Court: United States District Court for the Eastern District of Louisiana
Plaintiff Frank P. Ragusa Jr. filed an asbestos-related lawsuit in Civil District Court for the Parish of Orleans alleging he was exposed to asbestos in 1972, and from 1975 to 1976, while working at the Avondale Shipyard. He alleged that as a result of his occupational exposure to asbestos he developed mesothelioma.
Defendant Avondale moved for summary judgment, seeking dismissal of the plaintiff’s claims as barred and preempted by the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 905(a) and 933(i). 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., Office of Workers’ Comp.Programs, 954 F.3d 259, 262 (5th Cir. 2020). A claim under the LHWCA must first meet the status and situs requirements to apply.
The status requirement limits application of the LHWCA to employees in “traditional maritime occupations,” including “any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and shipbreaker.” New Orleans Depot Servs. v. Dir., Office of Worker’s Comp. Programs, 718 F.3d 384, 389 (5th Cir. 2013) (citing 33 U.S.C. § 902(3)). The status test is satisfied when the person is “directly involved in an ongoing shipbuilding operation.” IngallsShipbuilding Corp. v. Morgan, 551 F.2d 61, 62 (5th Cir. 1977). The situs requirement 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, Inc. v. Pennsylvania, 447 U.S. 715, 719 (1980) (“In 1972, Congress … extend[ed] the LHWCA landward beyond the shoreline of the navigable waters of the United States.”).
In this case, the court found that both the status and situs requirements were met. The plaintiff worked as a tacker, building barges and then as a crane operator on deck of a ship. These types of work satisfied the status test because they were essential steps of the shipbuilding process. The plaintiff’s alleged occupational asbestos exposures occurred at the Avondale Shipyard and on a rig in the Mississippi River. These two facilities satisfied the situs requirement, as they were areas used by Avondale in repairing and building vessels on and adjacent to navigable waters of the United States.
Plaintiff argued that the LHWCA does not preempt the plaintiff’s negligence and intentional tort claims. The exclusivity provision of the LHWCA provides that:
“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).
However, the court held that because permitting the plaintiff’s tort claims against Avondale as his employer would contradict the plain meaning of the exclusivity provision, as well as obstruct the purpose of the LHWCA, these claims were preempted.
Accordingly, the Court granted Avondale’s motion for summary judgment.
Read the full decision here.