The plaintiff, Callen Cortez, was diagnosed with mesothelioma on June 2, 2020. On July 1, 2020, he filed an asbestos-related lawsuit against Avondale and approximately thirty-four other defendants, alleging that he contracted mesothelioma as a result of exposure to asbestos during his employment with various companies, including Avondale, as well as take-home exposure resulting from his brother’s work with various companies, including Avondale.
Avondale filed a motion for summary judgment alleging that the plaintiff’s claims against it should be dismissed because they are preempted by the Longshore and Harbor Workers’ Compensation Act (LHWCA). The motion sought dismissal of the plaintiff’s claims arising out of his own employment with Avondale, as well as his claims arising out of alleged exposure to asbestosfrom clothing that his brother brought home from Avondale. Avondale also argued that the plaintiff’s intentional tort claim must be dismissed, because there is no intentional tort exception to the LHWCA and, even if there were, the plaintiff has failed to create an issue of material fact on such a claim.
In opposition, the plaintiff argued that his claims against Avondale are not preempted by the LHWCA because his injuries fall within the “twilight zone” of concurrent federal and state jurisdiction over workers’ compensation claims. He also argued that, even if the LHWCA preempted his claims against Avondale arising out of his employment with Avondale, the statute does not preempt his third-party claims arising out of the plaintiff’s take-home exposure. Finally, the plaintiff maintained that the LHWCA has an intentional-tort exception, and that material facts remain in dispute as to such a claim.
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 alsoCelotex Corp. v.Catrett, 477 U.S. 317, 322-23 (1986) and 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.)
Avondale’s motion presented three distinct questions: (1) whether the plaintiff’s tort claims against Avondale as his employer are preempted by the LHWCA; (2) whether the plaintiff’s tort claims against Avondale as his brother’s employer as the alleged source of take-home exposure before the plaintiff’s work for Avondale, are preempted by the LHWCA; and (3) whether the plaintiff may maintain his intentional tort claim against Avondale.
First, whether the LHWCA preempts the plaintiff’s employee-employer claims, has been answered in the affirmative in multiple cases before this court and other sections of this court. SeeBarrosse 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); and Cobb v. Sipco Servs. & Marine, Inc., No. 95-2131, 1997 WL 159491 (E.D. La. Mar. 27, 1997).
Second, the court reiterated that the LHWCA provides that the “liability of an employer prescribed in … this title shall be exclusive and in place of all other liability of such employer to the employee.” 33 U.S.C. § 905(a)(emphasis added). Here, it is plain that the plaintiff’s allegations of take-home exposure through his brother, Daniel, “stand entirely apart from plaintiff[‘s] employment” with Avondale, and that the take-home exposure “would have occurred exactly as it did even if plaintiff[] had never worked for [Avondale].” Id. at 99. This court found that extending the preemptive effect of the LHWCA to bar the plaintiff’s take-home claim would run afoul of the statutory text and case law, which pertain exclusively to claims by employees against employers, for employment-related injuries. Accordingly, the court finds that permitting the plaintiff’s take-home claim does not conflict with LHWCA’s text (which addresses the liability of employers), nor would it undermine the Act’s quid pro quo, which directs benefits to employers and their employees, not to an employee’s teenage brother living at home.
Finally, the parties disputed whether the LHWCA recognizes an intentional-tort exception, but the court did not reach this issue, because even if such an exception existed, the plaintiff failed to point to evidence sufficient to meet his burden under Louisiana law. Here, the plaintiff did not submit any evidence suggesting that Avondale intended to harm him, or that his mesothelioma was “inevitable or incapable of failing.” Reeves v. Structural Pres. Sys., 731 So. 2d 208, 213 (La. 1999) (internal citations omitted). Accordingly, the plaintiff’s claim against Avondale “lies in the realm of negligence, not in the realm of intentional tort.”
Therefore, the court dismissed all of plaintiff’s claims against Avondale, except his take-home-exposure claims brought against Avondale in its capacity as Daniel Cortez’s employer.