Arbogast et al v. A.W. Chesterton Company et al

Filing 581

MEMORANDUM. Signed by Judge James K. Bredar on 4/24/2017. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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BARBARA ARBOGAST et al.,
Plaintiffs

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v.

CIVIL NO. JKB-14-4049
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GEORGIA-PACIFIC LLC et al.,
Defendants
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MEMORANDUM
I. Background
Pending before the Court is CSX Transportation, Inc.’s (“CSXT”) motion to dismiss or
for summary judgment on or, in the alternative, motion to strike or sever the third-party
complaints filed against CSXT by Defendants Georgia-Pacific LLC (“Georgia-Pacific”) and
MCIC, Inc. (“MCIC”). (ECF No. 560.) The motion has been briefed (ECF Nos. 567 & 574),
and no hearing is needed, Local Rule 105.6 (D. Md. 2016). The motion will be treated as a
motion for summary judgment and granted.
II. Standard for Summary Judgment
“The 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.” Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any
genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing

the motion, then a genuine dispute of material fact is presented and summary judgment should be
denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the [opposing party’s] position” is insufficient to
defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to
be drawn from the underlying facts, must be viewed in the light most favorable to the opposing
party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.
2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by
affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial,
Fed. R. Civ. P. 56(c)(1). Supporting and opposing affidavits are to be made on personal
knowledge, contain such facts as would be admissible in evidence, and show affirmatively the
competence of the affiant to testify to the matters stated in the affidavit. Fed. R. Civ. P. 56(c)(4).
III. Analysis
Defendants’ third-party complaints are claims of contribution based upon the decedent’s
state-court complaint against CSXT under the Federal Employers Liability Act, 45 U.S.C. § 51 et
seq., and the Locomotive Inspection Act, 49 U.S.C. § 20701 et seq. (ECF Nos. 556, 572.) They
assert that CSXT is a joint tortfeasor and therefore liable to Georgia-Pacific and MCIC if they
are found liable in the instant case to Plaintiffs for the mesothelioma injury suffered by the
decedent, Charles L. Arbogast, Jr. (“Arbogast”), while in CSXT’s employ. They rely upon the
complaint filed by Arbogast in Maryland state court against CSXT.1 (See ECF No. 556-1.)
CSXT asserts various grounds for its motion, but its primary argument—that its liability is
limited by statute—is persuasive and dispositive of the motion, and the Court will address only
it.
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According to CSXT, that case did not proceed to judgment because it was settled and dismissed.
(CSXT’s Mot. Supp. Mem. 6, ECF No. 560-2.) Arbogast v. CSXT, Civ. No. CCB-15-1439 (ECF No. 33).

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A contribution claim is premised upon shared fault of joint tortfeasors.

Cooper

Stevedoring Co., Inc. v. Fritz Kopke, Inc., 417 U.S. 106, 115 (1974) (“Contribution rests upon a
finding of concurrent fault.”); Eagle-Picher Industries, Inc. v. United States, 937 F.2d 625, 635
(D.C. Cir. 1991) (“contribution is premised on joint tortfeasance”). CSXT argues it is immune
from tort liability due to its acknowledged statutory liability under the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950. The statutory liability to
which CSXT is subject is not based upon fault. 33 U.S.C. § 904(b) (“Compensation shall be
payable irrespective of fault as a cause for the injury.”). Further, the LHWCA statutory liability
excludes all other liability against the employer:
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) (emphasis added). The plain wording of the statute precludes a contribution
claim inasmuch as Georgia-Pacific’s and MCIC’s claimed entitlement to contribution is a claim
“at law or in admiralty on account of such injury or death.” Eagle-Picher, 937 F.2d at 635
(Ҥ 905(a) establishes that the [employer] cannot be a tortfeasor [as to its nonseaman maritime
workers]; therefore there can be no contribution action by a third party against the [employer]”).
See also Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 818 (2001) (“LHWCA
expressly pre-empts all other claims” against employers of nonseaman maritime workers);
Cooper Stevedoring, 417 U.S. at 113-15 (construing prior case of Atlantic Coast Line R. Co. v.
Erie Lackawanna R. Co., 406 U.S. 340 (1972), and concluding contribution claim in Erie did not
lie against employer based upon LHWCA provision limiting employer’s liability to
compensation under LHWCA; employer in Erie could not be considered joint tortfeasor); Oman

