U.S. District Court for the Eastern District of Louisiana, September 24, 2021
Plaintiff Ronald J. Barrosse filed a petition for damages in Civil District Court for the Parish of Orleans, Louisiana, against several defendants. The plaintiff alleged that he was exposed to asbestos and/or asbestos-containing products during the course of his employment at Avondale Industries, Inc., and Union Carbide between 1969 and 1979, and that such products were produced, installed, removed, maintained, sold, and distributed by the defendants. The plaintiff testified that during his employment, he worked on commercial vessels and U.S. Navy destroyer escorts on Wet Dock 1 in the main yard at Avondale Shipyard. He alleged that he had suffered physical and mental injuries as a result of his exposure to asbestos, including malignant mesothelioma.
The defendants removed the matter to federal court, asserting that the court has subject matter jurisdiction pursuant to the federal officer removal statute. Barrosse passed away shortly after, and the decedent’s spouse and children were substituted as plaintiffs.
Defendant Avondale filed a motion for summary judgment, seeking dismissal of the plaintiffs’ negligence claims. In the motion, Avondale argued that the Longshore and Harbor Workers’ Compensation Act (the Act) preempted the plaintiffs’ state law negligence claim because Louisiana law conflicted with the provisions and frustrated the underlying purpose of those provisions. The plaintiffs argued that their negligence claims are not preempted and that decedent’s off-shore exposure is not covered by the Act.
The parties disputed whether the pre-1972 or post-1972 version of the Act applied to the plaintiffs’ negligence claims against the Avondale interests. The Avondale interests argued that the date of disease manifestation, not the date of exposure, determined which version applies. Because the decedent’s mesothelioma manifested on March 17, 2020, the Avondale interests claimed the post-1972 version of the Act applied and preempted the plaintiffs’ negligence claims. The plaintiffs argued that the Act does not apply to the decedent’s off-site asbestos exposure, and that the pre-1972 version of the Act applied because asbestos exposure claims are governed by the law in effect when the exposure occurred.
In analyzing the issue, the court reasoned that the courts use the date of the injury to determine which version of the Act applies. As such, the post-1972 version of the Act would apply. The court noted the Act provides workers compensation benefits to covered employees who meet the Act’s “status” and “situs” requirements. To meet the status requirement, an employee must be engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and ship-breaker. To meet the situs requirement, disability or death must have resulted from an injury occurring upon the navigable waters of the U.S.
Finding secondary authority that the Act’s definition of “harborworker” includes electricians, the court found that the decedent’s asbestos exposure at Avondale Shipyard satisfied the status requirement. The court also found the decedent’s exposure at Avondale Shipyard satisfies the situs requirement of the Act as the decedent’s alleged asbestos exposure allegedly occurred while he was working on and around vessels being built or repaired at Avondale Shipyard.
The court rejected the plaintiffs’ argument that decedent’s off-site exposures from the asbestos dust on his work clothes were not covered by the Act as the plaintiffs’ argument was not supported by evidence. The court determined such off-site exposures from asbestos carried home on an Avondale worker’s clothing was not totally unrelated to work. As such, the court found the decedent’s off-site exposures to asbestos are out of and in the course of his employment.
The court then examined the issue as to whether the Act’s exclusivity provisions immunized defendants from tort liability and preempted the plaintiffs’ negligence claims. The court specifically found that allowing state law tort claims would contradict the clear text of the Act, namely the exclusivity provision, and would frustrate the Act’s purpose by undermining the quid pro quo that the statute guarantees to maritime employers and their employees. Based on that reasoning, the court found the Act preempted the plaintiffs’ state law negligence claims against the defendants and that the defendants were entitled to summary judgment.