Cortez v. Lamorak Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CALLEN J. CORTEZ CIVIL ACTION

VERSUS NO. 20-2389

LAMORAK INSURANCE COMPANY, SECTION “R” (1)

ET AL.

ORDER AND REASONS

Before the Court is defendant Huntington Ingalls, Inc.’s (“Avondale”)

motion for summary judgment, seeking dismissal of plaintiff’s claims against

it.1 The motion is opposed by defendants General Electric Co., Foster

Wheeler LLC, and ViacomCBS, Inc.;2 Union Carbide Corp. and

BayerCropScience, Inc.;3 and plaintiff Callen Cortez (collectively, the

“opposing parties”).4

For the following reasons, the Court grants the motion in part, and

denies the motion in part.

1 R. Doc. 386.

2 R. Doc. 487.

3 R. Doc. 531.

4 R. Doc. 580.

I. BACKGROUND

This is an asbestos exposure case. Plaintiff Callen Cortez alleges that

he contracted mesothelioma as a result of exposure to asbestos during his

employment with various companies, including Avondale,5 as well as take-

home exposure resulting from his father’s6 and brothers’ work with various

companies, including Avondale.7

Plaintiff lived in his family home in Kraemer, Louisiana, starting from

his birth in 1951, until he married and moved out in May of 1972.8 Plaintiff’s

brother, Daniel Cortez, also lived in the home. Daniel began working at the

Avondale Shipyards on August 29, 1967,9 and remained living with plaintiff

at their family home until Daniel married and moved out in July of 1968.10

Daniel testified that, during these first ten to eleven months at Avondale, he

worked with asbestos cloth and other insulation materials, and that fibers

released from cutting and tearing the cloth got onto his work clothes.11 He

further testified that, after work each day, he would come home, hang up his

5 R. Doc. 1-1 at 3-6 (Complaint ¶¶ 3, 8).

6 Id. at 7-9 (Complaint ¶¶ 11-16).

7 R. Doc. 149 at 1-2 (Second Amended Complaint ¶¶ 94-95).

8 R. Doc. 580-4 at 2-3 (Discovery Deposition of Callen Cortez at 100:11-

101:8).

9 R. Doc. 580-5 at 4 (Deposition of Daniel Cortez at 12:3-13).

10 Id. at 3-4 (Deposition of Daniel Cortez at 11:21-12:2).

11 Id. at 16 (Deposition of Daniel Cortez at 36:6-13).

clothes, and, with plaintiff’s help, beat the fibers off his clothes.12 Avondale’s

expert, Dr. Brent Staggs, opined at his deposition that asbestos taken home

on Daniel Cortez’s clothes significantly contributed to plaintiff’s

development of mesothelioma.13

On March 6, 1969, plaintiff began working for Avondale.14 He worked

as a welder and tacker helper, primarily at Avondale’s Westwego Yard, until

May 31, 1974.15 Plaintiff testified that, throughout his employment with

Avondale, he used asbestos cloth to protect from burns and hot sparks.16

Plaintiff was diagnosed with mesothelioma on June 2, 2020.17 On July

1, 2020, plaintiff filed suit in the Civil District Court for the Parish of Orleans

against Avondale and approximately thirty-four other defendants, including

former employers, manufacturers, and insurance companies.18 On August

31, 2020, the case was removed to federal court.19

12 Id. at 5-6 (Deposition of Daniel Cortez at 17:16-18:17).

13 R. Doc. 580-8 at 9 (Deposition of Dr. Brent Christopher Staggs at 64:8-

16).

14 R. Doc. 609-3 at 2 (Discovery Deposition of Callen Cortez at 109:1-9).

15 Id.

16 Id. at 8-9 (Discovery Deposition of Callen Cortez at 118:19-119:12).

17 R. Doc. 1-1 at 10 (Complaint ¶ 17).

18 Id. at 1-3 ¶¶ 1-2; id. at 45-48.

19 R. Doc. 1 (Notice of Removal).

On February 9, 2022, Avondale moved for summary judgment.20

Avondale contends that plaintiff’s claims against it should be dismissed

because they are preempted by the Longshore and Harbor Workers’

Compensation Act (“LHWCA”). It seeks dismissal of plaintiff’s claims arising

out of his own employment with Avondale, as well as his claims arising out

of alleged exposure to asbestos from clothing that his brother brought home

from Avondale.21 Avondale also contends that plaintiff’s intentional-tort

claim must be dismissed, because there is no intentional-tort exception to

the LHWCA, and, even if there were, plaintiff has failed to create an issue of

material fact on such a claim.22

Multiple parties oppose Avondale’s motion. Specifically, co-

defendants General Electric Co., Foster Wheeler LLC, ViacomCBS, Inc.,23

Union Carbide Corp., and BayerCropScience, Inc.24 oppose the motion.

Plaintiff also opposes the motion.25

The opposing parties contend that plaintiff’s claims against Avondale

are not preempted by the LHWCA because his injuries fall within the

20 R. Doc. 386.

21 Id.

22 Id.

23 R. Doc. 487.

24 R. Doc. 531.

25 R. Doc. 580.

“twilight zone” of concurrent federal and state jurisdiction over workers’

compensation claims. They also argue that, even if the LHWCA preempts

plaintiff’s claims against Avondale arising out of his employment with

Avondale, the statute does not preempt his “third party” claims arising out

of Daniel Cortez’s take-home asbestos. Finally, the opposing parties contend

that the LHWCA has an intentional-tort exception, and that material facts

remain in dispute as to such a claim.

