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Comardelle v. Pennsylvania General Ins. Co.

United States District Court, Eastern District of Louisiana

December 15, 2014





Before the Court are motions[1] for summary judgment filed by defendant, P2S, LLC (“P2S”), seeking the dismissal of plaintiffs’ claims and the Avondale Interests’[2] crossclaims. Plaintiffs and the Avondale Interests oppose the motions.[3] P2S has also filed an alternative motion for partial summary judgment.[4] For the following reasons, the motions for summary judgment are GRANTED, and the alternative motion for partial summary judgment is DISMISSED AS MOOT.


Plaintiffs allege that decedent, Michael Comardelle (“Comardelle”), was “exposed to asbestos and asbestos-containing products manufactured, distributed, and sold” by defendants during the course of his employment from 1963 through 1979.[5] Plaintiffs allege, “As a result of these exposures to toxic substances, including asbestos, [Comardelle] contracted cancer, mesothelioma, and lung cancer, which was first diagnosed on approximately September 25, 2013.”[6] Comardelle died on May 3, 2014, and his widow and children were substituted as plaintiffs.[7]

Among a myriad of other claims, plaintiffs allege that Comardelle was exposed to asbestos during his employment with SECO Industries, Inc. (“SECO”)[8] from 1973 through 1979.[9] The original complaint alleged that the successor-in-interest to SECO’s liability is PSC Industrial Outsourcing, LP (“PSCIO”), [10] as SECO was merged into PSCIO on January 1, 2001.[11]

The parties agree that PSCIO formed Luling Acquisition, LLC (“Luling”) as a wholly owned subsidiary in 2003.[12] PSCIO subsequently transferred assets to Luling pursuant to a “Contribution Agreement.”[13] PSCIO then sold Luling to Plant Performance Services, LLC (“PPS”), a wholly owned subsidiary of Fluor Enterprises, Inc. (“FEI”), pursuant to a “Membership Interests and Asset Purchase Agreement.”[14] Luling was subsequently renamed P2S, LLC (“P2S”), and it remains a wholly owned subsidiary of PPS.[15]

On April 28, 2014, Comardelle filed a first supplemental and amending petition naming P2S as the successor-in-interest to SECO’s liability, [16] and on May 5, 2014, the Court granted the plaintiffs’ motion for voluntary dismissal without prejudice of all claims against PSCIO.[17] The Avondale Interests have asserted crossclaims against P2S for virile share contributions.[18]

The parties agree that “P2S is sued only as the alleged successor to the liability of SECO.”[19] P2S asserts that it is entitled to summary judgment because it is not the successor to any potential liability to plaintiffs or the Avondale Interests.[20]


Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines that there is no genuine issue of material fact. See Fed. R. Civ. P. 56. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party’s case. Id.; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).

Once the party seeking summary judgment carries its burden pursuant to Rule 56, the nonmoving party must come forward with specific facts showing that there is a genuine issue of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by creating “‘some metaphysical doubt as to the material facts, ’ by ‘conclusory allegations, ’ by ‘unsubstantiated assertions, ’ or by only a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a genuine issue of material fact exists when the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment may not rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. The nonmoving party’s evidence, however, “is to be believed, and all justifiable inferences are to be drawn in [the nonmoving party’s] favor.” Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).


Plaintiffs and the Avondale Interests contend that P2S assumed SECO’s potential liability to plaintiffs pursuant to the Contribution Agreement and the Membership Interests and Asset Purchase Agreement, [21] whereas P2S contends that the Contribution Agreement was unambiguous, limited in scope, and did not ...

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