Legendre et al v. Anco Industries, Inc et al

Filing 182

RULING denying 168 Motion to Amend; denying 168 Motion for Certificate of Appealability. Signed by Judge James J. Brady on 07/08/2013. (CGP) Modified on 7/8/2013 to edit docket text (CGP).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ROBERT LEGENDRE, ET AL.
CIVIL ACTION
VERSUS
NO. 12-94-JJB
ANCO INSULATIONS, INC., ET AL.
RULING ON MOTION TO AMEND AND CERTIFY RULING FOR INTERLOCUTORY
REVIEW
This matter is before the Court on a Motion to Amend and Certify this Court’s May 9,
2013 Ruling on Motions for Summary Judgment (Doc. 158) for interlocutory review and to
amend that Ruling to state that the conditions for interlocutory review have been met filed by
Defendants OneBeacon America Insurance Company, in its capacity as an alleged insurer of
James O’Donnell and Huntington Ingalls Incorporated (f/k/a Northrop Grumman Shipbuilding,
Inc., f/k/a Avondale Industries, Inc.) and its alleged insurer OneBeacon America Insurance
Company (collectively, “Huntington Ingalls”) (Doc. 168). The Plaintiffs have filed an
opposition. (Doc. 175). Oral argument is not necessary. For the reasons herein, the Court
DENIES Defendants’ Motion. (Doc. 168).
This Court denied Defendants’ Motions for Summary Judgment, finding that the
Plaintiffs’ claims were not pre-empted by the Longshore Harbor Workers Compensation Act
(“LHWCA”). (Doc. 158). In its ruling, this Court explained that because Robert Legendre was
exposed to asbestos in 1957 and again in 1964 through 1969, his cause of action accrued at that
time. The LHWCA did not apply to land-based workers prior to 1972. Thus, because Legendre’s
cause of action accrued before 1972, the LHWCA is inapplicable and does not pre-empt
Plaintiffs’ state law survivorship claims. Defendants now seek to have this Court certify its
ruling for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

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28 U.S.C. § 1292(b) authorizes a district court to certify an order for interlocutory appeal
if the order “involves a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b). In support of their argument,
Defendants reiterate many of the arguments that were presented in support of their motions for
summary judgment.
First, Defendants argue that there is a contradiction between two cases decided by Judge
Robreno, Hackler v. P & O Ports Louisiana, Inc., 2011 WL 8747108 (E.D. Pa. 2011), and
Jefferson v. American Sugar Refining, Inc., 2012 WL 5389926 (E.D. Pa. 2012), and his prior
decision in Becnel v. Anco Insulations, Inc., 2011 WL 304866 (E.D. Pa. 2011), which shows a
substantial ground for difference of opinion. However, there is no contradiction between the
cases, which this Court has already gone to great lengths to explain. Simply put, in Hackler and
Jefferson, the LHWCA did not pre-empt state law claims because the cause of action accrued
prior to 1972. In Becnel, LHWCA did pre-empt state law claims because the cause of action
accrued after 1972. As Judge Robreno explained
In Becnel, this Court found that plaintiff's claims against an executive officer were
preempted by the LHWCA. Becnel is distinguishable from this case because, in
Becnel, the plaintiff began working for the defendant in 1970 and thus incurred
significant tortious exposures after 1972. Thus, the LHWCA applied to the
plaintiff's claims. Here, as all exposures occurred in the early 1960s, the LHWCA
does not apply.
Hackler, 2011 WL 8747108, at *1 n. 1. Thus, there is no contradiction and Judge Robreno’s
position is clear: if the cause of action accrued prior to 1972, the LHWCA does not pre-empt
state law claims.
Next, Defendants revisit their previously raised argument that Castorina v. Lykes
Brothers S.S. Company, Inc., 758 F.2d 1025 (5th Cir. 1985) supports their position. However, as
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this Court has already explained, the Fifth Circuit’s reasoning in Castorina “only confirms what
is stated in Hackler, Jefferson, and the LHWCA itself—a cause of action under the LHWCA
stemming from a long-latency disease accrues when the disease manifests itself.” (Doc. 158, at
7). Thus, the Court is not persuaded by this repetition.
Finally, Defendants argue that there is a “clear difference of judicial opinion” as
manifested in contradictory opinions by the Louisiana Supreme Court, the Alabama Supreme
Court, and the Maryland Supreme Court concerning whether the LHWCA pre-empts state law.
However, as plaintiffs point out, Louisiana law applies to this case and decisions from other state
courts have no bearing on the present matter.
The Court finds that there is no issue for interlocutory appeal because there is no
substantial basis for difference of opinion, nor is there any contradictory or conflicting precedent.
The law is clear and these issues were addressed more than adequately in the Court’s prior
ruling.
Accordingly, the Defendants’ Motion is DENIED. (Doc. 168).

Signed in Baton Rouge, Louisiana on July 8th, 2013.





JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

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