The Court considers the parties’ arguments below.

II. LEGAL STANDARD

Summary judgment is warranted when “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); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

dispute to any material fact exists, [the Court] consider[s] all of the evidence

in the record but refrain[s] from making credibility determinations or

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are

drawn in favor of the nonmoving party, but “unsupported allegations or

affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’

are insufficient to either support or defeat a motion for summary judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute

of fact exists if the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,

481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the

burden of proof at trial, the moving party “must come forward with evidence

which would ‘entitle it to a directed verdict if the evidence went

uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,

1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,

951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by

either countering with evidence sufficient to demonstrate the “existence of a

genuine dispute of material fact,” or by “showing that the moving party’s

evidence is so sheer that it may not persuade the reasonable fact-finder to

return a verdict in favor of the moving party.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings, but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry

of summary judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).

III. DISCUSSION

Avondale’s motion presents three distinct questions: (1) whether

plaintiff’s tort claims against Avondale as his employer are preempted by the

LHWCA; (2) whether plaintiff’s tort claims against Avondale as his brother’s

employer, i.e., as the alleged source of take-home exposure before plaintiff’s

work for Avondale, are preempted by the LHWCA; and (3) whether plaintiff

may maintain his intentional-tort claim against Avondale.

The first question, whether the LHWCA preempts plaintiff’s employee-

employer claims, has been answered in the affirmative in multiple cases

before this Court and other sections of this Court. See Barrosse v.

Huntington Ingalls, Inc., No. 20-2042, 2021 WL 4355415 (E.D. La. Sept. 24,

2021); Krutz v. Huntingon Ingalls, Inc., No. 20-1722, 2021 WL 5893981

(E.D. La. Apr. 22, 2021); Hulin v Huntington Ingalls, Inc., No. 20-924, 2020

WL 6059645 (E.D. La. Oct. 14, 2020); Dempster v. Lamorak Ins. Co., No.

20-95, 2020 WL 5071115 (E.D. La. Aug. 26, 2020); Cobb v. Sipco Servs. &

Marine, Inc., No. 95-2131, 1997 WL 159491 (E.D. La. Mar. 27, 1997). The

Court therefore addresses this question first, and, in so doing, largely

reiterates its prior analyses on this issue. The Court then proceeds to the

second and third issues, which have not been addressed as extensively.

A. Preemption of Plaintiff’s Claims Against Avondale

Arising out of His Employment

The LHWCA is a federal workers’ compensation statute providing

covered maritime workers with “medical, disability, and survivor benefits for

work-related injuries and death.” MMR Constructors, Inc. v. Dir., Office of

Workers’ Comp. Programs, 954 F.3d 259, 262 (5th Cir. 2020) (citation and

internal quotation marks omitted). Before 1972, the statute covered only

workers on “navigable waters of the United States (including any dry dock).”

Id. (citing 33 U.S.C. § 903(a) (pre-1972)). But, in 1972, Congress amended

the Act and “extend[ed] the LHWCA landward.” Sun Ship, Inc. v.

Pennsylvania, 447 U.S. 715, 719 (1980).

1. Applicable Version of the LHWCA

Plaintiff argues that the pre-1972 version of the law applies to this

dispute,26 while Avondale contends that the post-1972 Act applies.27

Specifically, Avondale argues that the Court must apply the Act as it existed

when Cortez’s disease manifested, i.e., in 2020, to determine whether the

alleged injuries are covered. 28 Plaintiff argues that the date of his exposure

governs which version applies.29

Courts use the “date of injury” to determine which version of the

LHWCA applies. Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1029 (5th

Cir. 1985). In the context of long-latency diseases arising from asbestos

exposure, the Fifth Circuit in Castorina held that manifestation, not

exposure, determines the date of injury. Id. at 1031. There, plaintiff's

disease, asbestosis, manifested in 1979. Id. at 1028. His exposures occurred

between 1965 and 1972. Id. at 1027. The Fifth Circuit looked to judicial

26 R. Doc. 580 at 23-25.

27 R. Doc. 386-1 at 5-6.

28 Id.

29 R. Doc. 580 at 23-25.

authority stating that the LHWCA “is not concerned with pathology, but with

industrial disability; and a disease is no disease until it manifests itself.” Id.

(quoting Grain Handling Co. v. Sweeney, 102 F.2d 464 (2d Cir.), cert.

denied, 308 U.S. 570 (1939)). It also inferred Congress’s intent from

Congress’s express adoption of the manifestation rule in 1984. Id. (citing

Pub. L. No. 98–426, § 28(g)(1), 98 Stat. 1639 (1984)). In the 1984

amendments to the LHWCA, Congress provided a specific definition of

“injury” for occupational diseases:

[I]n the case of an occupational disease which does not

immediately result in a disability or death, an injury shall be

deemed to arise on the date on which the employee or claimant

becomes aware, or in the exercise of reasonable diligence or by

reason of medical advice should have been aware, of the

disease . . . .

