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 Continental Insurance Company’s

(“Continental”) motion for summary judgment, seeking dismissal of

plaintiff’s claims against it on the grounds of preemption under the

Longshore and Harbor Workers’ Compensation Act (“LHWCA”).1

Continental is sued in its capacity as the insurer of Halter Marine Services,

Inc. (“Halter Marine”). Plaintiff Callen Cortez opposes the motion.2

Also before the Court are two other summary-judgment motions filed

by Continental, based on (i) certain policy exclusions,3 and (ii) the liability of

Halter Marine’s executive officers.4 Plaintiff opposes both of these motions.5

1 R. Doc. 405.

2 R. Doc. 582.

3 R. Doc. 538.

4 R. Doc. 554.

5 R. Docs. 649 & 651.

Because plaintiff’s claims arising out of his employment with Halter

Marine are preempted by the LHWCA, the Court grants Continental’s motion

for summary judgment on preemption,6 and dismisses all of plaintiff’s claims

against Continental. Having dismissed all of plaintiff’s claims against

Continental, the Court in turn dismisses Continental’s other motions for

summary judgment7 as moot.

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 Halter Marine, where he

worked from 1974 through 1975.8 Plaintiff was diagnosed with

mesothelioma on June 2, 2020.9 On July 1, 2020, plaintiff filed suit in the

Civil District Court for the Parish of Orleans against approximately thirty-

five defendants, including former employers, manufacturers, premises

owners, and insurance companies.10 Among the defendants is Continental,

6 R. Doc. 405.

7 R. Docs. 538 & 554.

8 R. Doc. 1-1 at 5-6 (Complaint ¶¶ 7-8); see also R. Doc. 582-3 at 3 (Social

Security Statement of Callen J. Cortez).

9 Id. at 10 (Complaint ¶ 17).

10 Id. at 1-3 (Complaint ¶¶ 1-2); id. at 45-48.

sued in its capacity as the alleged insurer of Halter Marine and its executive

officers.11 On August 31, 2020, the case was removed to federal court.12

On February 22, 2022, Continental moved for summary judgment.13

Continental contends that plaintiff’s claims against it, which arise out of

plaintiff’s employment with Halter Marine, should be dismissed because

they are preempted by the exclusivity provisions of the LHWCA.14 Plaintiff

opposes the motion, contending that (i) Continental has failed to show that

Halter Marine secured insurance coverage for LHWCA claims;15 (ii)

plaintiff’s injuries fall within the “twilight zone” of concurrent federal and

state jurisdiction over workers’ compensation claims;16 (iii) his claims based

on at-home exposure from his work at Halter Marine are not covered, and

thus not preempted, by the LHWCA;17 and (iv) material facts remain in

dispute as to plaintiff’s intentional-tort claims, for which the LHWCA has an

exception.18

The Court considers the parties’ arguments below.

11 R. Doc. 1-1 at 5 (Complaint ¶ 7).

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

13 R. Doc. 405.

14 R. Doc. 405-1 at 3-9.

15 R. Doc. 582 at 2-4.

16 Id. at 4-21.

17 Id. at 21-23.

18 Id. at 23-28.

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

A. Preemption of State-Law Claims

Continental argues that the LHWCA preempts plaintiff’s claims

against it. This Court and other sections of the Court have held in similar

cases that the LHWCA preempts a plaintiff's occupational-exposure claims

against his employer and his employer’s insurers. See Morales v. Anco

Insulations Inc., No. 20-996, 2022 WL 1405133 (E.D. La. May 4, 2022);

Sentilles v. Huntington Ingalls Inc., No. 21-958, 2022 WL 1211429 (E.D. La.

Apr. 25, 2022); 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). Accordingly, in addressing this question, the Court

largely reiterates its prior analyses on this issue.

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., Off. 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

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 of the

disease, not the timing of 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 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.19

Plaintiff disputes this legal conclusion, instead asserting that Cortez’s

injury arose on the date of his exposure to asbestos. In support of this

argument, plaintiff points to dicta in a footnote in Savoie v. Huntington

Ingalls, Inc., 817 F.3d 457, 466 n.6 (5th Cir. 2016),20 in which the Fifth

Circuit stated:

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

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

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

20 R. Doc. 582 at 5-7.

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 finds that this footnote does not have the import that

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 cited

footnote, the Fifth Circuit notes 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 the

applicable version of the LHWCA. See also 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)). The Court

does not find that the Fifth Circuit in Savoie intended to overrule its earlier,

reasoned decision in Castorina by way of dicta in a footnote. And even if it

did, 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).

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

LHWCA as it existed in 2020, when Cortez’s mesothelioma manifested.21

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., Off. of Worker’s Comp. Programs, 718 F.3d 384, 389

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

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

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

longshoreman or other person engaged in longshoring operations, and any

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

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).

