Judge chamber with gavel

Defendant Shipyard Unsuccessful on Summary Judgment under 5th Circuit Precedent

U.S. District Court for the Eastern District of Louisiana

Plaintiff Felton Robichaux brought this asbestos-related lawsuit claiming he was exposed to asbestos through his work as a land-based insulator and carpenter at Avondale Shipyard from 1961 to 1979. In January 2022, Robichaux was diagnosed with mesothelioma and filed the instant action in Civil District Court for the Parish of Orleans. Robichaux brought state law tort claims against Avondale. Because Robichaux was primarily exposed to asbestos while working on United States Navy ships at Avondale Shipyard, Avondale removed to this court under the federal officer removal statute. 28 U.S.C. § 1442. Robichaux did not seek benefits under the Longshore and Harbor Workers’ Compensation Act (the LHWCA), which provides no-fault compensation to injured maritime workers. 33 U.S.C. § 904. On March 28, 2023, Avondale filed this motion for partial summary judgment, arguing the LHWCA preempts Robichaux’s state law tort claims.

Summary judgment is appropriate when the evidence before the court 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). A fact is “material” if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986). The party seeking summary judgment has the initial burden of showing the absence of a genuine issue of material fact by pointing out the record contains no support for the non-moving party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (quoting FED. R. CIV. P. 56(c)). Thereafter, if the nonmovant is unable to identify anything in the record to support its claim, summary judgment is appropriate. Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 263 (5th Cir. 2002).

The LHWCA is a federal workers’ compensation statute that provides 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). The original version of the LHWCA, passed in 1927, applied only to workers on “navigable waters of the United States,” and to cases where state workers’ compensation laws did not apply. Id. (citing 33 U.S.C. § 903(a)); Barrosse v. Huntington Ingalls, Inc., 70 F.4th, 315, 317 (5th Cir. 2023). This “limited application caused problems because it was unclear where ‘the boundary at which state remedies gave way to federal remedies’ was.” Barrosse, 70 F.4th at 317-18 (quoting Sun Ship, Inc. v. Pa, 447 U.S. 715, 717, 100 S. Ct. 2432 (1980)). In response to this confusion, the Supreme Court created “the so-called ‘twilight zone,’ an area of concurrent jurisdiction that applies on a case-by-case basis.” Id. In twilight zone cases, an injured maritime worker can “elect[] to recover compensation under either the [LHWCA] or the Workmen’s Compensation Law of the State in which the injury occurred.” Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 273, 790 S. Ct. 266 (1959). In 1972, Congress “extend[ed] the LHWCA landward beyond the shoreline of navigable waters of the United States” allowing, for the first time, land-based maritime workers such as Robichaux to recover under the LHWCA. Sun Ship, 447 U.S. at 719, 100 S. Ct. 2432.

Equally important here is the applicability of the Louisiana’s Workers’ Compensation Act. The applicable version of the WCA is the version that was in effect during the time of significant exposure which, for Robichaux, was 1961. See Barrosse, 70 F.4th at 319 (applying the WCA in effect in 1969 because plaintiff alleged his significant exposure first began in 1969). The WCA in effect at the time of Robichaux’s significant exposure was the 1952 version, which provided injured workers with a remedy that was “exclusive of all other rights and remedies” for diseases specifically enumerated in the statute. LA. R.S. § 23:1031.1 (1952). If a disease was not specifically listed in the WCA, an injured worker was limited to recovery under state tort law. Such is the case with Robichaux, who suffered from mesothelioma – a disease that was not covered by the WCA until 1975. Barrosse, 70 F.4th at 319 (citing Rando v. Anco Insulations, Inc., 16 So.3d 1065, 1072-73 (La. 2009)). Thus, Robichaux could not have recovered under the WCA, and his only state law remedy would have been through state tort law. Id.

The Barrosse court ultimately held the LHWCA does not preempt state law claims if the following circumstances apply: “1) maritime workers; 2) injured in the twilight zone; 3) in Louisiana; 4) who neither seek nor obtain LHWCA compensation; and 5) whose injuries are not covered by the relevant version of the WCA.” Barrosse, 70 F.4th at 322-23 (5th Cir. 2023). Accordingly, Avondale, on its motion, failed to meet its summary judgment burden to show Robichaux falls outside of the criteria outlined above.

Since the court is required to follow the 5th Circuit precedent held in Barrosse, Robichaux’s state law tort claims are not preempted by the LHWCA and the court denied Avondale’s motion for summary judgment.

Read the full decision here.