Pub. L. No. 98-426, § 28(g)(1), 98 Stat. 1639 (1984). Under Castorina and

the 1984 amendments, Cortez’s injury is deemed to arise on the date it

manifested. Because Cortez’s disease manifested in 2020, the Court applies

the LHWCA as it existed in 2020, the date of his injury.30

Plaintiff disputes this legal conclusion by pointing to dicta in a footnote

in Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 466 n.6 (5th Cir. 2016),31

in which the Fifth Circuit stated:

30 R. Doc. 1-1 at 10 (Complaint ¶ 17).

31 R. Doc. 580 at 23-25.

Defendant’s preemption defense is governed by the law at the

time [plaintiff] was exposed to asbestos, which occurred before

the Louisiana Worker’s Compensation Act was amended in 1989

to eliminate any concurrent coverage between that Act and the

federal Longshore and Harbor Workers’ Compensation Act. See

La. Rev. Stat. 23:1035.2 (providing that “[n]o compensation shall

be payable in respect to the disability or death of any employee

covered by . . . the Longshoremen’s and Harbor Worker's

Compensation Act, or any of its extensions . . .”).

Id. (emphasis added). The Court does not find that this footnote has the

import plaintiff attributes to it.

In the Savoie opinion, the court makes clear that it is discussing the

applicable version of state law. For example, in the footnote upon which

plaintiffs rely, the Fifth Circuit noted that the plaintiff’s exposure “occurred

before the Louisiana Worker’s Compensation Act was amended in 1989 to

eliminate any concurrent coverage between that Act and the federal

Longshore and Harbor Workers’ Compensation Act.” Id. (citing La. Rev.

Stat. § 23:1035.2). If the court were not referring to the appropriate version

of state law, there would have been no need to discuss the elimination of

concurrent state-federal workers’ compensation coverage. The references to

state law in the same footnote and throughout the opinion support the

Court’s conclusion that the Fifth Circuit was referring to the applicable state

law, not which version of the LHWCA applies. See id. at 464 (“[Wrongful

death] claims are governed by the [state] law in effect at the time the

decedent passes away,” but “survival claims based on asbestos exposure are

governed by the [state] law in effect when the exposure occurred.” (first

citing Rando v. Anco Insulations, Inc., 16 So.3d 1065, 1072 (La. 2009), and

then citing Landry v. Avondale Indus., Inc., 877 So.2d 970, 972 (La. 2004)).

Further, the Fifth Circuit expressly stated that it did not decide whether

defendant had a colorable federal preemption defense. Id. at 466. One Fifth

Circuit panel cannot overrule another without an intervening change in the

law, see United States v. Darrington, 351 F.3d 632, 634 (5th Cir. 2003), and

in the event of a conflict, the earlier case controls. Texaco Inc. v. La. Land &

Expl. Co., 995 F.2d 43, 44 (5th Cir. 1993). But in any event, the Court does

not find that the Fifth Circuit intended to overrule its earlier, reasoned

decision in Castorina by way of dicta in a footnote.

Because Castorina’s manifestation rule controls, the Court applies the

LHWCA as it existed in 2020, when Cortez’s mesothelioma manifested.32

2. Applicability of the Post-1972 LHWCA to Cortez’s Injuries

Since the 1972 amendments, the LHWCA covers injuries of workers

who meet the Act’s “status” and “situs” requirements. See New Orleans

Depot Servs. v. Dir., Office of Worker’s Comp. Programs, 718 F.3d 384, 389

(5th Cir. 2013). Plaintiff easily meets these criteria.

32 R. Doc. 1-1 at 10 (Complaint ¶ 17).

The “status” requirement limits application of the LHWCA to

“traditional maritime occupations.” Id.; see 33 U.S.C. § 902(3) (defining

“employee” as “any person engaged in maritime employment, including any

longshoreman or other person engaged in longshoring operations, and any

harbor-worker including a ship repairman, shipbuilder, and ship-breaker”

(emphasis added)). The status test is satisfied when the person is “directly

involved in an ongoing shipbuilding operation.” Ingalls Shipbuilding Corp.

v. Morgan, 551 F.2d 61, 62 (5th Cir. 1977).

Plaintiff worked as a tacker helper and welder on vessels at Avondale’s

Westwego Yard. This type of work satisfies the status test because it is an

“essential step of the shipbuilding process.” Id. (holding that a worker who

died when a steel plate he was cleaning fell on him satisfied the status test

because the “cleaning task was an essential step of the shipbuilding

process”); see also McLaurin v. Noble Drilling (US) Inc., 529 F.3d 285, 289

(5th Cir. 2008) (stating that the LHWCA applies to “longshoremen,

shipbuilders, ship repairers, and various harbor workers, such as carpenters,

cleaners, or painters”); 1 Robert Force and Martin J. Norris, The Law of

Maritime Personal Injuries § 3:9 (5th ed.) (stating that the LHWCA

specifically includes “any harborworker,” which includes “shipcleaners, tank

cleaners, riggers, carpenters, ship ceilers, cargo checkers, cargo weighers,

cargo talleyers, port watchmen, electricians, painters, mechanics, etc.”).

Thus, the Court finds that the LHWCA’s status test is satisfied.

The “situs” test, extended by Congress in 1972, requires that the injury

occur on the “navigable waters of the United States” and “any adjoining pier,

wharf, dry dock, terminal, building way, marine railway, or other adjoining

area customarily used by an employer in loading, unloading, repairing,

dismantling, or building a vessel.” 33 U.S.C. § 903(a); see also Sun Ship, 447

U.S. at 719 (“In 1972, Congress . . . extend[ed] the LHWCA landward beyond

the shoreline of the navigable waters of the United States.”). There is no

dispute that Cortez’s exposure to asbestos occurred in a covered situs—

Avondale Shipyards. See Pitre v. Huntington Ingalls, Inc., No. 17-7029,

2018 WL 2010026, at *3 (E.D. La. Apr. 30, 2018) (“Avondale’s vessel

construction and repair activities occurred on the west bank of the

Mississippi River adjacent to navigable waters.”).