Cortez worked as a welder on new vessels being constructed at Halter

Marine’s Lockport Yard.22 This 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 task he was performing “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 covers “any harborworker,” which includes “shipcleaners, tank

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

22 R. Doc. 405-4 at 3, 6-8 (Discovery Deposition of Callen Cortez at 154:2-

17, 581:4-12, 591:4-25, 593:2-23).

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

Accordingly, 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” or “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.”). Here, Cortez’s

injuries occurred at Halter Marine’s Lockport Yard, situated adjacent to

Bayou Lafourche, south of Thibodaux, Louisiana.23 The segment of Bayou

Lafourche extending south of Thibodaux is a navigable waterway. See 33

U.S.C. § 59e (declaring that Bayou Lafourche between Thibodaux at the

southern end and Donaldsonville at the northern end is nonnavigable).

Plaintiff does not dispute that Halter Marine’s facility is adjacent to a

navigable waterway. Cortez thus satisfies the situs test.

Accordingly, 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.

23 Id. at 7 (Discovery Deposition of Callen Cortez at 591:4-11).

3. LHWCA Preemption of Tort Claims Against Employers

Continental 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).

The Act also provides the exclusive remedy for injuries caused by the

negligence or wrongful act of an officer or employee of the employer. 33

U.S.C. § 933(i). Further, the Fifth Circuit has “held that the LHWCA

impliedly grants the employer’s insurance carrier, and the insurance carrier

of co-employees, the same immunity which it grants the employer and co-

employees.” Atkinson v. Gates, McDonald & Co., 838 F.2d 808, 811 (5th Cir.

1988) (citing Johnson v. Am. Mut. Liab. Ins. Co., 559 F.2d 382 (5th Cir.

1977)). While the LHWCA does not specifically immunize insurers, see 33

U.S.C. §§ 905(a), 933(i), the Fifth Circuit has explained that “numerous

provisions of the Act and the spirit of the Act as a whole, [which] equat[e] the

insurer with the employer, negate any intent to hold the insurer liable to suit

for damages as a third person.” Johnson, 559 F.2d at 388 & n.10 (citing 33

U.S.C. §§ 905(a), 917(a), 928, 932(a), 933, 935, 936 and 941). Plaintiff’s

claims against Halter Marine and its executive officers, as well as his claims

against Continental in its capacity as Halter Marine’s insurer, are covered by

these provisions. Accordingly, the Court must determine whether the

LHWCA preempts plaintiff’s state-law tort claims against Continental.

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 already held, in this case and in four other

cases, that the LHWCA preempts state tort claims against an employer. See

Cortez, 2022 WL 1001445, at *14-18; see also Morales, 2022 WL 1405133, at

*7; 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 Continental as

his employer’s insurer would obstruct the purposes of the LHWCA, the Court

finds that these claims are preempted and must be dismissed.

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

argues that Continental’s insurance policy with Halter Marine does not

provide coverage for LHWCA claims. Specifically, plaintiff contends that

Continental’s Workmen’s Compensation and Employer Liability (“WC/EL”)

policy is illegible.24 He further asserts that the LHWCA endorsement

24 R. Doc. 582 at 3.

attached to the WC/EL policy contemplates a premium to be paid for

LHWCA coverage, but that Continental’s corporate representative testified

that there was no indication that Halter Marine ever paid such a premium.25

But the WC/EL policy belies this argument. The page that plaintiff

disregards as illegible is legible when viewed digitally. This page includes a

section titled “Insuring Agreements,” which provides that, “in consideration

of the payment of the premium,” the insurance company agrees “[t]o pay

promptly when due all compensation and other benefits required of the

insured by the workmen’s compensation law.”26 On the same page, the

“Definitions” section, as amended by Endorsement number 9, provides that

“[t]he unqualified term ‘workmen’s compensation law’ means the workmen’s

compensation law and any occupational disease law of a state designated in

. . . the declarations,”27 and “includes the United States Longshoremen’s and

Harbor Workers’ Compensation Act.”28 By its plain terms, then,

Continental’s WC/EL expressly covers payment of LHWCA claims.

