The plaintiff, Kelan Unterberg, brought this action against multiple defendants for his alleged development of mesothelioma. His complaint lodged three separate causes of action including negligence under the Jones Act, breach of warranty of sea worthiness and reasonable fitness under U.S. Maritime law, and remedy of maintenance and cure. All of the counts were related to Unterberg’s alleged exposure to asbestos aboard several civilian vessels while working as a chief engineer and merchant seaman from 1973-78.
The plaintiff, a citizen of Germany, first brought this action in Hawaii, and added Mobil Shipping Transportation Company (MOSAT), a Liberian Corporation owned by Exxon Mobil, at the end of discovery. Exxon Mobil moved to dismiss for lack of personal jurisdiction, arguing that it was never the plaintiff’s employer and therefore his Jones Act claims could not be sustained. The plaintiff did not oppose Exxon Mobil’s Motion to Dismiss. However, the plaintiff brought the action in New York that same day. The case was then removed to the U.S. District Court.
Defendant Exxon Mobil moved for summary judgment. The court’s analysis began with the standard for summary judgment. Summary judgment shall be granted when there is no “genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” To survive summary judgment the non-moving party must show “hard evidence from which a reasonable inference in its favor may be drawn.”
Exxon Mobil argued that the plaintiff’s first and second counts should be dismissed because it was not Unterberg’s employer under the definition of the Jones Act. The plaintiff countered with a charge that MOSAT was essentially the same business entity and the court should therefore pierce the corporate veil. The court recognized that the Second Circuit had found in the past that a subsidiary which is a “mere instrumentality” of the parent can be properly sued under the Jones Act. The Williams case set the stage for the elements necessary to pierce according to the court. Those elements included a review of the following: 1) disregard of corporate formalities; 2) inadequate capitalization; 3) intermingling of funds; 4) overlap in ownership, officers, directors, and personnel; 5) common office space, address and telephone numbers of corporate entities; 6) the degree of discretion shown by the allegedly dominated corporation; 7) whether the dealings between the entities are at arm’s length; 8) whether the corporations are treated as independent profit centers; 9) payment of guarantee of the corporation’s debts by the dominating entity; and 10) intermingling of property between the entities. Moreover, not one “factor is dispositive.” The plaintiff relied on Amoco International Oil Company, and argued that the facts were substantially similar in this matter. The plaintiff contended that the manager of the parent company also acted as one of the vice presidents and one of the directors of MOSAT from 1972-79. Additionally, the plaintiff argued that the defendant utilized the same shared office space. The court noted that the plaintiff established, at most, two of the factors. However, the remaining facts or evidence in this matter did not lend toward establishing any additional factors. Specifically, the court noted that the plaintiff had not established that the defendant was the owner of one of the vessels at issue.
Accordingly, the court granted Exxon Mobil’s motion for summary judgment as to the claim for breach of seaworthiness.