Cortez’s status falls within the coverage of the LHWCA, and his injuries

occurred on a covered situs. Therefore, the Court finds that plaintiff could

have brought his claims under the LHWCA.

3. LHWCA Preemption of Tort Claims Against Employers

Avondale contends that the LHWCA immunizes it from tort liability.

Section 905(a) of the LHWCA, the employer immunity provision, states:

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). Based on this provision, Avondale argues that plaintiff’s

state-law tort claims conflict with the LHWCA, and are therefore preempted.

The opposing parties contend that a state may constitutionally provide for

state-law tort remedies concurrently with the LHWCA, and that, therefore,

the LHWCA does not preempt plaintiff’s claims.

Federal law applies to questions of preemption. Hetzel v. Bethlehem

Steel Corp., 50 F.3d 360, 363 (5th Cir. 1995). Federal law can preempt state

law in three ways: (1) express preemption, where Congress expresses an

explicit intent to preempt state law; (2) field preemption, where the “sheer

comprehensiveness” of the federal scheme implies congressional intent to

preempt state regulation in the area; or (3) conflict preemption, where the

state law either directly conflicts with the federal law or interferes with the

regulatory program established by Congress. Id. The U.S. Supreme Court

has set out “two cornerstones” of preemption jurisprudence. Wyeth v.

Levine, 555 U.S. 555, 565 (2009). First, the “ultimate touchstone” is “the

purpose of Congress.” Id. (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485

(1996)). Second, the Court must “start with the assumption that the historic

police powers of the States were not to be superseded by the Federal Act

unless that was the clear and manifest purpose of Congress,” especially when

the case involves a “field which the states have traditionally occupied.” Id.

(quoting Lohr, 518 U.S. at 485) (quotation marks omitted).

Because tort law is a field traditionally occupied by the States, the Court

starts with the assumption that Congress did not intend to supersede state

law when it enacted the LHWCA. But this assumption does not stand in face

of the text of the LHWCA, the purpose behind the statute, and the weight of

judicial authority.

Section 905(a) of the LHWCA provides that compensation under the

LHWCA is exclusive of all other employer liability, including for actions to

recover damages at law. 33 U.S.C. § 905(a). The plain language of this

provision “evidences an unmistakable intention to embody the quid pro quo

that defines most workmen’s compensation statutes.” Cobb, 1997 WL

159491, at *7 (citing Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935,

950 (3d Cir. 1990)). Specifically, the employee gets the benefit of no-fault

compensation, and the employer enjoys immunity from tort liability for

damages. Id. The Supreme Court recognized this exchange when it

explained:

[T]he [LHWCA is] not a simple remedial statute intended for the

benefit of the workers. Rather, it was designed to strike a balance

between the concerns of the longshoremen and harbor workers

on the one hand, and their employers on the other. Employers

relinquish their defenses to tort actions in exchange for limited

and predictable liability. Employees accepted the limited

recovery because they receive prompt relief without the expense,

uncertainty, and delay that tort actions entail.

Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S. 624, 636 (1983).

Allowing state-law tort claims against employers would contradict the text of

the statute and would frustrate the Act’s purpose by undermining the quid

pro quo.

Indeed, several courts have recognized as much. The Fifth Circuit held

in Rosetti v. Avondale Shipyards, Inc., that the LHWCA bars a “state law

negligence claim,” because “[u]nder the LHWCA, workers compensation is

the exclusive remedy for an injured employee against his employer.” 821

F.2d 1083, 1085 (5th Cir. 1987). Further, in Hetzel v. Bethlehem Steel Corp.,

the Fifth Circuit found that “[p]reemption of [a] state [tort] act is required to

avoid frustration of the policies and purpose behind the LHWCA.” 50 F.3d

at 366-67 (5th Cir. 1995). In Hetzel, the court reasoned that “[c]ongressional

policy would be frustrated if an injured worker were allowed to collect

benefits under the Act, and then sue his employer under a state statutory tort

theory.” Id. Similarly, the Third Circuit in Peter v. Hess Oil Virgin Islands

Corp., concluded that Ҥ 905(a) [of the LHWCA] and the Supremacy Clause

bar the Virgin Islands from imposing negligence liability on [a covered

employer.]” 903 F.3d at 953. The Peter court specifically noted that

Congress “intended that compensation, not tort damages, [was] to be the

primary source of relief for workplace injuries for longshoremen against

their employers.” Id. at 952.

Moreover, this Court has held, in three separate cases, that the LHWCA

preempts a state tort claim. See Krutz, 2021 WL 5893981, at *7; Hulin, 2020

WL 6059645, at *7; Cobb, 1997 WL 159491, at *8 ([A]pplication of Louisiana

tort law, which plaintiff concedes is not a workmen’s compensation remedy,

does not further the availability of no fault compensation, and it obstructs

the purposes of the LHWCA.”). Other sections of this Court have held the

same. See Barrosse, 2021 WL 4355415, at *10-11; Dempster, 2020 WL

5071115, at *7.

