castorina’s manifestation rule controls, the Court applies the
LHWCA as it existed in 2019, when plaintiff’s lung cancer manifested itself.
Applicability of the Post-1972 LHWCA to Plaintiff’s
Since the 1972 amendments, the LHWCA covers injuries of workers
who meet the Act’s “status” and “situs” requirements. See New Orleans
Depot Servs. v. Dir., Office of Worker’s Comp. Programs, 718 F.3d 384, 389
(5th Cir. 2013). The “status” requirement limits application of the LHWCA
to “traditional maritime occupations.” Id.; see 33 U.S.C. § 902(3) (defining
“employee” as “any person engaged in maritime employment, including any
longshoreman or other person engaged in longshoring operations, and any
harbor-worker including a ship repairman, shipbuilder, and ship-breaker”
(emphasis added)). The Fifth Circuit has found that the status test is
satisfied when the person is “directly involved in an ongoing shipbuilding
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 11 of 27
operation.” Ingalls Shipbuilding Corp. v. Morgan, 551 F.2d 61, 62 (5th Cir.
Defendants state that, as a “shipfitter” plaintiff was engaged in
shipbuilding while employed by Avondale.21 Plaintiff agrees that he worked
as a shipfitter,22 but also presents evidence that he worked as a “tacker” and
Plaintiff’s characterizations notwithstanding, there is no
genuine dispute that plaintiff was a “harbor-worker.” See McLaurin v. Noble
Drilling (US) Inc., 529 F.3d 285, 289 (5th Cir. 2008) (stating that the
LHWCA applies to certain types of maritime workers, including
“longshoremen, shipbuilders, ship repairers, and various harbor workers,
such as carpenters, cleaners, or painters”); see also 1 Robert Force and
Martin J. Norris, The Law of Maritime Personal Injuries § 3:9 (5th ed.)
(Stating that the LHWCA specifically includes “‘any harborworker,’” which
includes “shipcleaners, tank cleaners, riggers, carpenters, ship ceilers, cargo
checkers, cargo weighers, cargo talleyers, port watchmen, electricians,
painters, mechanics, etc.”) All of Hulin’s deposition testimony indicates that
he worked as a “harbor-worker” when the exposures occurred. For example,
R. Doc. 39-1 at 4.
R. Doc. 1 at 2-3, II ¶ 1 (Plaintiff’s Statement of Contested Material
R. Doc. 44-2 at 1 (Hulin Affidavit).
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Hulin stated that he worked as a “fitter” and “built a bunch of [destroyer
escorts].” 24 In the course of this work, he would “cut a hole [in the bulkhead
of the destroyer escorts] to pass electric wire” and would sometimes be
exposed to asbestos.25 He also described a time he did cleanup work on a
hospital ship. 26
See McLaurin, 529 F.3d at 289 (stating that “harbor
workers” include “cleaners”). In the affidavit attached to plaintiff’s response
to defendant’s motion for summary judgment, Hulin states that he “worked
in the (land-based) insulation shop at Avondale’s Main Yard,” and his work
there “included but was not limited to cutting asbestos insulation templates
for later installation on vessels.” 27 This type of work satisfies the status test
because it was an “essential step of the shipbuilding process.” Morgan, 551
F.2d at 62 (holding that a worker who died when a steel plate he was cleaning
fell on him because the “cleaning task was an essential step of the
shipbuilding process”). Although Hulin’s affidavit indicates that he did other
work in the insulation shop, he does not state what it was. Plaintiff failed to
produce any evidence creating a material fact issue as to whether Hulin was
R. Doc. 39-3 at 15-20 (Hulin Deposition Volume I).
Id. at 16.
Id. at 40.
R. Doc. 44-2 at 1, ¶ 5 (Hulin Affidavit).
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 13 of 27
anything but a “harbor-worker.” 33 U.S.C. § 902(3). Thus, the Court finds
that the LHWCA’s status test is satisfied.
