Deem v Air & Liquid Systems Corporation et al

Filing 415

ORDER denying as moot 153 Motion for Summary Judgment; granting 371 Motion to Dismiss. Defendant Crosby Valve LLC terminated. Signed by Judge Benjamin H. Settle. (MGC)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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SHERRI L. DEEM, individually and as
Personal Representative of the estate of
THOMAS A. DEEM, deceased,
Plaintiff,

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v.
AIR & LIQUID SYSTEMS
CORPORATION, et al.,

CASE NO. C17-5965 BHS
ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS AND DENYING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AS
MOOT

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Defendants.
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This matter comes before the Court on Defendant Crosby Valve, LLC’s

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(“Crosby”) motion for summary judgment, Dkt. 153, and motion to dismiss, Dkt. 371.

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The Court has considered the pleadings filed in support of and in opposition to the

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motions and the remainder of the file and hereby grants the motion to dismiss and denies

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the motion for summary judgment as moot.

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I.

PROCEDURAL HISTORY

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On November 20, 2017, Deem filed a complaint against Defendants Air & Liquid

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Systems Corporation, CBS Corporation, Crane Co., Foster-Wheeler Energy Corporation,

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General Electric Company, IMO Industries, Inc., and Warren Pumps, LLC. Dkt. 1

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(“Deem 1”).

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On June 28, 2018, Deem filed a second complaint against Defendants

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Anchor/Darling Valve Company, BW/IP, Inc., Blackmer Pump Company, Clark-

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Reliance Corporation, Cleaver-Brooks, Inc., Crosby Valve, LLC (“Crosby”), Flowserve

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Corporation, Flowserve US, Inc., FMC Corporation (“FMC”), Gardner Denver, Inc.,

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Goulds Pumps, Inc., Grinnell, LLC, Hopeman Brothers, Inc., ITT, LLC, Ingersoll-Rand

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Company, Jerguson Gage & Valve, John Crane, Inc., McNally Industries, LLC

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(“McNalley”), Velan Valve Corp., Viad Corp., Viking Pump, Inc., Weir Valves &

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Controls USA, Inc., and The WM Powell Company. C18-5527-BHS, Dkt. 1 (“Deem 2”).

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On December 13, 2018, the Court granted in part and denied in part Deem’s

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motion to consolidate the cases. Dkt. 52. The Court consolidated the cases through

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“disposition of summary judgment or such other time prior to trial as the Court deems

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appropriate” and denied the motion as to the request to consolidate them for trial. Id. at

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2.

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On April 25, 2019, the Court granted FMC and McNalley’s motion for summary

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judgment concluding that Deem’s claim for wrongful death under Washington law was

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barred by the statute of limitations. Dkt. 105.

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On May 23, 2019, Crosby filed a motion for summary judgment. Dkt. 153. On

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June 10, 2019, Deem responded. Dkt. 183. On June 14, 2019, Crosby replied. Dkt. 189.

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On August 16, 2019, Deem filed an amended complaint asserting claims for

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wrongful death under maritime law. Deem 2, Dkt. 92.

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On August 29, 2019, Crosby filed a motion to dismiss Deem’s amended

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complaint. Dkt. 3712. On September 16, 2019, Deem responded. Dkt. 396. On

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September 20, 2019, Crosby replied. Dkt. 397.

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II. FACTUAL BACKGROUND
Although the majority of the facts are set forth in a previous order, see Dkt. 408,

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the facts relevant to the instant motion are undisputed. On February 20, 2015, Mr.

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Deem’s physicians diagnosed him with mesothelioma and on July 3, 2015, Mr. Deem

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died due to that illness. On June 28, 2018, Deem filed a complaint against Crosby.
III. DISCUSSION

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A.

Motion to Dismiss
Crosby moves to dismiss Deem’s maritime claims arguing that the claims are

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barred by the statute of limitations. Dkt. 371. Under maritime law “a civil action for

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damages for personal injury or death arising out of a maritime tort must be brought

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within 3 years after the cause of action arose.” 46 U.S.C. § 30106. A cause of action

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accrues when plaintiff “ha[s] a reasonable opportunity to discover his injury, its cause,

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and the link between the two.” Crisman v. Odeco, Inc., 932 F.2d 413, 415 (5th Cir.

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1991). The clock starts ticking for purposes of the statute of limitations for claims under

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general maritime law when a plaintiff knew or should have known of his or her injury

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and its causes. See White v. Mercury Marine, 129 F.3d 1428 (11th Cir. 1997).

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In this case, the question is whether the statute of limitations for wrongful death

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claims begins when the injury is discovered or when the person dies from that injury. In

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the most straightforward case, the injury and death occur on the same day with all

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limitations periods beginning on that day. On the other end of the spectrum, a plaintiff

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would know of his injury on one date and then pass away someday after the three-year

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statute of limitations had run. For example, in Wade v. Clemco Indus. Corp., CV 16-502,

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2018 WL 263231 (E.D. La. Jan. 2, 2018), the injured worker passed away over forty

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years after he was diagnosed with silicosis. Upon his death, his wife brought a wrongful

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death action against numerous defendants alleging that they caused the silicosis and

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eventual death. Id. at *2. The court dismissed the claim as time barred concluding that

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the widow could not bring a claim that her husband could not have brought himself. Id.

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at *3. Specifically, the court stated that the “statute of limitation runs from ‘the date of

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such wrongful act, neglect or default’ and not from the date of death, and therefore the

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running of time was determined from the date of the injury.” Id. (citing The Law of

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Maritime Personal Injuries § 12:13.).

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Unlike the plaintiff in Wade, Mr. Deem’s fatal prognosis involved months instead

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of years. Deem, however, fails to provide any authority or persuasive argument why Mr.

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Deem’s death within the statute of limitations for this known injury should reset or start a

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new statute of limitations for claims based on that alleged wrongful death. The date of

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knowledge of his injury did not change, and neither did the fatal prognosis. From that

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date, Mr. Deem had three years to bring this action. Deem fails to submit, and the Court

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is unaware of, any authority for the proposition that Mr. Deem could not have sought

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damages for both his past and existing damages as well as future damages related to that

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fatal prognosis. Sadly, Mr. Deem died within five months of his diagnosis.

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At that point, the legal terminology changed but the date both he and his wife

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knew of his injury did not change. On this issue, Deem also fails to cite, and the Court is

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unaware of any authority, for the proposition that a new claim arose upon his death for

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damages that could not have been pursued before his death with the knowledge of a fatal

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prognosis. Thus, the running of the statute of limitations starts at the time of knowledge

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of the injury and not at the time of death. Wade, 2018 WL 263231 at *3. Therefore, the

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Court grants Crosby’s motion to dismiss because Deem’s claims are barred by the statute

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of limitations.

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IV. ORDER
Therefore, it is hereby ORDERED that Crosby’s motion for summary judgment,
Dkts. 153, is DENIED as moot and motion to dismiss, Dkt. 371, is GRANTED.

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The Clerk shall terminate Crosby.

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Dated this 6th day of December, 2019.

A

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BENJAMIN H. SETTLE
United States District Judge

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