Because permitting plaintiff’s state tort claims against Avondale as his

employer would obstruct the purposes of the LHWCA, the Court finds that

these claims are preempted and must be dismissed.

The opposing parties’ arguments to the contrary are without merit.

First, they dedicate much of their briefing to the contention that Cortez’s

injuries occurred in the so-called “twilight zone” of concurrent state-federal

jurisdiction, and that his state claims are therefore permissible. Consistent

with prior district-court opinions, the Court rejects this argument.

The Supreme Court has long held that there are areas where a state

may legislate concurrently with the LHWCA. In Sun Ship, Inc. v.

Pennsylvania, the Supreme Court addressed the “single question” of

“whether a State may apply its workers’ compensation scheme to land-based

injuries that fall within the coverage of the [LHWCA], as amended in 1972.”

447 U.S. at 716 (emphasis added). Extending its prior “twilight zone”

jurisprudence, the Court unanimously held that it may, i.e., that the LHWCA

does not preempt concurrent state workers’ compensation remedies in these

areas. Id. The Court reasoned that, in the 1972 amendments to the Act,

Congress intended to “upgrade the benefits” available under inadequate

state compensation regimes, by guaranteeing the option of federal

compensation available under the LHWCA. Id. at 723. Sun Ship and other

“twilight zone” cases make clear that a state is not entirely precluded from

providing workers’ compensation remedies to workers covered by the

LHWCA. Similarly, in Hahn v. Ross Island Sand & Gravel Co., the U.S.

Supreme Court found that the LHWCA did not preclude a plaintiff’s

negligence claim brought pursuant to Oregon’s workers’ compensation

statute. 358 U.S. 272, 273 (1959). The plaintiff in Hahn sought benefits

through Oregon’s compensation regime, but his employer “elected to reject

them.” Id. In these circumstances, Oregon’s Workmen’s Compensation Act

allowed the employee to bring a negligence action for damages. The Court

expressly stated that the LHWCA “gave an injured waterfront employee an

election to recover compensation under either the [LHWCA] or the

Workmen’s Compensation law of the State in which the injury occurred.”

Id. (emphasis added). Hahn does not, as the opposing parties contend, hold

that the LHWCA permits ordinary tort claims. Rather, like Sun Ship, it holds

that a plaintiff may elect between federal compensation under the LHWCA

or state workers’ compensation.

Unlike in Sun Ship and Hahn, plaintiff here has not brought his claims

pursuant to a state workers’ compensation regime. Instead, plaintiff asserts

freestanding state tort claims against his employer. For the reasons already

given, the LHWCA preempts these claims against Avondale.

Second, the opposing parties argue that preemption does not apply

because plaintiff is not seeking benefits under the LHWCA. This Court has

rejected this argument before, and it rejects it again. See Krutz, 2021 WL

5893981, at *8 (rejecting plaintiff’s contention that his claims are not

preempted because he was not seeking LHWCA benefits); Hulin, 2020 WL

6059645, at *7 (same). The Fifth Circuit has made clear that, if the LHWCA

covers an employee’s injury, his only remedy against an employer lies in

workers’ compensation. Rosetti, 821 F.2d at 1085. That plaintiff has not

elected to pursue those benefits does not affect the preemptive power of the

Act. Permitting the tort claim merely because plaintiff has foregone the

LHWCA avenue would conflict with LHWCA’s text and undermine the quid

pro quo that Congress enacted.

Third and finally, the opposing parties passingly contend that a

dismissal of plaintiff’s claims against Avondale as his employer would violate

due process by divesting them of a right in their accrued claims.33 They

assert that such a result amounts to a denial of due process. Consistent with

prior rulings, this Court finds that neither the retroactive nor preemptive

effects of the LHWCA raise due-process concerns. See, e.g., Krutz, 2021 WL

5893981, at *11-12 (rejecting arguments that LHWCA preemption divested a

worker of his negligence claim in violation of due process). The opposing

parties have given the Court no reason to reach a different result in this case,

and have thus failed to carry their burden of establishing a due-process

violation.

For these reasons, the Court finds that the LHWCA preempts plaintiff’s

state-law negligence claims against Avondale, in its capacity as plaintiff’s

employer. The Court grants Avondale’s motion for summary judgment as to

these claims.

33 R. Doc. 531 at 17-19; R. Doc. 580 at 7.

B. Preemption of Plaintiff’s Claims Against Avondale

Arising out of His Brother’s Employment

Cortez does not sue Avondale only in its capacity as his employer. He

also brings tort claims arising out of his alleged exposure to asbestos that his

brother brought home from Avondale.34 Specifically, plaintiff asserts that

his brother, Daniel, worked for Avondale when plaintiff was a teenager, and

that during this period, Daniel brought asbestos home on his clothes.

Avondale’s expert, Dr. Staggs, testified that this exposure significantly

contributed to plaintiff’s development of mesothelioma.35 And Joseph

Holtshouser, a defense-side industrial hygiene expert, states in his expert

report that “the occupational health literature suggests that the earlier

exposures to airborne asbestos contribute more to the risk of developing

mesothelioma than do later exposures.”36

The parties dispute whether plaintiff’s tort claims against Avondale in

its capacity as Daniel Cortez’s employer are preempted by the LHWCA. The

Court begins with the language of the statute. The LHWCA covers

34 See R. Doc. 149 at 1-2 (Second Amended Complaint ¶¶ 94-95).

35 R. Doc. 580-8 at 9 (Deposition of Dr. Brent Christopher Staggs at 64:8-

16).