Second, the “situs” test, extended by Congress in 1972, requires that
the injury occur on the “navigable waters of the United States” and “any
adjoining pier, wharf, dry dock, terminal, building way, marine railway, or
other adjoining area customarily used by an employer in loading, unloading,
repairing, dismantling, or building a vessel.” 33 U.S.C. § 903(a); see also Sun
Ship, Inc., 447 U.S. at 719 (“In 1972, Congress . . . extend[ed] the LHWCA
landward beyond the shoreline of the navigable waters of the United
States.”). There is no dispute that plaintiff’s exposure to asbestos occurred
in a covered situs—Avondale Shipyards. 28 See Pitre v. Huntington Ingalls,
Inc., No. 17-7029, 2018 WL 2010026, at *3 (E.D. La. Apr. 30, 2018)
(“Avondale’s vessel construction and repair activities occurred on the west
bank of the Mississippi River adjacent to navigable waters.”). As discussed
above, plaintiff disputes the applicable version of the law—not whether the
locations are covered under the post-1972 LHWCA.29 The Court finds that
Avondale shipyards, located on and adjacent to the navigable waters of the
R. Doc. 39-5 at 2, ¶ 6 (Bossier Affidavit).
R. Doc. 44 at 6.
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United States, is a covered situs.30 See id. Plaintiff’s status falls within the
coverage of the LHWCA, and his injuries occurred on a covered situs.
Therefore, plaintiff could have brought a claim under the LHWCA. The
Court proceeds to answer the question of whether the Act preempts
plaintiff’s state law negligence claims.
Defendants argue that the LHWCA immunizes it from tort liability and
that it preempts the Louisiana law under which plaintiff brings his tort
claims.31 The question here is whether the LHWCA’s exclusivity provision
has preemptive effect over state law tort claims. The exclusivity provision
states as follows:
The 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, parents, dependents, next of kin, and anyone 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).
See R. Doc. 39-5 at 2, ¶ 6 (Bossier Affidavit) (“Avondale was at all times
an employer whose employees were employed in maritime employment
upon the navigable waters of the United States of America, and their adjacent
banks specifically, on the west bank of the Mississippi River in Avondale,
R. Doc. 39-1 at 5-13.
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The United States Supreme Court has delineated a “twilight zone” of
concurrent jurisdiction between the LHWCA and state law workmen’s
compensation statutes. See Davis v. Department of Labor and Indus. of
Washington, 317 U.S. 249 (1942) (establishing regime of concurrent
jurisdiction in “twilight zone”); see also Hetzel v. Bethlehem Steel Corp., 50
F.3d 360, 363-64 (5th Cir. 1995) (discussing cases).
After the 1972
amendments to the LHWCA, the Supreme Court, in Sun Ship, Inc.,
addressed the issue of whether the 1972 extension of the LHWCA’s coverage
displaced states from applying their own workmen’s compensation schemes
to land-based injuries that fell under expanded federal coverage. 447 U.S.
715. The Supreme Court unanimously answered the question in the negative.
The Supreme Court specifically rejected the argument that concurrent
jurisdiction was inappropriate because “concurrent jurisdiction could result
in more favorable awards for workers’ injuries than under an exclusively
federal compensation system.” Id. at 724. The Court found that the exclusive
remedy provision of § 905(a) of the LHWCA was no obstacle to concurrent
state compensation remedies.
This case is a twilight zone case because the relevant asbestos exposure
occurred on land at the Avondale Shipyards where vessels were being
constructed. Cf. Cobb v. Sipco Servs. & Marine, Inc., No. 95-2131, 1997 WL
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159491, at *6 (E.D. La. Mar. 27, 1997). Indeed, plaintiff asks the Court to
consider only this land-based exposure, even though exposure also occurred
over navigable waters. 32 Based on Sun Ship, it is apparent that Louisiana
could have provided a workmen’s compensation remedy to Hulin and that
the LHWCA would not preempt such a recovery. 447 U.S. at 725-26. But,
plaintiff does not seek compensation under Louisiana’s workers’
compensation regime. Rather, he asserts only state law negligence claims
against the Avondale interests.33 Thus, the question is whether the LHWCA
preempts state law negligence claims for injuries in the twilight zone.
Federal law applies to questions of preemption. Hetzel v. Bethlehem
Steel Corp., 50 F.3d 360, 363 (5th Cir. 1995). Federal law can preempt state
law in three ways: (1) express preemption, where Congress expresses an
explicit intent to preempt state law; (2) field preemption, where the “sheer
comprehensiveness” of the federal scheme implies congressional intent to
preempt state regulation in the area; or (3) conflict preemption, where the
state law either directly conflicts with the federal law or interferes with the
regulatory program established by Congress. Id.
R. Doc. 44 at 3.
R. Doc. 1-2 at 11, ¶¶ 38-50 (Original Complaint).
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 17 of 27
The text of the LHWCA, the intention underlying the statute, and the
weight of authority make clear that plaintiff’s state law tort claims are conflict
preempted. The LHWCA’s exclusivity provision provides that the liability
imposed in § 904 is “in place” of the right to “recover damages” at law. 33
U.S.C. § 905(a).