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v. Johns-Manville Corp., 482 F. Supp. 1060, 1072-73 (E.D. Va. 1980) (LHWCA bars
noncontractual tort indemnity and contribution claims by third party against employer), aff’d on
other grounds sub nom. White v. Johns-Manville Corp., 662 F.2d 243 (4th Cir. 1981) (reserving
judgment on district court’s holding as to LHWCA’s exclusivity provision in relation to
third-party claims).
Georgia-Pacific and MCIC try to circumvent this statutory immunity by claiming that
they are suing based, not upon any employment by CSXT of Arbogast that would fall within the
statute’s scope, but instead upon the part of Arbogast’s employment with CSXT that was
nonmaritime. The Court is unpersuaded that it is right to apportion liability between CSXT’s
employment of Arbogast subject to the LHWCA and CSXT’s employment of Arbogast not
subject to the LHWCA. On this point, the reasoning of the Maryland Court of Appeals in
Stanley v. W. Md. Ry. Co., 482 A.2d 881 (Md. 1984), rejecting a similar apportionment
argument, is persuasive. In Stanley, the court declined to limit LHWCA immunity from liability
to that portion of the plaintiff’s employment which fell under the Act; instead, all of his
employment with the same employer was covered, which barred his separate claim under the
Federal Employers Liability Act (“FELA”). Id. at 884-86 (LHWCA is exclusive remedy; no
separate action can be maintained under FELA).
The last argument of note by Georgia-Pacific and MCIC is that CSXT has not proven that
it is, on the facts, entitled to LHWCA immunity. Since the Court resolves this contention by
considering exhibits provided by CSXT with its motion, the matter is treated as a motion for
summary judgment.

CSXT has established that Arbogast’s claim against it for LHWCA

benefits, based upon his employment at CSXT’s Curtis Bay Coal and Ore Piers, was judged by
the United States Department of Labor to be within the statute’s purview. (See CSXT’s Mot.

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Ex. I, DOL Let. to CSXT, Apr. 28, 2015, ECF No. 560-12; see also Ex. G, Arbogast’s Claim for
Compensation, ECF No. 560-10; Notice of Employee’s Injury or Death, ECF No. 560-10.) To
the extent these Defendants suggest this Court should look behind the Department of Labor’s
determination that Arbogast’s employment with CSXT was within its jurisdiction under the
LHWCA, the Court rejects the suggestion. If, in the Department’s opinion, Arbogast’s claim is
within the purview of the LHWCA, then this Court will defer to its determination; the instant
case is not an appeal of the Department’s decision. Georgia-Pacific and MCIC further argue that
the Curtis Bay Coal and Ore Piers sit on a large tract of land, and it is possible that Arbogast did
not labor on any particular portion that adjoins navigable waters, as required for him to meet the
situs test under the LHWCA, see 33 U.S.C. § 903(a). Defendants’ shared doubt that Arbogast
was properly considered a covered employee under the LHWCA is not sufficient to create a
genuine dispute of material fact. They have provided no evidence to controvert the Department
of Labor’s determination that Arbogast’s claim against CSXT fell within the purview of the
LHWCA.

Consequently, the exclusivity provision of the LHWCA precludes Defendants’

contribution claims against CSXT.
IV. Conclusion
In conclusion, CSXT has shown that no genuine dispute of material fact exists and that it
is entitled to judgment as a matter of law on the third-party complaints of Georgia-Pacific and
MCIC for contribution. Having resolved all federal claims in the case, the case now returns to its
prior posture—before third-party complaints were filed—of being under consideration for
remand to Maryland state court of Plaintiffs’ claims against Georgia-Pacific and MCIC, which
are only supplemental claims under 28 U.S.C. § 1367(a). Defendants will be required to show
cause why the case should not be remanded. A separate order follows.
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DATED this 24th day of April, 2017.

BY THE COURT:

______________/s/____________________
James K. Bredar
United States District Judge

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