The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CALLEN DEMPSTER et al. CIVIL ACTION
VERSUS NO. 20-95
LAMORAK INSURANCE CO. et al. SECTION: “G”(1)
ORDER AND REASONS
In this litigation, Plaintiffs Tanna Faye Dempster, Steven Louis Dempster, Janet Dempster
Martinez, Marla Dempster Loupe, Callen Dempster, Jr., Annette Dempster Glad, and Barnett
Dempster’s (collectively, “Plaintiffs”) allege that Decedent Callen L. Dempster (“Decedent”) was
exposed to asbestos and asbestos-containing products that were designed, manufactured, sold,
and/or supplied by a number of Defendant companies while Decedent was employed by
Huntington Ingalls Incorporated (“Avondale”).1 Pending before the Court is Defendants
Huntington Ingalls Incorporated (“Avondale”), Albert L. Bossier Jr. (“Bossier”), and Lamorak
Insurance Company’s (“Lamorak”) (collectively, the “Avondale Interests”) “Motion in Limine
to Prohibit References at Trial to Insurance and/or Ability to Pay.”2 Numerous Defendants join
1 See Rec. Doc. 1-2; Rec. Doc. 1-8. On August 6, 2020, Tanna Faye Dempster, Steven Louis Dempster,
Janet Dempster Martinez, Marla Dempster Loupe, Callen Louis Dempster, Jr., Annette Ruth Dempster Glad, and
Barnett Lynn Dempster were substituted as plaintiffs for Louise Ella Simon Dempster. Rec. Doc. 239. Plaintiffs
bring claims against Lamorak Insurance Company, Huntington Ingalls Inc., Albert Bossier, Jr., J. Melton Garrett,
Eagle, Inc., Bayer Cropscience, Inc., Foster-Wheeler LLC, General Electric Co., Hopeman Brothers, Inc., McCarty
Corporation, Taylor-Seidenbach, Inc., CBS Corporation, Uniroyal, Inc., International Paper Company, Houston
General Insurance Company, Berkshire Hathaway Specialty Insurance Company, Northwest Insurance Company,
United Stated Fidelity and Guaranty Company, Fist State Insurance Company, The American Insurance Company,
Louisiana Insurance Guaranty Association, and the Traveler’s Indemnity Company. Rec Doc. 1-8 at 2–3.
2 Rec. Doc. 65.
the motion.3 Plaintiffs oppose the motion in limine.4 Considering the motion, the memoranda in
support and in opposition, the record, and the applicable law, the Court grants the motion in part
and denies the motion in part.
I. Background
In this litigation, Plaintiffs allege that Mr. Dempster was employed by Avondale from
1962 to 1994.5 During that time, Plaintiffs aver that Mr. Dempster was exposed to asbestos and
asbestos-containing products in various locations and work sites, resulting in Mr. Dempster
breathing in asbestos fibers and later developing asbestos-related cancer.6 Plaintiffs assert strict
liability and negligence claims against various Defendants.7
Decedent filed a “Petition for Damages” in the Civil District Court for the Parish of
Orleans, State of Louisiana, on March 14, 2018.8 Defendants Huntington Ingalls Incorporated,
Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company (the “Removing Parties”)
removed the case to the United States District Court for the Eastern District of Louisiana for the
first time on June 21, 2018.9 On January 7, 2019, this Court remanded the case to the Civil District