The plain language of this provision “evidences an
unmistakable intention to embody the quid pro quo that defines most
workmen’s compensation statute.” Cobb, 1997 WL 159491, at *7 (citing Peter
v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 950 (3d Cir. 1990)).
Specifically, the employee gets the benefit of no-fault compensation, and the
employer enjoys immunity from tort liability for damages. Id. The Supreme
Court has also recognized this exchange:
[T]he [LHWCA is] not a simple remedial statute intended for the
benefit of the workers. Rather, it was designed to strike a balance
between the concerns of the longshoremen and harbor workers
on the one hand, and their employers on the other. Employers
relinquish their defenses to tort actions in exchange for limited
and predictable liability. Employees accepted the limited
recovery because they receive prompt relief without the expense,
uncertainty, and delay that tort actions entail.
Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S. 624, 636 (1983).
Allowing state law tort claims would contradict the text of the statute and
would frustrate the Act’s purpose by undermining the quid pro quo.
Indeed, several Courts have recognized as much. The Fifth Circuit held
in Rosetti v. Avondale Shipyards, Inc., 821 F.2d 1083, 1085 (5th Cir. 1987),
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 18 of 27
that the LHWCA bars a “state law negligence claim,” because “[u]nder the
LHWCA, workers compensation is the exclusive remedy for an injured
employee against his employer.” Further, in Hetzel v. Bethlehem Steel Corp,
50 F.3d 360, 366-67 (5th Cir. 1995), the Fifth Circuit found that
“[p]reemption of [a] state [tort] act is required to avoid frustration of the
policies and purpose behind the LHWCA.” In Hetzel, the court reasoned that
“[c]ongressional policy would be frustrated if an injured worker were allowed
to collect benefits under the Act, and then sue his employer under a state
statutory tort theory.” Id. This Court has also held that the LHWCA
preempts a state tort claim. See Cobb, 1997 WL 159491, at *8 ([A]pplication
of Louisiana tort law, which plaintiff concedes is not a workmen’s
compensation remedy, does not further the availability of no fault
compensation, and it obstructs the purposes of the LHWCA.”). The Third
Circuit in Peter v. Hess Oil Virgin Islands Corp., similarly concluded that
“§ 905(a) [of the LHWCA] and the Supremacy Clause bar the Virgin Islands
from imposing negligence liability on [a covered employer.]” 903 F.2d at
The Peter court specifically noted that Congress “intended that
compensation, not tort damages, were to be the primary source of relief for
workplace injuries for longshoremen against their employers.” Id. at 952.
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 19 of 27
Against this binding and persuasive authority, plaintiff argues that his
case is distinguishable because, unlike the plaintiffs in Rosetti, Hetzel, Cobb,
and Peter, he (1) is not simultaneously seeking benefits under the LHWCA,
or (2) has not already received LHWCA benefits. 34 But plaintiff’s distinctions
are unavailing. The Fifth Circuit has made clear that, if the LHWCA covers
an employee’s injury, his only remedy lies in workers’ compensation. Any
other result would conflict with LHWCA’s text and undermine the quid pro
quo that Congress enacted. For these reasons, the Court finds that the
LHWCA preempts plaintiff’s state law negligence claims.
Due Process and Divestment of Tort Claim
Finally, plaintiff argues that applying the LHWCA retroactively to an
injury arising from land-based exposures occurring before the 1972
amendments unconstitutionally divests him of a property right in his
accrued state law negligence claims.35 He contends that such result amounts
to a denial of due process. 36
Retroactivity of the LHWCA
Although “Congress has the power to enact laws with retrospective
effect,” in Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Supreme
R. Doc. 44 at 21-23
Id. at 16-17.
R. Doc. 44 at 16-17.
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 20 of 27
Court recognized a presumption against retroactivity and delineated a test to
assess whether a statute is retroactive. Terrazaz-Hernandez v. Barr, 924
F.3d 768, 772 (5th Cir. 2019). As the test is construed by the Fifth Circuit,
the Court must first “determine whether Congress has expressly prescribed
the statute’s proper reach.” Id. (quoting Landgraf, 511 U.S. at 28). If
Congress clearly intended the statute to be retroactive, the inquiry ends. Id.
