Starr v. Cleveland-Cliffs Iron Company

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ALICE STARR, AS EXECUTOR OF THE )

ESTATE OF THOMAS JACKSON ) Case No. 1:19-cv-00106

BOWLING, )

) Judge Dan Aaron Polster

Plaintiff, )

) OPINION & ORDER

v. )

)

THE CLEVELAND-CLIFFS IRON )

COMPANY, ET AL., )

)

)

Defendants. )

Before the Court is a defendant’s motion for summary judgment on Count I of the

complaint. ECF Doc. 25. This admiralty case arises from the asbestos-related death of a former

merchant mariner. ECF Doc. 1, p. 3. The plaintiff is the deceased mariner’s younger sister, and

she asserts that she is a next of kin beneficiary under the Jones Act. ECF Docs. 25, p. 5; 26, p. 5.

The defendant disputes the plaintiff’s dependency status. ECF Doc. 25. For the following

reasons, the defendant’s motion for summary judgment is GRANTED.

Background

The plaintiff, Alice Starr, is the executor of her deceased brother’s estate. She brought a

survival action in Count I under 46 U.S.C. § 30104, the Jones Act, against the defendant, The

Cleveland-Cliffs Iron Company (“Cleveland Cliffs”). ECF Doc. 1, pp. 8-10. The plaintiff

alleges that her brother, Thomas Jackson Bowling, died from asbestos-related cancer and

suffered asbestos exposure while employed for the defendant. ECF Doc. 1, pp. 2-3, 8-10.

Cleveland Cliffs admits that during 1973 to 1974, it employed Mr. Bowling on two separate

occasions for approximately 65 days in total. ECF Doc. 4, p. 2. Mr. Bowling died of lung

cancer on January 17, 2017, at the age of 70. ECF Docs. 1, p. 2; 25-1, p. 12. Mrs. Starr was 60

years old when Mr. Bowling died. ECF Doc 25-1, p. 12.

Procedural History

On January 15, 2019, the plaintiff filed this complaint. ECF Doc. 1. On June 24, 2019,

the defendant deposed Mrs. Starr. ECF Doc. 25-1. Approximately three months later, with the

consent of both parties, the Court transferred this case to Magistrate Judge William H.

Baughman. Non-doc. order, Sept. 25, 2019. In September 2021, Judge Baughman ordered the

parties to file a motion addressing the threshold issue of whether Mrs. Starr was “dependent” on

Mr. Bowling. ECF Doc. 24, p. 2. On October 18, 2021, Cleveland Cliffs filed a motion for an

order as to dependency and summary judgment on Count I. ECF Doc. 25. The plaintiff

responded on November 17, 2021. ECF Doc. 26. On November 30, 2021, the defendant filed a

reply in support of its motion. ECF Doc. 27. On April 22, 2022, Magistrate Judge Baughman

heard oral arguments via video conference. Non-doc. minutes of proceedings, Apr. 22, 2022.

The Court obtained a written transcript of the proceeding. ECF Doc. 30. In early September

2022, this case returned to the Court due to Judge Baughman’s retirement. Non-doc. order, Sept.

8, 2022.

There is no factual dispute between the parties as to the nature and extent of Mr.

Bowling’s relationship with his sister. ECF Doc. 30, p. 3. The defendant agrees with Mrs.

Starr’s assertions about the frequency, duration, and kind of support Mr. Bowling provided her.

Id. at 3-7. Therefore, the issue before this Court is whether Mrs. Starr qualified as her brother’s

“next of kin dependent” at the time of his death, which is a predicate to recovery under the Jones

Act.

The defendant asserts that dependency under the Jones Act requires financial dependency

at the time of the decedent’s death. ECF Docs. 25, p. 3; 27, p. 2. It argues that in-kind services

alone do not constitute financial dependency. ECF Doc. 27, p. 4. The defendant frames the

issue before the Court as “whether in-kind services alone, provided to a financially secure adult

sibling, can support a finding of legal dependence.” ECF Doc. 27, p. 4. Cleveland Cliffs argues

that because Mrs. Starr was not financially dependent on Mr. Bowling when he died, she is not

his dependent within the meaning of the Jones Act. ECF Doc. 25, p. 1.

The plaintiff disputes the defendant’s assertion that dependency requires financial

contributions or support. ECF Doc. 26, p. 5. Instead, she contends that “valuable services” are

also relevant to a dependency determination. ECF Doc. 26, pp. 7-8. The plaintiff proposes a

five-part dependency definition based on state and federal case law:

(1) A voluntary status created before the death of the deceased;

(2) where financial contributions or the furnishing of other valuable elements of

support, such as sufficiently valuable services, are made by the deceased;

(3) for the purpose of, and has the result of, helping to maintain the dependent in

his or her customary standard of living; and

(4) said dependent relies, in whole or in part, upon this aid; and

(5) said dependent has a necessitous want for, and a reasonable expectation of

pecuniary benefit in, the continuance of the life of the deceased.