36 R. Doc. 580-36 at 2 (Expert Report of Joseph L. Houtshouser, CIH,

CSP) (Feb. 3, 2022).

“accidental injury or death arising out of and in the course of employment,

and such occupational disease or infection as arises naturally out of such

employment or as naturally or unavoidably results from such accidental

injury.” 33 U.S.C. § 902(2) (emphasis added). Similarly, the exclusivity

provision of the LHWCA provides that the “liability of an employer

prescribed in . . . this title shall be exclusive and in place of all other liability

of such employer to the employee.” 33 U.S.C. § 905(a) (emphasis added);

see also Rosetti, 821 F.2d at 1085 (“Under the LHWCA, workers[’]

compensation is the exclusive remedy for an injured employee against his

employer.” (emphasis added)).

Plaintiff’s claims based on his take-home exposure via Daniel do not

arise out of, and did not occur in the course of, plaintiff’s employment with

Avondale. On the contrary, this exposure predated and is unrelated to

plaintiff’s eventual work for Avondale. In this sense, plaintiff seeks not to

impose on Avondale any “liability [as] an employer . . . to [its] employee,” 33

U.S.C. § 905(a), but instead, liability as a non-employer tortfeasor to a then-

unrelated third party. As such, plaintiff’s claim against Avondale in its

capacity as his brother Daniel’s employer is materially indistinguishable

from plaintiff’s claims against his father’s employers for whom plaintiff

himself never worked.37 The Court finds that plaintiff is not deprived of a

tort claim for non-employment injuries suffered via his brother in the home,

merely because he later became an Avondale employee.

Another Louisiana district court reached the same result in an

analogous case, Greene v. Owens-Corning Fiberglas Corp., 682 F. Supp.

304, 306 (M.D. La. 1988). In Greene, plaintiff had worked as an insulator

for defendant Owens-Corning. Id. at 305. Plaintiff contracted asbestosis and

related lung disease, and filed suit against Owens-Corning and others,

seeking, inter alia, tort damages for alleged asbestos exposure from products

manufactured by defendant Owens-Corning while plaintiff was employed by

other companies. Id. The court considered whether the exclusivity provision

of the Louisiana Worker’s Compensation Act barred the products-liability

claim against Owens-Corning, and found that it did not. The court explained

that “plaintiff’s allegations of asbestos injury due to exposure from

defendant’s products while employed by others, do not arise out of the

employee-employer relationship of plaintiff and defendant; Owens-Corning

under these circumstances is essentially a third party manufacturer outside

of the plaintiff's employment relationship with another company.” Id. at

37 See R. Doc. 1-1 at 7-8 ¶ 11-14 (alleging take-home exposure attributable

to four of plaintiff’s father’s former employers).

306. The court rejected defendant’s “suggest[ion] that it should escape

liability for the separate, non-employment connected wrong because of its

possible worker’s compensation liability.” Id. In conclusion, the court wrote:

This court sees nothing inconsistent in holding Owens-Corning

liable for worker’s compensation because of harm done to

plaintiff during the employment and holding it liable for delictual

damages for torts committed following termination. Such a

result advances the purposes of both bodies of law—worker’s

compensation and tort—and does no violence to either. Plaintiff

claims that Owens-Corning committed torts which caused him

harm after his employment was terminated; if plaintiff can prove

that allegation, the Louisiana Worker’s Compensation Act should

not prevent plaintiff’s recovery of damages under tort law.

Id. at 307.

Similarly, in considering the exclusivity provisions of Pennsylvania’s

worker’s compensation law, the U.S. Court of Appeals for the Third Circuit

declined to bar plaintiffs’ tort claims arising out of “community” exposure to

asbestos that was attributable to a defendant-employer but occurred away

from the workplace. Shelly v. Johns-Manville Corp., 798 F.2d 93, 96 (3d Cir.

1986). The court held that, “to the extent plaintiffs alleged exposure away

from the workplace, they alleged violations that were entirely unrelated to

their employment,” which “affected them as members of the general public,

simply living in the neighborhood.” Id. at 99.

This Court recognizes that both Greene and Shelly apply state worker’s

compensation law, rather than the LHWCA, and deal with tort allegations

that do not exactly mirror plaintiff’s take-home allegations in this case.

Nonetheless, Greene and Shelly illustrate the principle that the exclusive

liability of an employer to an employee under a worker’s compensation

regime does not shield a covered employer from tort liability for non-

employment harms merely because the employer previously employed, or

would eventually employ, the tort claimant. That principle aids this Court in

its resolution of Avondale’s motion.

Having reviewed this persuasive caselaw, the Court reiterates that the

LHWCA provides that the “liability of an employer prescribed in . . . this title

shall be exclusive and in place of all other liability of such employer to the

employee.” 33 U.S.C. § 905(a) (emphasis added). Here, it is plain that

plaintiff’s allegations of take-home exposure through his brother, Daniel,

“stand entirely apart from plaintiff[’s] employment” with Avondale, and that

the take-home exposure “would have occurred exactly as it did even if

plaintiff[] had never worked for [Avondale].” Id. at 99. This Court finds that

extending the preemptive effect of the LHWCA to bar plaintiff’s take-home

claim would run afoul of the statutory text and caselaw, which pertain

exclusively to claims by employees against employers, for employment-

related injuries. Accordingly, the Court finds that permitting plaintiff’s take-

home claim does not conflict with LHWCA’s text (which addresses the

liability of employers), nor would it undermine the Act’s quid pro quo, which

directs benefits to employers and their employees, not to an employee’s

teenage brother living at home.