If not, the Court must proceed to the second step and ask, “whether
retroactive application would impair rights a party possessed when he acted,
increase a party’s liability for past conduct, or impose new duties with respect
to transactions already completed.” Id. (quotation marks and citation
Here, the Court finds that Congress expressly prescribed that the
amended statute applies to latent disease claims arising from exposures
occurring before the amendment dates. In the 1984 amendments to the Act,
Congress stated that the amendments “shall be effective on the date of
enactment,” i.e., September 28, 1984, and “shall apply . . . with respect to
claims filed after” that date. Pub.L. No. 98-426, § 28(a), 98 Stat. 1639, 1655.
One of the changes to the statute was the express adoption of the
manifestation rule. See id. at § 28(g)(1) (“[I]n the case of an occupational
disease . . . an injury shall be deemed to arise on the date on which the
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 21 of 27
employee or claimant becomes aware . . . of the disease. . . .”). Together,
these provisions indicate that the manifestation rule applies to claims filed
after September 28, 1984, regardless of whether the exposures occurred
before the amendment date. Because the date of injury controls which
version of the LHWCA applies, see Castorina, 758 F.2d at 1029, this is an
express recognition by Congress that the LHWCA, as amended in 1984,
would apply to claims arising from exposures, like plaintiff’s, that occurred
before the amendments.
The Eleventh Circuit reasoned similarly in Alabama Dry Dock and
Shipping Corp. v. Sowell, when it concluded that the LHWCA’s statute of
limitations, as amended in 1984, was retroactive. 933 F.2d 1561 (11th Cir.
1991), overruled on other grounds, Bath Iron Works Corp. v. Director,
Office of Workers’ Comp. Programs, 506 U.S. 153 (1993). The Eleventh
Circuit, discussing the 1984 amendments to the LHWCA, stated:
The provision that “the amendments made by this Act shall be
effective on the date of enactment of this Act and shall apply . . .
to claims filed after such date” is obviously not necessary to apply
the new law to claims arising after the effective date. The only
sensible reading of the provision, then, is that Congress was
addressing claims that arose before the effective date of the
statute but were filed after the effective date.
Id. at 1564. The same logic applies here. Congress would have no reason to
prescribe that the manifestation rule applies to claims “filed” after the
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 22 of 27
amendment date if all it meant was that claims “arising” after the
amendment date should apply the manifestation rule.
The Court next addresses plaintiff’s argument that divestment of his
tort claims violates due process.
Although plaintiff cites to Louisiana
Supreme Court precedent, 37 this issue is governed by federal constitutional
law. Hetzel, 50 F.3d at 363 (“The Erie doctrine does not apply . . . in matters
governed by the federal Constitution or by acts of Congress.”) (quoting
Grantham v. Avondale Indus., Inc. 964 F.2d 471, 473-74 (5th Cir. 1992)).
The Court notes that the federal courts have generally found that rights
in tort claims do not vest until there is a final, unreviewable judgment. See
Hammond v. United States, 786 F.2d 8, 12 (1st Cir. 1986); In re TMI, 89 F.3d
1106, 1113 (3d Cir. 1996); Zeran v. Am. Online, Inc., 129 F.3d 327, 335 (4th
Cir. 1997); Lunsford v. Price, 885 F.2d 236, 241 n.13 (5th Cir. 1989); Arbour
v. Jenkins, 903 F.2d 416, 420 (6th Cir. 1990); Symens v. SmithKline
Beecham Corp., 152 F.3d 1050, 1056 n.3 (8th Cir. 1998); Grimesy v. Huff,
876 F.2d 738, 744 (9th Cir. 1989); Salmon v. Schwarz, 948 F.2d 1131, 1143
(10th Cir. 1991); Sowell v. American Cyanamid Co., 888 F.2d 802, 805 (11th
R. Doc. 44 at 16.
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 23 of 27
Cir. 1989). But, even if there is a vested tort claim here, Hulin has not
satisfied the constitutional standard to establish a due process violation.
The U.S. Supreme Court has held that Congress’s acts—even
retroactive legislation—enjoy a “presumption of constitutionality.”