ECF Doc. 26, p. 12.

Standard of Review

A district court may grant summary judgment when “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(a). To obtain summary judgment, the moving party bears the

burden to meet this standard. Rafferty v. Trumbull Cnty., 915 F.3d 1087, 1093 (6th Cir. 2019).

Summary judgment is inappropriate if there are genuine disputes of material fact—i.e., the

parties dispute any fact that has the potential to affect the outcome of the case under the

governing substantive law. Baynes v. Cleland, 799 F.3d 600, 606-07 (6th Cir. 2015).

When determining whether a genuine dispute of material fact exists, a district court must

construe the evidence and draw all reasonable inferences in favor of the non-moving party.

Wright v. City of Euclid, Ohio, 962 F.3d 852, 864 (6th Cir. 2020) (quoting Burgess v. Fischer,

735 F.3d 462, 471 (6th Cir. 2018)). The reviewing court may neither weigh the parties’ evidence

nor resolve any factual disputes. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

The court’s review is limited to determining whether there is evidence that could lead a

reasonable jury to return a verdict in favor of the non-moving party. Doe v. Metropolitan Gov’t

of Nashville & Davidson Cnty. Tenn., 35 F.4th 459, 463 (6th Cir. 2022) (citing Anderson, 477

U.S. at 248).

Analysis

The Jones Act permits an injured or deceased seaman’s personal representative to bring a

civil action against the seaman’s employer. 46 U.S.C. § 30104. The Jones Act incorporates by

reference the Federal Employers’ Liability Act (“FELA”). Id.; see also Lindgren v. U.S., 281

U.S. 38, 40 (1930). Under the FELA, a personal representative may bring a claim for the benefit

of “the surviving widow or husband and children of such employee, and, if none, then of such

employee’s parents; and, if none, then of the next of kin dependent upon such employee.” 45

U.S.C. § 59. Mr. Bowling never married, never had any children, and his parents predeceased

him. ECF Doc. 26, p. 2. Accordingly, the relevant language in the FELA is “the next of kin

dependent upon such employee.” 45 U.S.C. § 59. Neither party contests that Mrs. Starr is Mr.

Bowling’s next of kin; however, she must also be “dependent” upon him to recover under the

Jones Act. ECF Docs. 25, pp. 4-5; 26, pp. 2, 5.

Turning to the issue of dependency, the FELA does not define “dependent.” The Sixth

Circuit has not defined the term or provided controlling case law on Jones Act dependency.

Therefore, the Court must first apply the basic rules of statutory construction.

The Court reads the statutory text “in light of [its] plain meaning.” Wright v. Fin. Serv. of

Norwalk, Inc., 22 F.3d 647, 649 (6th Cir. 1994) (citing Baum v. Madigan, 979 F.2d 438, 441 (6th

Cir. 1992)). The Court applies the ordinary and common-held meaning of the word

“dependent.” Id. A dependent “is one who is sustained by another, or relies for support upon the

aid of another.” Pittsburgh Nat’l Bank v. Penn. R.R. Co., 315 F.2d 606, 608 (3d Cir. 1963)

(citing Atchison, T. & S. F. Ry. Co. v. Hopkins, 24 Ariz. 103, 207 P. 66, 69 (1922)).

Second, the Court considers how other Circuits and district courts have defined and

analyzed the issue of dependency. Courts have examined the concept of Jones Act dependency

under the FELA and analogous federal maritime statutes that provide recovery for specified

dependent relatives, such as 46 U.S.C. § 30301, the Death on High Seas Act (“DOHSA”), and 33

U.S.C. § 901, the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). See In re

U.S., 418 F.2d 264, 271 (1st Cir. 1969) (“The [LHWCA and DOHSA] statutes are both intended

to compensate persons for the pecuniary loss resulting from the death of one covered by the Act.

Therefore the construction given a term under one is instructive as to how it should be read under

the other.”); In re Complaint of Conn. Nat’l Bank, 1989 U.S. Dist. LEXIS 15031, at *6

(S.D.N.Y. Dec. 15, 1989) (“Although the Second Circuit has not set forth the test for dependency

to be used in DOHSA actions, it described dependency under the Longshoremen’s and Harbor

Workers’ Compensation Act.”).

