Storer et al v. Crown Cork & Seal et al
MEMORANDUM RULING denying 141 Motion for Partial Summary Judgment. Signed by Judge Elizabeth E Foote on 8/22/2017. (crt,Keifer, K)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MARTHA DENMON STORER, ET AL.
CIVIL ACTION NO. 14-2488
JUDGE ELIZABETH ERNY FOOTE
CROWN CORK & SEAL COMPANY, INC,
MAGISTRATE JUDGE HAYES
Before the Court is a motion for partial summary judgment filed by Defendant
Trane US, Inc. (“Trane”). Record Document 141. For the reasons discussed below,
Defendant’s motion is DENIED.
I. Factual and Procedural Background
Martha Storer and her four adult children (collectively “Plaintiffs”) brought this
suit against Trane and several other defendants, alleging liability for the death of their
husband and father Bud Storer from mesothelioma allegedly caused by asbestos
exposure. Record Document 204. Bud Storer died in 2013. Id., p. 1. Before his death,
he operated Storer Equipment Company (“the Company”), in which Plaintiffs are
shareholders. Record Document 164, p. 7. The Company had a franchise agreement
with Trane, which Trane terminated in 2014. Id., p. 10.
In their complaint, Plaintiffs alleged four claims: (1) negligence of asbestos
manufacturer sellers, suppliers and distributors, which they allege was the proximate
cause of Bud Storer’s illness; (2) strict liability of asbestos manufacturers, sellers,
suppliers, and distributors; (3) “intentional tort of fraudulent misrepresentation causing
physical harm;” and (4) “intentional tort battery.” Record Document 204, pp. 6-12. For
the first time in the amended complaint, Plaintiffs list economic damages as among the
damages sought. Record Document 204, p. 13. Specifically, Plaintiffs argue that they
are entitled to damages for loss of financial support from Bud Storer, including
damages resulting from Trane’s cancellation of the Company’s franchise agreement
because of Bud Storer’s death, causing lost revenues to the Company and to Plaintiffs
as the Company’s shareholders. Id.
Trane moved for partial summary judgment on the issue of damages, arguing
that Plaintiffs are not entitled to economic damages for any business losses to the
Company because Plaintiffs pled no cause of action that would warrant economic
damages to the company, economic damages are not compensable in wrongful death
and survival actions in Louisiana, and because no damages are warranted by the
termination of the franchise because the termination complied with the terms of the
franchise agreement. Record Document 141.
A. Standard of Review
Federal Rule of Civil Procedure 56(a) directs that a court “shall grant summary
judgment if 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.”1 Summary judgment is
Rule 56 was amended effective December 1, 2010. Per the comments, the 2010 amendment
was intended “to improve the procedures for presenting and deciding summary judgment motions and to
make the procedures more consistent with those already used in many courts. The standard for granting
summary judgment remains unchanged.” Therefore, the case law applicable to Rule 56 prior to its
amendment remains authoritative, and this Court will rely on it accordingly.
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appropriate when the pleadings, answers to interrogatories, admissions, depositions,
and affidavits on file indicate that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). When the burden at trial will rest on the non-moving party,
the moving party need not produce evidence to negate the elements of the non-moving
party’s case; rather, it need only point out the absence of supporting evidence. See id.
If the movant satisfies its initial burden of showing that there is no genuine
dispute of material fact with the motion for summary judgment, the nonmovant must
demonstrate that there is, in fact, a genuine issue for dispute at trial by going “beyond
the pleadings” and designating specific facts for support. Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994). “This burden is not satisfied with ‘some metaphysical
doubt as to the material facts,’” by conclusory or unsubstantiated allegations, or by a
mere scintilla of evidence. Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)). However, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1985) (internal citations omitted); Reid v. State
Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986) (the court must “review the
facts drawing all inferences most favorable to the party opposing the motion”). While
not weighing the evidence or evaluating the credibility of witnesses, courts should grant
summary judgment where the critical evidence in support of the nonmovant is so weak
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and tenuous that it could not support a judgment in the nonmovant’s favor. Little, 37
F.3d at 1075.
B. Trane’s Motion
Trane argues that Plaintiffs are not entitled to economic damages for lost profits
of the Company. Record Document 141. Trane advances three grounds for this
argument: that no cause of action pled in the Petition would warrant economic
damages, that economic losses to the Company are not compensable in wrongful death
and survival actions, and that no damages are available as a result of termination of the
franchise agreement. Id. Plaintiffs argue that they may recover damages for loss of
support, which includes loss of financial support, and thus may include the lost profits
of the Company. Record Document 164.
Trane attempts to turn a factual question into a purely legal one by carving out a
class of economic damages and then arguing that economic damages were not pled
and are not compensable in this sort of action as a matter of law. Record Document
141-1, pp. 4-8. Trane offers no case establishing such a bright-line rule, and in fact
agrees that loss of earnings is compensable. Id., p. 7 (“Loss of earnings are the only
economic damages compensable in this survival action...”). If Plaintiffs prove the
elements of their tort claims, they are entitled to whatever damages the factfinder
determines were proximately caused by those injuries. These include loss of earnings in
a survival action and loss of support in a wrongful death action. Broussard v. Med.
Protective Co., 2006-331 (La. Ct. App. 2/21/07); 952 So. 2d 818, 818-19. A jury could
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determine that loss of earnings and loss of support includes income that Bud Storer
would have earned but for his death. What damages were caused by Bud Storer’s
death, and what the extent of those damages may be, is a question of fact. Aldredge v.
Moses, 595 So. 2d 379, 381 (La. Ct. App. 1992) (“The determination of actual damages
is a question of fact.”). The Court cannot resolve a question of fact at this stage.
Trane similarly argues that Plaintiffs cannot recover economic damages from the
termination of the franchise agreement. To the extent that Trane’s argument is that
Plaintiffs have alleged no breach of contract claim, this is correct. Plaintiffs may not
recover for breach of contract because they have not claimed any breach of contract.
However, as discussed above, if Plaintiffs prove their tort claims, it will be up to the jury
to determine the amount of damages that would appropriately compensate them for
their injuries. Such a determination may be based on facts such as the amount of
earnings and support that Plaintiffs lost because of Bud Storer’s death. Whether that
loss of earnings and loss of support includes income Bud Storer would have earned
through the Company is a question of fact, and cannot be decided by the Court at
summary judgment. Therefore, Trane’s motion for partial summary judgment must be
For the reasons discussed above, Trane’s motion for partial summary judgment
[Record Document 141] is DENIED.
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THUS DONE AND SIGNED in Shreveport, Louisiana, this _22nd___
day of ________________, 2017.
Elizabeth Erny Foote
United States District Judge
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