Johns Manville Cannot be a Joint Tortfeasor Without Filing a Bankruptcy Trust Claim

U.S. District Court for the Eastern District of Louisiana, May 13, 2020

The plaintiffs alleged that Cary Gomez (decedent) contracted and died from mesothelioma as a result of take home exposure to asbestos through the decedent’s father’s work at Avondale Shipyards in the 1960s. The decedent was also allegedly exposed to asbestos through his own work as a plumber with Aardvark Contractors, Inc. from 1988 to 2011. The plaintiffs also named Wayne Manufacturing Company as a defendant, alleging that the company “manufactured and distributed asbestos containing products, specifically laminated wall boards on panels, consisting of marinite panels manufactured and distributed by Johns Manville Corporation.” In 1982, Johns Manville Corporation filed for bankruptcy and a Personal Injury Settlement Trust was established for the payment of asbestos-related injuries to those effected by Johns Manville products. Subsequently, defendant Huntington Ingalls Inc. filed a motion for partial summary judgment. Jefferson Parish School Board (JPSB) joined the motion, seeking that: (1) the Trust be added as joint tortfeasor in this act; (2) The plaintiffs’ survival action be automatically reduced by the Trust’s virile share in accordance with applicable law; and (3) the jury would assess the percentage of Johns Manville’s fault for the plaintiffs’ wrongful death claims. The plaintiffs opposed the motion on the grounds the plaintiffs have neither settled with nor made a claim against the Johns Manville Trust, so it should not be immediately deemed a joint tortfeasor ahead of trial.

Summary judgment is proper “if 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.” CelotexCorp. v. Catrett, 477 U.S. 317, 322 (1986). According to Louisiana law, “if a plaintiff settles with a joint tortfeasor, then the joint tortfeasor is released from paying contribution to the solidary obligor and the plaintiff’s recovery against the solidary obligor is reduced by the settling joint tortfeasor’s virile share. Wall v. Am. Emp. Ins. Co., 386 So. 2d 79, 82 (La. 1980). However, before the recovery against the solidary obligor can be reduced by the settling party’s virile share, it must be proven that the settling party was a joint tortfeasor. Id. at 82-83. Therefore, before a solidary obligor can receive a ‘virile share credit,’ plaintiffs must release a party through settlement-thereby precluding the remaining solidary obligors from seeking contribution from that party-and the released party’s liability as a joint tortfeasor must be established at trial. Id.”

Here, the plaintiffs did not file a claim against the Trust and, therefore, did not settle with the Trust. The court reiterated that the plaintiffs had not established that Johns Manville products were a cause of the decedent’s mesothelioma and that would need to be proven before the Trust could even be found liable. Because genuine issues of material fact exist, the court denied JPSB’s motion for summary judgment.

Read the full decision here.