United States District Court, E.D. Louisiana
ORDER & REASONS
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.
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.
“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.
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.
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.
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.
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.
Defendant Lamorak and MV's Motion for Partial Summary
Judgment (R. Doc. 34)
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.
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.
Defendant Clemco's Motion for Partial Summary Judgment
(R. Doc. 35)
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 ...