Court for the Parish of Orleans.10
Decedent passed away on November 24, 2018, and a First Supplemental and Amending
3 Rec. Docs. 57, 175, 177.
4 Rec. Doc. 141.
5 Rec. Doc. 1-2 at 5.
6 Id.
7 Id. at 7–8.
8 Id. at 2–3
9 Case No. 18-6158, Rec. Doc. 1 at 2.
10 Case No. 18-6158, Rec. Doc. 89.
Petition for Damages was filed in state court substituting Decedent’s heirs as Plaintiffs on January
17, 2019.11 Trial was scheduled to begin before the state trial court on January 13, 2020.12
However, on January 9, 2020, Avondale removed the case to the United States District Court for
the Eastern District of Louisiana for a second time.13 On January 28, 2020, the Court denied the
motion to remand, finding that this case was properly removed to this Court under the federal
officer removal statute.14
On February 26, 2020, the Avondale Interests filed the instant motion in limine.15
Numerous Defendants join the motion.16 On March 17, 2020, Plaintiffs filed an opposition to the
instant motion.17 On May 5, 2020, the Court continued the May 18, 2020 trial date due to COVID-
19.18
II. Parties’ Arguments
A. The Avondale Interests’ Arguments in Support of the Motion
The Avondale Interests move the Court to issue an order prohibiting references to: (1) any
insurance covering these defendants for any alleged liability in this matter; and (2) the defendants’
ability to pay a potential judgment.19 The Avondale Interests assert that evidence of insurance is
11 Rec. Doc. 1-8.
12 Rec. Doc. 1-12.
13 Rec. Doc. 1.
14 Rec. Doc. 17.
15 Rec. Doc. 65.
16 Rec. Docs. 57, 175, 177.
17 Rec. Doc. 141.
18 Rec. Doc. 225.
19 Rec. Doc. 65-1 at 1.
inadmissible when such evidence has no purpose other than to establish negligence or to unfairly
prejudice the jury.20 The Avondale Interests contend that the only purpose for any reference to
insurance coverage in this case would be to influence the jury to inflate the award or to find
liability as to the Avondale Interests so as to increase the sources of payments for the award.21
B. Plaintiffs’ Arguments in Opposition to the Motion
In opposition, Plaintiffs argue that the motion is vague, overly broad, and premature.22
Plaintiffs note that they assert direct action claims under Louisiana Revised Statute § 22:1269
(the “Louisiana Direct Action Statute”) against Berkshire Hathaway Specialty Insurance
Company, First State Insurance Company, Houston General Insurance Company, Lamorak
Insurance Company, Liberty Mutual Insurance Company, the Travelers Indemnity Company, and
United States Fidelity and Guaranty Company.23 Plaintiffs note that they are also alleging that
certain defendants are professional vendors, which requires a showing of the size, volume, and
merchandising practices of the companies.24 Additionally, Plaintiffs note that they are seeking
punitive damages against certain defendants, including the Avondale Interests.25 Thus, Plaintiffs
assert that an order prohibiting references to insurance coverage and/or ability to pay, would
effectively prohibit Plaintiffs from presenting their case.26
20 Id.
21 Id. at 3–4.
22 Rec. Doc. 141 at 1.
23 Id. at 2.
24 Id.
25 Id.
26 Id.
III. Legal Standard
Federal Rule of Evidence 411 provides:
Evidence that a person was or was not insured against liability is not admissible to
prove whether the person acted negligently or otherwise wrongfully. But the court
may admit this evidence for another purpose, such as proving a witness’s bias or
prejudice or proving agency, ownership, or control.
Rule 411 rests on two premises. “The first is the belief that insurance coverage reveals little about
the likelihood that one will act carelessly. . . . Thus, the relevance of the evidence of coverage is
doubtful.”27 The second is a “concern that the evidence would be prejudicial—that the mention
of insurance invites higher awards than are justified, and conversely, that the sympathy that a jury
might feel for an uninsured defendant who must pay out of his own pocket could interfere with
its evaluation of the evidence under the appropriate standard of proof.”28
IV. Analysis
The Avondale Interests move the Court to issue an order prohibiting references to: (1) any
insurance covering these defendants for any alleged liability in this matter; and (2) the defendants’
ability to pay a potential judgment.29 The Court addresses each of these issues in turn.
A. References to Insurance Coverage
The Avondale Interests contend that evidence regarding insurance coverage should be
excluded because the only purpose for any such references would be to influence the jury to
inflate the award or to find liability as to the Avondale Interests so as to increase the sources of
payments for the award.30 In opposition, Plaintiffs note that they are bringing direct action claims