Moreover, the Fifth Circuit has expressly recognized that “[t]he

difference between the capacities in which an employer may act is extremely

important.” Levene v. Pintail Enters., Inc., 943 F.2d 528, 531 (5th Cir. 1991).

For instance, courts recognize a “dual capacity” exception to the LHWCA,

permitting an injured employee to bring a negligence claim against his

employer in the employer’s capacity as a vessel owner. See id. As the Fifth

Circuit has explained, while “[t]he LHWCA absolutely bars suit for all other

acts taken in the capacity as the employer of the injured worker,” id.

(emphasis added), it does not bar suits against the employer in its capacity

as a vessel owner. This exception, while narrow, illustrates that a defendant

may act as an employer at one time, and as a non-employer, with different

consequences, at other times.

Avondale’s arguments to the contrary are without merit. First,

Avondale attempts to group plaintiff’s alleged exposure from Daniel’s work

at Avondale with plaintiff’s allegations regarding his continued exposure off

Avondale’s premises during his own employment, such as on his bus ride to

and from work.38 Avondale argues that, because any such exposure “to his

brothers’ and co-workers’ clothing” originated on Avondale’s premises, those

claims “arose out of and in the course of” plaintiff’s employment, and are

covered by the LHWCA.39 This argument is meritless. Quite plainly,

plaintiff’s exposure to his own clothes, and his own coworkers’ clothes, on

his own ride to and from work, during his own employment with Avondale,

is covered by the LHWCA. The same is not true for the exposure he suffered

when his brother came home from work at Avondale, when plaintiff was a

teenager and had not worked a single day for Avondale. The Court rejects

this argument.

Second, Avondale argues that the LHWCA’s “non-apportionment rule”

requires preemption of the claims arising out of plaintiff’s exposure from

Daniel.40 This rule, as articulated by the Benefits Review Board (“BRB”),

prohibits apportionment of LHWCA benefits across jurisdictions when a

claimant’s employment-related injuries occurred both within and outside

the LHWCA’s coverage. As the BRB explained, “[t]he amount of time spent

over navigable waters during exposure to harmful stimuli causing or

aggravating an occupational disease is unimportant and will not lend itself

38 See R. Doc. 386-1 at 11-14.

39 Id. at 13-14.

40 Id. at 14-17.

to apportionment between jurisdictions as long as the exposure over

navigable waters was sufficient to have at least aggravated the condition.”

Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1010 (5th Cir. 1981)

(quoting McCabe v. Sun Shipbuilding & Dry Dock Co., BRB No. 74-193, 1

BRBS 509, 515, (June 4, 1975), rev’d on other grounds, 593 F.2d 234 (3d Cir.

1979)). In other words, “even if the injurious stimuli were encountered

during employment both on navigable waters and in an area not covered by

the Act, the entire disability [is] nevertheless compensable” under the

LHWCA. Id. at 1012; see also Arbogast v. Georgia-Pac. LLC, No. 14-4049,

2017 WL 1468883, at *2 (D. Md. Apr. 25, 2017) (declining to apportion an

employer’s LHWCA liability between covered injuries and nonmaritime,

non-covered injuries).

But this rule has no application to the Court’s preemption analysis of

plaintiff’s non-employee claims against Avondale. The rule as articulated by

the BRB, and cited with approval by the Fifth Circuit in Fulks, contemplates

scenarios in which employees, during the course of their employment, cross

the boundary between coverage and non-coverage under the LHWCA. The

rule precludes any attempts to sort an employer’s liability into those two

buckets. It does not facially speak to claims arising out non-employment

relationships, and Avondale cites no case in which the rule was applied to

preempt claims arising out of non-employment injuries. The Court finds that

the “non-apportionment” rule has no application to its preemption analysis

of plaintiff’s claims pertaining to take-home asbestos from his brother,

Daniel.

Third and finally, Avondale contends that plaintiff has a “single,

compensable disease, mesothelioma,” which allegedly arose at least in part

from his employment at Avondale.41 Because individual exposures are not

individual injuries—the argument goes—all claims arising out of individual

exposures, but contributing to the ultimate, indivisible injury, are

preempted.42 The cases that Avondale cites for this “single injury”

proposition discuss the claimants’ LHWCA compensation awards, and note

the general rule that, if a workplace condition has aggravated or contributed

to the worker’s injury, then the entire resulting injury is compensable under

the LHWCA. See, e.g., Ceres Marine Terminal v. Hinton, 243 F.3d 222, 226

(5th Cir. 2001) (“Under the Act’s aggravation rule, if an employment injury

aggravates, accelerates, exacerbates, contributes to, or combines with, a

previous infirmity, disease or underlying condition, the employer is liable for

compensation for, not just the disability resulting from the employment

41 R. Doc. 622 at 15.

42 Id. at 15, 18.

injury, but the employee’s total resulting disability.”); Strachan Shipping Co.

v. Nash, 782 F.2d 513, 517-18 (5th Cir. 1986) (same). This principle

recognizes that “[a]ggravation of a preexisting condition can be an ‘injury’

under the Act,” Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046, 1049 (5th

Cir. 1983), and that, therefore, a preexisting condition, accelerated or

otherwise worsened by a workplace condition, does not deprive a LHWCA

claimant of full recovery for the resulting injury within the Act’s

compensation system.