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976); see also
Landgraf, 511 U.S. at 272 (“[T]he constitutional impediments to retroactive
civil legislation are now modest.”). In Turner Elkhorn Mining, the Supreme
Court held that the Due Process Clause did not bar Congress from enacting
a workers’ compensation law that retroactively imposed liability on coal
mine operators. 428 U.S. at 19-20. The test the Supreme Court applied was
whether the party complaining of the due process violation carried its burden
of showing that Congress “acted in an arbitrary and irrational way.” Id. at
15-18. Ultimately, the Court found that imposing liability on employers for
“disabilities bred in the past” is a “rational measure” to spread the costs of
the disabilities. Id. at 18
Similarly, at least three circuit courts have applied a “rational basis”
test to evaluate the constitutionality of retroactive legislation abolishing or
affecting tort actions. See Hammond, 786 F.2d at 13; In re TMI, 89 F.3d at
1113; In re Consolidated U.S. Atmospheric Testing Litig., 820 F.2d 982, 99091 (9th Cir. 1987). In Hammond the First Circuit held that Congress was
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 24 of 27
“neither arbitrary nor irrational” when it enacted 42 U.S.C. § 2212, which
retroactively barred the plaintiff’s accrued common law and state statutory
causes of action. 786 F.2d at 13-15 (“[P]laintiff has not met her burden of
showing that § 2212 is wholly arbitrary and irrational in purpose and effect,
i.e., not reasonably related to a legitimate congressional purpose.”). Section
2212 allowed the United States to substitute itself as party in suits arising
from the atomic weapons testing program and made the Federal Tort Claims
Act (“FTCA”) the sole remedy. Id. at 10. In its rational basis review, the court
first found that Congress had a legitimate end where it sought to protect
private parties from suit. Id. at 13-14. Then, it found that Congress’s chosen
means—allowing substitution by the United States and making the FTCA the
sole remedy—was rational because it placed all putative plaintiffs in the same
position as any other party who sues the federal government in tort. Id. at
When faced with the same issue, the Ninth Circuit adopted the
Hammond court’s analysis. In re Consolidated U.S. Atmospheric Testing
Litig., 820 F.2d 982, 990-92; see also Ileto v. Glock, Inc., 565 F.3d, 1126,
1140-41 (9th Cir. 2009) (upholding retroactive application of the Protection
of Lawful Commerce in Arms Act (“PLCAA”), which preempts tort claims
against firearm manufacturers, because “Congress rationally could find that
. . . interstate and foreign commerce of firearms would be affected” by the
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 25 of 27
PLCAA). The Third Circuit in In re TMI, held that retroactive application of
choice of law provisions in the Price-Anderson Amendments Act of 1988,
which had the effect of barring the plaintiffs’ pending state law personal
injury claims, was “not arbitrary and irrational,” because retroactive
application of the act furthered Congress’s goals of uniformity, equity, and
efficiency in disposition of claims. 89 F.3d at 1113-15.
Under Turner Elkhorn Mining and the persuasive authority in the
First, Third, and Ninth Circuits, the Court must ask whether plaintiff carried
his burden of showing that Congress acted arbitrarily and irrationally by
immunizing employers covered by the LHWCA from tort claims, even if
those claims already accrued under state law. Clearly, he has not. Plaintiff
makes conclusory statements that the law would “unconstitutionally divest”
him of his “vested right” if the Court finds that the LHWCA preempts his
state law tort claims and immunizes defendants from them. 38 Without more,
these conclusory statements do not show that Congress acted arbitrarily and
Congress had a rational basis to retroactively expand the extent of the
LHWCA’s coverage of exposures to hazardous materials, like asbestos, that
cause long-latency occupational diseases. The ends of the LHWCA, enacting
R. Doc. 44 at 16-17.
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 26 of 27
the quid pro quo of workers’ compensation remedies, are unquestionably
legitimate. See Turner Elkhorn Mining, 428 U.S. at 15 (noting that Congress
has the authority “to allocate the interlocking economic rights and duties of
employers and employees upon workmen’s compensation principles.”); cf.
Hammond, 768 F.2d at 13 (finding that Congress had a “rational” or
“legitimate” reason when it relieved private contractors from liability for tort
claims). Additionally, the Court cannot say that Congress’s decision to
retroactively apply the LHWCA to toxic exposures was an irrational or
arbitrary way to achieve that purpose. Cf. In re TMI, 89 F.3d at 1113
(upholding retroactive application of a choice of law provision where it
furthered the relevant act’s goals of “uniformity, equity, and efficiency”). By
enacting the manifestation rule, Congress ensured that workers like plaintiff
fell under the protection of the LHWCA. Congress was not merely divesting
plaintiff of his state law negligence claims, it was substituting a no-fault
remedy for the uncertain liability of common law torts.
For these reasons, the Court finds that plaintiff has failed to carry his
burden of establishing a due process violation.
defendants’ motion for summary judgment.
The Court must grant
Case 2:20-cv-00924-SSV-DMD Document 64 Filed 10/14/20 Page 27 of 27
For the foregoing reasons, the Court GRANTS the motion for summary
judgment. Plaintiff’s state law claims against the Avondale Interests and the
London Market Insurers are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this _____ day of October, 2020.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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