The endorsement that plaintiff cites does not undermine this plain

language in the policy. The endorsement states:

25 Id. at 3-4.

26 R. Doc. 405-3 at 23.

27 Id.

28 Id. at 45 (emphasis added).

It is agreed that if any employee of the insured is engaged on

behalf of the insured during the policy period in operations

falling within the scope of the [LHWCA], the insured will keep a

separate record of the renumeration paid in connection with

such operations and the insured shall pay [a] premium thereon

computed at the applicable rate increased by the percentage

listed below.29

The endorsement then lists a “percentage of increase” based on the state

where the operations occurred, i.e., Louisiana, Mississippi, or Texas.30

Continental’s corporate representative explained that this means that Halter

Marine paid a premium upon inception of the policy, but that the premium

could have been adjusted at a later date “based on actual remuneration” of

its employees.31 Accordingly, while the premium may have later been

adjusted based on actual remuneration of Halter Marine employees engaged

in LHWCA-covered operations, the existence of such an adjustment does not

alter or undermine the policy’s plain language providing coverage for

LHWCA claims. The Court finds no merit in plaintiff’s argument that Halter

Marine did not secure LHWCA insurance coverage with Continental.

Second, plaintiff argues that, even if the LHWCA preempts his claims

arising out of injuries incurred while at Halter Marine, it does not preempt

29 Id. at 47.

30 Id.

31 R. Doc. 582-16 at 2-3 (Corporate Deposition of Continental Insurance

Company, through Thomas Robert Barriball, at 24:4-25:3).

his claims arising from continued asbestos exposure from his work clothes

while at home, off Halter Marine’s premises.32 This argument also lacks

merit. The LHWCA covers all “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).

Plaintiff’s at-home asbestos exposure from his work clothes clearly

“arises . . . out of [his] employment” with Halter Marine. Id. And as already

discussed, “[u]nder the LHWCA, workers[’] compensation is the exclusive

remedy for an injured employee against his employer.” Rosetti, 821 F.2d at

1085. That the asbestos plaintiff got on his clothes at work may have

continued to injure him when he carried that asbestos home on his clothes

after work does not take his claim outside the reach of LHWCA preemption.

Consistent with this notion, other courts have rejected attempts to maintain

tort claims based on take-home exposure after the claimant left work. See,

e.g., Dempster, 2020 WL 5071115, at *7 (rejecting plaintiffs’ argument that

the LHWCA did not preempt their claims for continued asbestos exposure

after leaving work, because, “[u]nder Plaintiffs’ theory of the case, the

exposure began at work and then Decedent carried some of the asbestos

32 R. Doc. 582 at 21-23.

material home,” and that, “[t]herefore, the alleged injury arose out of and in

the course of Decedent’s employment”); Barrosse, 2021 WL 4355415, at *8

(“[Decedent] would not have had asbestos dust to inhale, whether in his car

or at home, had it not arisen out of his employment at Avondale Shipyard.

Accordingly, the Court finds that [decedent]’s off-site exposures to asbestos

arose out of and in the course of his employment at Avondale Shipyard, and

[are] therefore covered by the LHWCA.”); Sentilles, 2022 WL 1211429, at *9

(finding that plaintiff’s “take-home or off-site exposures to asbestos arose out

of and in the course of his employment at Avondale and are therefore covered

by the LHWCA,” because plaintiff “could have been exposed to asbestos

through his interactions with coworkers, including his own brother,” and

that, therefore, “any exposure to [his brother]’s clothing was incidental to

[plaintiff]’s own employment at Avondale”).

Third, plaintiff contends that, because his injuries occurred in the

“twilight zone” of concurrent state-federal jurisdiction, he may maintain his

state tort claims.33 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.

33 Id. at 8-21.

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 plaintiff contends, 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’s insurer. For the reasons

already given, the LHWCA preempts these claims against Continental.

Fourth and finally, plaintiff argues that preemption does not apply

because he is not seeking benefits under the LHWCA.34 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

34 Id. at 18-19.

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.

For all of these reasons, the Court finds that the LHWCA preempts

plaintiff’s state-law claims against Continental. The Court grants

Continental’s motion for summary judgment as to these claims.

B. Intentional-Tort Claims

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

Continental 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 Continental’s

insured, Halter Marine, 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 Halter Marine 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 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

Halter Marine’s “motive and intent” as to plaintiff’s asbestos exposure.35 But

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

an intentional-tort claim. Plaintiff generally asserts that “Halter Marine and

its executive officers knew that asbestos was hazardous,” based on

government regulations addressing the dangers of asbestos, promulgated

before plaintiff began working at Halter Marine.36 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 Halter Marine 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 Continental as

35 Id. at 27-28.

36 Id. at 28.

Halter Marine’s insurer “lies in the realm of negligence, not in the realm of

intentional tort.” Id.

For these reasons, Continental is entitled to summary judgment

dismissing plaintiffs intentional-tort claims.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Continental’s motion for

summary judgment,37 and DISMISSES all of plaintiffs claims against

Continental.

Having so ordered, the Court DISMISSES as MOOT Continental’s

motions regarding policy exclusions38 and executive-officer liability.39

New Orleans, Louisiana, this _19th__ day of May, 2022.

Lorn Varver

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

37 R. Doc. 405.

38 R. Doc. 538.

39 R. Doc. 554.

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