The common thread in the following cases is that the decedent made financial

contributions to the beneficiary at the time of the decedent’s death. For example, the Sixth

Circuit upheld Jones Act awards because the decedents provided “regular” “financial

contribution[s]” that “contribute[d] to the financial well-being” of the next of kin. Cleveland

Tankers, Inc. v. Tierney, 169 F.2d 622, 625 (6th Cir. 1948). Similarly, the Third Circuit denied

recovery under the FELA because the surviving brother was “gainfully employed and was not

dependent on [the decedent] for support, maintenance, care, or otherwise.” Pittsburgh Nat’l

Bank, 315 F.2d at 611. Additionally, dependency “arises from an actual condition of financial

need.” Id.

The Second Circuit upheld recovery under the LHWCA because without the decedent

son’s financial contributions, the surviving parents’ “own resources [were] not sufficient to

support them.” Wende v. McManigal, 135 F.2d 151, 152 (2d Cir. 1943).

The First Circuit found that a decedent’s stepchild was a dependent relative under the

DOHSA because the child relied on the decedent’s financial “means of support.” In re United

States, 418 F.2d 264, 270-71 (1st Cir. 1969). The court adopted a test that requires that

“contributions are made for the purpose and have the result of maintaining or helping to maintain

the dependent in his customary standard of living.” Id. at 272 (quoting U.S. Fid. & Guar. Co. v.

Britton, 88 U.S. App. D.C. 293, 188 F.2d 674, 675 (1951)). Finally, the dependency relationship

must exist at the time of the decedent’s death. Id.; see also Pa. Nat’l Bank, 315 F.2d at 611 (also

requiring dependency at the time of the decedent’s death).

The District Court for Rhode Island analyzed the matter of dependency under the FELA

and focused on the surviving parents’ full employment and the fact that “[n]either had received,

nor in the future expected to receive, any financial contributions from [the decedent].” Rollins v.

Peterson Builders, Inc., 761 F. Supp. 918, 920 (D.R.I. 1990).

The District Court for the Southern District New York upheld a Jones Act and FELA

award for surviving siblings, where the decedent contributed $1,100 annually to support them.

Strehle v. United States, 860 F. Supp. 136, 139 (S.D.N.Y. 1994). “Dependency refers to

contribution ‘in whole or in part’ in maintaining the manner in which the dependent was living.”

Id. (quoting Hollie v. Korean Air Lines Co., No. 83CIV.7899(PNL)(NRB), 1994 WL 38785, at

*1 (S.D.N.Y. Feb. 7, 1994), aff’d, 60 F.3d 90 (2d Cir. 1995), cert. granted, judgment vacated,

516 U.S. 1088, 116 S. Ct. 808 (1996)).

In another case, the District Court for the Southern District of New York denied recovery

for the decedent’s relatives under the DOHSA because the decedent’s birthday and holiday

presents, holiday meals, and volunteer farm work were “gifts.” In re Complaint of Conn. Nat’l

Bank, Nos. 86CIV.8358(RLC), 89 CIV.621(RLC), 1989 U.S. Dist. LEXIS 15031, at *4-5

(S.D.N.Y. Dec. 15, 1989). Additionally, the decedent did not provide his relatives “money or

necessity items on a regular and systematic basis.” Id. at *8.

The District Court for the Eastern District of Louisiana denied recovery under the

DOHSA to a surviving mother because the decedent’s financial contributions occurred at

“irregular intervals” and were not “sufficiently regular and substantial” to maintain her standard

of living. Billiot v. Fox Seafood, Inc., Civil Action No. 87-4801, 1988 U.S. Dist. LEXIS 5905, at

*9, *10 (E.D. La. June 23, 1988).

The District Court for the Western District of Michigan upheld a finding of dependency

under the LHWCA where the decedent supplemented his parents’ income with weekly payments

because they “were dependent to some extent for their support upon [the] deceased.” Michigan

Transit Corp. v. Brown, 56 F.2d 200, 203 (W.D. Mich. 1929).

The above cases demonstrate that federal courts take a substantially similar approach to

the issue of dependency under the Jones Act, FELA, DOHSA, and LHWCA. The courts

decisively center their analysis on the financial component of the decedent-beneficiary

relationship, at the time the decedent died. While the plaintiff suggests the Court apply a five-

part dependency test, she cites no cases that have adopted this approach. Similarly, the plaintiff

cites no cases where a court found a dependency relationship without finding that a decedent

financially contributed to the beneficiary at the time of the decedent’s death. The Court did not

find any such cases.

Mrs. Starr’s deposition testimony is the plaintiff’s primary evidence of her dependency

on Mr. Bowling. ECF Doc. 25-1. The plaintiff asserts that Mr. Bowling provided seven

categories of contributions to Mrs. Starr, including: “(1) child supervision/caregiving/

transportation; (2) household/appliance maintenance; (3) rental property maintenance/

management; (4) computer repair/maintenance; (5) caregiving to Mrs. Starr for health issues; (6)

utility payments and food; and (7) shared bank account.” ECF Doc. 26, p. 3.

