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Summary Judgment Granted for Insurer Where Plaintiff Failed to Establish Injury Occurred in Policy Period

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U.S. District Court for the Eastern District of Louisiana, August 3, 2022

Originally filed by Decedent prior to his passing related to mesothelioma, Plaintiffs were substituted as the parties in a wrongful death claim brought against Travelers Indemnity Co. (“Travelers”), among other defendants, under Louisiana’s direct actions statute, La. R.S. § 22:1269. Decedent was a vessel inspector for American Bureau of Shipping (“ABS”) who inspected vessels to determine if they met classification requirements at various shipyards from 1970 to 2006. Defendants removed the action pursuant to federal officer removal statute, 28 U.S.C. § 1442(a)(1). 

Travelers insured Swiftships, Inc., (“Swiftships”) a shipyard in Morgan City, Louisiana, from December 1, 1970 through December 1, 1974 (the “policy period”).  Travelers, on a motion for summary judgment, asserted there was no evidence Decedent worked at Swiftships during the policy period or was exposed to asbestos while working at Swiftships in the policy period. 

Louisiana law requires an asbestos plaintiff to prove that exposure to a defendant’s asbestos product was significant and that that exposure was a substantial factor in bringing about the injured party’s mesothelioma. In addition, an insurer is only liable for asbestos related injuries if the injured party was exposed to the harmful conditions in the policy period. 

Decedent allegedly worked at Swiftships in the 1970s; however, he testified at his deposition that during the 1970s he spent 90-95% of his time as an ABS employee inspecting vessels at Avondale Shipyards, and did not provide names of any other shipyards he may have worked at in the remaining 5-10% of his work time in the 1970s. He testified at deposition prior to his death that he had worked at probably every shipyard in Morgan City in his career, of which Swiftships was one. In addition, he testified that he worked at Swiftships at some indeterminate point during his 35 years as a vessel inspector for ABS. This testimony was found to be insufficient to support an inference that he worked at Swiftships during the Travelers policy period. In the absence of evidence that Decedent was physically present at Swiftships in the policy period, the Court held that where evidence showed only that Decedent was present at Swiftships at some undefined point in his 35 year career, an assertion that he was injured at Swiftships during the policy period was “sheer speculation” and not sufficient raise a triable issue of fact to survive summary judgment. 

Read the full decision here