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Sheppard v. Liberty Mutual Insurance Co.

United States District Court, E.D. Louisiana

January 30, 2017


         SECTION “R” (3)



         Liberty Mutual Insurance Company, in its individual capacity, moves for summary judgment on the grounds that plaintiff Jesse Frank Sheppard has failed to show that Liberty Mutual had any duty towards Sheppard. For the following reasons, Liberty Mutual's motion is granted.

         I. BACKGROUND

         This suit was originally filed in the Civil District Court for the Parish of Orleans.[1] Defendant Mosaic Global Holdings Inc. removed the action to this Court on March 22, 2016.[2] In his complaint, Sheppard alleges that he was exposed to asbestos “[o]n a daily basis” as an employee of Mosaic's predecessor company, Freeport Sulphur Company.[3] This exposure allegedly caused Sheppard to develop asbestos-related cancer, lung cancer, and/or mesothelioma.[4] Although Sheppard stopped working for Freeport in the early- to mid-1990s, [5] Sheppard's asbestos-related ailments were first diagnosed in October 2015.[6]

         In addition to Freeport/Mosaic, Sheppard sues several defendants involved in the manufacture, distribution, and sale of asbestos-containing products that Sheppard allegedly encountered in the course of his work.[7]Sheppard also brings claims against insurance companies that allegedly provided coverage to defendants for asbestos-related claims and withheld information from Sheppard about the danger of asbestos.[8]

         Sheppard brings claims for “negligence, intentional tort, fraud, and strict liability, ” and alleges that all defendants are “jointly, severally, and in solidio liable.”[9] He seeks damages for, among other things, physical and mental pain, loss of life, loss of income, and medical expenses.[10]

         During Sheppard's tenure at Mosaic, Liberty Mutual Insurance Company issued several worker's compensation/employer's liability and comprehensive general liability policies to Mosaic.[11] In his complaint, Sheppard alleges that Liberty Mutual “knew or should have known of the hazardous health effects of asbestos, but failed to inform or intentionally concealed that information from Mr. Sheppard and his co-employees.”[12]Liberty Mutual now moves for summary judgment on these claims on the grounds that Sheppard has failed to meet his burden to show that Liberty Mutual had any duty towards Sheppard.[13]


         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 also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers “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. Co., 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); see also Little, 37 F.3d at 1075. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

         If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the existence of a genuine dispute of material fact, or “showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at 1265.

         If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)).


         Under Louisiana's general negligence statute, Louisiana Civil Code article 2315, courts conduct a “duty-risk analysis” to determine whether to impose liability. See Audler v. CBC Innovis Inc., 519 F.3d 239, 249 (5th Cir. 2008) (quoting Lemann v. Essen Lane Daiquiries, Inc., 923 So.2d 627, 632-33 (La. 2006)). A plaintiff must prove each of five elements: (1) the defendant had a duty to conform his conduct to a specific standard of care (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard of care (the breach element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope-of-duty element); and (5) actual damages (the damages element). See S.J. v. Lafayette Par. Sch. Bd., 41 So.3d 1119, 1125 (La. 2010); see also Knight v. Kellogg Brown & Root Inc., 333 Fed.Appx. 1, 6 (5th Cir. 2009) (applying Louisiana law). A plaintiff's failure to prove any one of these elements results in a determination of no liability. Knight, 333 Fed.Appx. at 6.

         In Louisiana, “[t]he threshold issue in any negligence action is whether the defendant owed the plaintiff a duty, and whether a duty is owed is a question of law.” Bufkin v. Felipe's Louisiana, LLC, 171 So.3d 851, 855 (La. 2014). Under the “Good Samaritan” Doctrine, “parties who voluntarily assume certain duties for workplace safety must perform those duties in a reasonable and prudent manner.” Bujol v. Entergy Servs., Inc., 922 So.2d 1113, 1129 (La. 2004). Sheppard argues that Liberty Mutual voluntarily undertook to inspect Mosaic's facility, and otherwise involved itself in Mosaic's workplace safety regime, and thereby assumed a duty for safety at Mosaic's facilities. Neither Sheppard nor Mosaic, which filed an opposition to Liberty Mutual's motion, identify a single case holding that, under Louisiana law, an insurer may assume a duty for the safety of its insured's employees by inspecting or otherwise involving itself in workplace safety.

         Liberty Mutual issued several successive worker's compensation insurance policies to Mosaic between 1966 and 1988.[14] Liberty Mutual asserts, and neither Sheppard nor Mosaic disputes, that the actual insurance policies entered into between Mosaic and Liberty Mutual have been lost.[15]Therefore, to argue that it undertook no duty relating to Sheppard's safety, Liberty Mutual points to form worker's compensation “policy jackets” corresponding to the ...

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