There is no evidence that Mrs. Starr was financially dependent upon Mr. Bowling at the

time of his death. For several years prior to Mr. Bowling’s death, Mrs. Starr and her husband

had a combined income of approximately $150,000 per year, while Mr. Bowling made $13,000

per year. ECF Doc. 25-1, p. 110. Mr. Bowling did not give Mrs. Starr money to pay her bills or

sustain her lifestyle. He did not contribute to her mortgage, utility bills, or personal loans. Id. at

50. Occasionally, Mr. Bowling borrowed money from Ms. Starr and would eventually pay her

back. Id. at 88-89. Mrs. Starr admits that she did not financially depend on her brother for her

day-to-day expenses. Id. at 110-12.

Viewing the evidence in the light most favorable to Mrs. Starr, at the time of her

brother’s death, Mr. Bowling only provided Mrs. Starr emotional support and non-monetary

assistance. When Mr. Bowling died in January 2017, Mrs. Starr’s three children were 34, 27,

and 23 years old. ECF Docs, 25-1, p. 10; 27, p. 3. There is no evidence that, at time of his

death, Mr. Bowling supervised, transported, or cared for Mrs. Starr’s adult children. ECF Doc.

25-1, pp. 27, 33. Therefore, Mr. Bowling was not providing Mrs. Starr any childcare assistance

when he died. Id. Similarly, Mr. Bowling’s caregiving services to Mrs. Starr occurred well

before his death. When Mrs. Starr was pregnant, he took her to the hospital for a cesarean

delivery. ECF Doc 25-1 at 42. In 2011 and 2014, Mr. Bowling cared for Mrs. Starr when she

had knee replacement surgery and triple bypass heart surgery. Id. at 35-36.

The evidence that is closest to financial assistance is when Mr. Bowling moved in with

Mrs. Starr. In June 2016, Mr. Bowling’s trailer flooded, and he moved into Mrs. Starr’s home.

Id. at 37-38. Mr. Bowling contributed toward Mrs. Starr’s utility and food bills while he stayed

with her. Id. at 50. However, the money he paid was compensation for the utilities he used and

the food he ate. Additionally, Mr. Bowling and Mrs. Starr also shared a checking account

around the time of his death; however, there is no evidence that Mrs. Starr ever withdrew money

from the account. Id. at 46.

Lastly, there is evidence that Mr. Bowling repaired household appliances and fixed Mrs.

Starr’s computer. Id. at 43, 52, 77. In 2016, Mr. Bowling replaced a broken built-in oven in one

of Mrs. Starr’s mobile homes. Id. at 77-78. She did not give a timeframe for the computer

services, and it is unclear when Mr. Bowling performed them. Generally, replacing a broken

stove, updating a computer, buying a new motherboard, and upgrading computer memory are

isolated and infrequent occurrences that may take hours or even days to resolve—but not weeks

or months. Consequently, Mr. Bowling’s appliance and computer related services were not

sufficiently regular and substantial to be considered necessary to sustain his sister’s standard of

living.

The record reflects that up until Mr. Bowling passed, he helped manage and maintain

Mrs. Starr’s rental properties. Id. at 34. Mrs. Starr testified that Mr. Bowling spent about twenty

hours per week helping her. Id. at 43. However, Mr. Bowling’s assistance and support to Mrs.

Starr did not arise from her actual financial need. Mrs. Starr and her husband were independent,

self-sufficient, and able to support their lifestyle without Mr. Bowling’s in-kind assistance.

Rather, Mr. Bowling reciprocated Mrs. Starr’s own generosity to him, as any close sibling

would.

Mrs. Starr refers to Mr. Bowling as a “surrogate dad” for her kids and as a “surrogate

husband” who was “always there to help” and “[pick] up all the slack.” ECF Doc. 25-1 at 28.

But Mr. Bowling’s assistance to Mrs. Starr’s children occurred many years before his death,

when they were younger and lived with Mrs. Starr. Mr. Bowling made Mrs. Starr’s life “easier”

and “better.” Id. at 52. She trusted her brother and relied upon him emotionally, but she did not

depend on him financially. Mrs. Starr accepted Mr. Bowling’s help and support because they

were expressions of his affection. Accordingly, Mrs. Starr was not financially dependent on her

brother at the time of his death, and, therefore, she is not a next of kin dependent under the Jones

Act.

Conclusion

The defendant’s motion for summary judgement on Count I of the complaint is

GRANTED.

IT IS SO ORDERED.

Date: September 30, 2022

/s/ Dan Aaron Polster ___

Dan Aaron Polster

United States District Judge