27 Insurance against liability as proof of negligence, 1 McCormick On Evid. § 201 (8th ed.)
28 Id.
29 Rec. Doc. 65-1 at 1.
30 Id. at 3–4.
against numerous insurance companies.31
In Reed v. General Motors Corporation, the Fifth Circuit considered Rule 411 in a case
where an insurance company was named as a defendant.32 The Fifth Circuit stated that the fact
that each party was insured had “independent, substantive evidentiary relevance.”33 However, the
Fifth Circuit determined that the limits of coverage should have been excluded pursuant to Rule
411 because it was not relevant to any issue in the case.34
In this litigation, Plaintiffs bring direct action claims under the Louisiana Direct Action
Statute against Berkshire Hathaway Specialty Insurance Company, First State Insurance
Company, Houston General Insurance Company, Lamorak Insurance Company, Liberty Mutual
Insurance Company, the Travelers Indemnity Company, and United States Fidelity and Guaranty
Company.35 The Louisiana “Direct Action Statute affords a victim the right to sue the insurer
directly when the liability policy covers a certain risk.”36 Like in Reed, the fact that certain parties
were insured has independent, substantive evidentiary relevance. However, Plaintiffs have not
provided any reason why the limits of coverage should be admitted in this case. Accordingly, the
Court excludes any references to the limits of coverage provided by the insurance policies at issue
in this case.
31 Rec. Doc. 141 at 2.
32 Id.
33 Id.
34 Id.
35 Rec. Doc. 1-2 at 5.
36 Soileau v. Smith True Value & Rental, 2012-1711 (La. 8/30/2013); 144 So. 3d 771, 780.
B. References to Ability to Pay a Judgment
The Avondale Interests also move the Court to issue an order excluding references to the
defendants’ ability to pay a potential judgment.37 In opposition, Plaintiffs note that they are also
alleging that certain defendants are professional vendors, which requires a showing of the size,
volume, and merchandising practices of the companies.38 Additionally, Plaintiffs note that they
are seeking punitive damages against certain defendants, including the Avondale Interests.39
Thus, Plaintiffs assert that an order prohibiting references to insurance coverage and/or ability to
pay, would effectively prohibit Plaintiffs from presenting their case.40
Plaintiffs bring claims against certain defendants as professional vendors.41 The Louisiana
Supreme Court adopted the “professional vendor” theory of liability in Chappuis v. Sears
Roebuck & Co.42 Under this theory of liability, the professional vendor can be held liable for the
same conduct as a manufacturer.43 To prevail against a professional vendor of asbestos-containing
products, a plaintiff must show: (1) the defendant held the products out to the public as its own,
and (2) the size, volume, and merchandising practices of the defendant bring it within the class
of professional vendors, who are presumed to know of the defects in their wares, size, volume,
37 Rec. Doc. 65-1 at 1.
38 Rec. Doc. 141 at 2.
39 Id.
40 Id.
41 Rec. Doc. 1-2 at 21–23.
42 Hoerner v. ANCO Insulations, Inc., 2000-2333 (La. App. 4 Cir. 1/23/02), 812 So. 2d 45, 59 (citing
Chappuis v. Sears Roebuck & Co., 358 So. 2d 926 (La. 1978)).
43 Id.
and merchandising practices.44
Additionally, Plaintiffs request punitive damages against several defendants, including
the Avondale Interests.45 Evidence of a defendant’s financial worth and ability to pay may be
admissible for the purpose of evaluating the amount of punitive damages that should be
awarded.46 Therefore, the Court denies the Avondale Interests’ request that the Court exclude all
references to the defendants’ ability to pay. Such evidence may be relevant to several issues in
this case. However, Plaintiffs are cautioned that any such evidence should not be used to incite
sympathy or inflame the jury. The Avondale Interests may raise this issue again at trial, if
necessary.
Accordingly,
44 Id. at 60.
45 Rec. Doc. 1-8 at 3.
46 U.S. E.E.O.C. v. Denham Springs Pub. Co., No. 10-614, 2012 WL 262268, at *2 (M.D. La. Jan. 27, 2012).
See also Wooley v. Lucksinger, 2009-0571 (La. 4/1/11), 61 So. 3d 507, 635.
IT IS HEREBY ORDERED that Defendants’ “Motion in Limine to Prohibit References
at Trial to Insurance and/or Ability to Pay’*’ is GRANTED IN PART and DENIED IN PART.
The motion is GRANTED to the extent that it requests exclusion of any references to the limits
of coverage provided by the insurance policies at issue in this case. The motion in DENIED in
all other respects.
NEW ORLEANS, LOUISIANA, this 21St_ day of September, 2020.
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
47 Rec. Doc. 65.