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Wade v. Clemco Industries Corp.

United States District Court, E.D. Louisiana

February 1, 2017

ROSE WADE
v.
CLEMCO INDUSTRIES CORP. ET AL

         SECTION "L"

          ORDER & REASONS

         Before the Court are three Motions seeking partial summary judgment filed by Defendants Lamorak Insurance Company (“Lamorak”) and Mississippi Valley Silicia Company (“MV”), R. Doc. 34, Clemco Industries Corp. (“Clemco”), R. Doc. 35, and Chevron USA (“Chevron”), R. Doc. 36. Defendants seek to dismiss Plaintiff's claims for punitive damages under general maritime law. Plaintiff filed a response opposing all of the Motions. R. Doc. 38. Defendants Lamorak and MV filed a reply, which Clemco and Chevron adopted. R. Doc. 43.

         I. BACKGROUND

         Plaintiff Rose Wade is the widow of the late Garland R. Wade (“Deceased”), who died on January 21, 2015, of exposure to silica dust which resulted in silicosis and eventually Connective Tissue Cancer. R. Doc. 1 at 3; R. Doc. 19 at 1-2. Plaintiff names Clemco Industries Corp (“Clemco”), Mississippi Valley Silica Company (“MV”), Lamorak Insurance Company (“Lamorak”), and Chevron U.S.A. Inc. (“Chevron”) (collectively, “Defendants”) as co-defendants on the grounds that Defendants designed, marketed, manufactured, distributed or sold negligently-designed and manufactured products, exposing Deceased to asbestos fibers which proximately and directly caused or aggravated his illness and death. R. Doc. 1 at 1-3, 6; R. Doc. 23 at 1-2. Plaintiff seeks $5, 000, 000 in damages, claiming she is entitled to a wrongful death action against Defendants pursuant to Louisiana and general maritime negligence law. R. Doc. 1 at 3; R. Doc. 19 at 2.

         From approximately 1962-1972, Deceased was employed as a sandblaster and paint sprayer on vessels owned by Coating Specialists Inc. R. Doc. 1 at 2. Deceased also performed work on permanent fixed platforms owned and/or operated by Chevron U.S.A. Inc., both in Louisiana and in federal waters. Id. Plaintiff alleges that the defective design, manufacture, and distribution of the materials used by Deceased in his work as a sandblaster exposed him to silica and lead to his Connective Tissue Cancer. Id. at 3. Such materials include, but are not limited to, a hood provided by Clemco and sand provided by MV, who allegedly designed, manufactured, and/or distributed such defective equipment negligently and without instruction for proper use. Id. at 4. Plaintiff also claims, among other things, failure to warn and failure to provide adequate equipment and protective devices by Clemco, MV, and Chevron. Id. at 6.

         Plaintiff further alleges that Chevron was negligent in allowing Deceased to come onto and work on its platforms without proper equipment and materials, consequently failing to provide a safe workplace. Id. at 5. Plaintiff claims that the materials and equipment used by Deceased were defective in design, marketing, and their foreseeable use or misuse. Id. Finally, Plaintiff alleges that Defendant MV was covered under an applicable insurance policy issued by Lamorak, which is therefore liable for damages. Id. The policy allegedly insures to the benefit of Plaintiff, entitling Plaintiff to maintain direct action against Lamorak. Id.

         Plaintiff alleges she suffered both emotional and financial harm as a result of her husband's death and the circumstances thereof. Id. at 7. Plaintiff also claims that as a proximate result of Deceased's death, Deceased suffered non-pecuniary loss. Id.

         All Defendants separately answered the complaint and amended complaint, denying liability and asserting various affirmative defenses. R. Docs. 6, 9, 11, 12, 26, 29, 30, 31.

         II. PRESENT MOTIONS

         a. Defendant Lamorak and MV's Motion for Partial Summary Judgment (R. Doc. 34)

         Lamorak and MV (“Lamorak Defendants”) seek partial summary judgment dismissing Plaintiff's claims for non-pecuniary losses. Defendants argue that “a Jones Act seaman or his survivors cannot recover non-pecuniary damages from a non-employer third party.” R. Doc. 34 at 2 (citing Scarborough v. Clemco Industries, Inc., 391 F.3d 660, 668 (5th Cir. 2004)). Defendants contend that, like the Plaintiff in Scarborough, Deceased filed a personal injury case in state court. As a part of that action, the Court determined that Deceased was a seaman, and therefore the rule in Scarborough applies to Plaintiff's claims here. While Defendants acknowledge that in Collins v. A.B.C. Marine Towing, L.L.C., this Court determined that the “takeaway from Townsend . . . is that a seaman can recover punitive damages under general maritime law if the Jones Act is not implicated, ” they aver that Collins should not apply in this case, as it does not comport with the Fifth Circuit's en banc decision in McBride v. Estis Well Service., L.L.C.. 768 F.3d 382 (5th Cir. 2014). Collins, No. 14-1900, 2015 WL 5254710, at *5 (E.D. La. Sept. 9, 2015); R. Doc. 34 at 4.

         Instead, Defendants argue that “Scarborough, which held that a seaman may not recover punitive damages against either his employer or a non-employer, is binding on this Court and has never been overruled.” R. Doc. 34 at 4. According to Defendants, rather than overruling Scarborough, the United States Supreme Court's decision in Townsend “simply allowed punitive damages for an employer's arbitrary withholding of maintenance and cure.” R. Doc. 34 at 5. Because Plaintiff's claim does not involve maintenance and cure payments, Defendants contend that Plaintiff's claims for non-pecuniary damages must be dismissed. R. Doc. 34 at 5-6.

         b. Defendant Clemco's Motion for Partial Summary Judgment (R. Doc. 35)

         Like the Lamorak Defendants, Clemco seeks partial summary judgment dismissing Plaintiff's claims for non-pecuniary damages. R. Doc. 35 at 2. Relying on Scarborough, Clemco argues Jones Act seamen and their survivors cannot recover non-pecuniary damages, even against non-employer third parties. R. Doc. 35 at 2 (citing Scarborough, 391 F.3d at 668). Clemco adopts the arguments made in the Lamorak Defendants' Motion, and contends that Townsend “did not overrule Scarborough as to the availability of non-pecuniary damages from a ...


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