But Avondale provides no authority that, once the LHWCA covers an

injury, the Act preempts recovery from all other sources contributing to the

injury. Most obviously, the potential scope of an LHWCA award does not

affect plaintiff’s ability to sue manufacturers of asbestos-containing

products, or, as discussed above, his father’s employers who are allegedly

responsible for take-home exposure. Because Avondale has acted in at least

two capacities as to this plaintiff—as an employer, and as a non-employer

third party—and because the LHWCA is concerned with only the former,

plaintiff’s non-employment claims against Avondale are not preempted by

the LHWCA.

For all of these reasons, the Court finds that Avondale is not entitled to

summary judgment on plaintiff’s claims brought against Avondale in its

capacity as Daniel Cortez’s employer, arising out of exposure before plaintiff

began his employment with Avondale.

C. Intentional Tort Claim

The Court further finds that plaintiff’s intentional-tort claims against

Avondale must be dismissed. The parties dispute whether the LHWCA

recognizes an intentional-tort exception, but the Court need not reach this

issue, because even if such an exception existed, plaintiff has failed to point

to evidence sufficient to meet his burden under Louisiana law.

To prove an intentional tort, plaintiff must show that Avondale either

consciously desired that plaintiff contract mesothelioma, or knew that the

result was “substantially certain to follow from [its] conduct.” Zimko v. Am.

Cyanamid, 905 So. 2d 465, 475 (La. App. 4 Cir. 2005), cert. denied, 925 So.

2d 538 (2006) (internal citations omitted). Substantial certainty “requires

more than a reasonable probability that an injury will occur,” and plaintiff

must prove that his contracting mesothelioma was “inevitable or incapable

of failing.” Reeves v. Structural Pres. Sys., 731 So. 2d 208, 213 (La. 1999)

(internal citations omitted). It is not sufficient for plaintiff to show that

Avondale had knowledge that its practices were dangerous and created a

high probability that someone would eventually be injured. Id. Indeed, a

defendant’s “belie[f] that someone may, or even probably will, eventually get

hurt if a workplace practice is continued does not rise to the level of

intentional tort, but instead falls within the range of negligent acts.” Id. at

214.

Another section of this Court recently considered an intentional-tort

claim against Avondale arising out of asbestos exposure. There, plaintiffs

argued that Avondale was “aware of the risks associated with asbestos and

with the unsafe working conditions at Avondale,” and that it “failed to

remedy those conditions despite [its] knowledge of the risks.” Vedros v.

Northrop Grumman Shipbuilding, Inc., No. 11-1198, 2014 WL 906164, at *3

(E.D. La. Mar. 7, 2014). Judge Carl Barbier dismissed the claim on summary

judgment. He found that, “[e]ven considering the facts in the light most

favorable to Plaintiffs and assuming that Defendants were aware that there

was a major risk, or even a probability, that [decedent] would contract

mesothelioma,” plaintiffs had not submitted evidence permitting a

reasonable jury to “conclude that [decedent’s] contracting mesothelioma was

‘inevitable or incapable of failing’ and was thus substantially certain to result

from Defendants’ conduct.” Id.

Here, plaintiff contends that there are disputed issues of fact regarding

Avondale’s “motive and intent” as to plaintiff’s asbestos exposure.43 But his

evidence falls far short of what is necessary to raise a material issue for an

intentional-tort claim. Plaintiff generally asserts that Avondale “knew that

asbestos was a health hazard,” that it “caused fatal lung disease,” and that it

“had problems with it.”44 Plaintiff also points to Avondale’s attempts to clean

up the yard before inspectors arrived, and its instructions to its employees

that they should not work with insulation while inspectors were in the yard.45

But a defendant’s “mere knowledge and appreciation of a risk does not

constitute intent, nor does reckless or wanton conduct by an employer

constitute intentional wrongdoing.” Reeves, 731 So. 2d at 213 (citations

omitted). Plaintiff has not submitted any evidence suggesting that Avondale

intended to harm him, or that his mesothelioma was “inevitable or incapable

of failing.” Id. In fact, as other courts have recognized, “it is [not] common

human experience . . . that mesothelioma is known certainly or inevitably to

follow from asbestos exposure.” Vedros, 2014 WL 906164, at *3 (quoting

Zimko, 905 So. 2d at 479). Accordingly, plaintiff’s claim against Avondale

“lies in the realm of negligence, not in the realm of intentional tort.” Id.

43 R. Doc. 580 at 43-46.

44 Id. at 44-45.

45 Id. at 45.

For these reasons, Avondale is entitled to summary judgment

dismissing plaintiffs intentional-tort claims.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES

IN PART Avondale’s motion for summary judgment.4°

The Court grants the motion as to plaintiffs tort claims against

Avondale in its capacity as plaintiffs employer, as well as his intentional-tort

claims against Avondale. The Court denies the motion as to plaintiffs claims

against Avondale in its capacity as his brother Daniel’s employer.

The Court thus DISMISSES all of plaintiffs claims against Avondale,

except his take-home-exposure claims brought against Avondale in its

capacity as Daniel Cortez’s employer.

New Orleans, Louisiana, this 4th _ day of April, 2022.

hernk Voree

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

46 R. Doc. 386.

35