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Wade v. Clemco Industries Corp.

United States District Court, E.D. Louisiana

January 2, 2018

ROSE WADE
v.
CLEMCO INDUSTRIES CORP., ET AL.

         SECTION “L” (5)

          ORDER AND REASONS

          ELDON E. FALLON United States District Judge.

         Before the Court is Defendants Mississippi Valley Silica Company, Inc., Lamorak Insurance Company, and Chevron's motion for partial summary judgment dismissing Plaintiff Rose Wade's claim for medical expenses incurred by her late-husband, Garland Wade. Rec. Doc. 60 & 62. Plaintiff opposes the motion. Rec. Doc. 63. Having considered the parties' arguments, submissions, and applicable law, the Court now issues this Order and Reasons.

         I. BACKGROUND

         From approximately 1962 to 1971, Garland Wade was employed as a sandblaster and paint sprayer on vessels owned by Coating Specialists Inc. Rec. Doc. 1 at 2. Mr. Wade also worked on permanent fixed platforms owned or operated by Chevron U.S.A. Inc., both in Louisiana and in federal waters. Id. During this period, he was exposed to silica dust, which resulted in silicosis and eventually connective tissue cancer. Rec. Doc. 1 at 3; Rec. Doc. 19 at 1-2.

         On September 20, 1973, Mr. Wade filed a lawsuit in the United States District Court for the Eastern District of Louisiana against his employer and several manufacturers or other non-employer entities under the Jones Act and general maritime law for damages. The case was assigned to Section E of the Court, and was settled by the then-parties. The Court entered a Stipulation of Facts, Findings of Fact and Conclusions of Law, a Judgment, a Satisfaction of Docket and a Receipt and Release. Included in the settled causes of action were claims for past and future medical expenses. The current defendants-Mississippi Valley Silica Company, Inc. (“MV”), Lamorak Insurance Company, and Chevron-were not parties in the 1973 action and were not involved in that settlement.

         Almost 42 years later, on January 21, 2015, Mr. Wade passed away. His widow, Ms. Wade, now brings the instant action against Defendants. She alleges that Defendants designed, marketed, manufactured, distributed or sold negligently-designed and manufactured products, exposing Mr. Wade to asbestos fibers which proximately and directly caused or aggravated his illness and death. Rec. Doc. 1 at 1-3, 6; Rec. Doc. 23 at 1-2. Specifically, she claims that Chevron was negligent in allowing Mr. Wade 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 Mr. Wade 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, entitling Plaintiff to maintain direct action against Lamorak. Id. Plaintiff seeks $5, 000, 000.00 in damages, claiming she is entitled to a wrongful death action against Defendants pursuant to Louisiana and general maritime negligence law. Rec. Doc. 1 at 3; Rec. Doc. 19 at 2.

         On February 1, 2017, this Court held that Plaintiff could only recover pecuniary losses against the nonemployer defendants here because “a seaman's damages against both employers and non-employers are limited to pecuniary losses under the Fifth Circuit's holdings in McBride v. Estis Well Service., L.L.C., 768 F.3d 382 (5th Cir. 2014) and Scarborough v. Clemco Industries, Inc., 391 F.3d 660, 668 (5th Cir. 2004). See Rec. Doc. 50. The issue before the Court today is whether Plaintiff, Mr. Wade's widow, can seek medical expenses incurred by the decedent prior to his death as part of Plaintiff's pecuniary losses.

         II. PRESENT MOTION

         Following the Court's February 1, 2017 Order finding that only pecuniary losses can be recovered, Plaintiff submitted as pecuniary losses medical bills incurred by Mr. Wade prior to his death, burial expenses, and certain information regarding loss of service. These expenses were accrued in 2014 and 2015, and this lawsuit was filed in 2015. Defendants' instant motion for summary judgment seeks dismissal of the claim for Decedent's medical bills, arguing that it is time-barred under 46 U.S.C. § 30106.

         III. LEGAL STANDARD

         Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)); 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 refrains from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).

         Under Federal Rule of Civil Procedure 56(c), the moving party bears the initial burden 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, 477 U.S. at 322. When the moving party has met its Rule 56(c) burden, “[t]he non-movant cannot avoid summary judgment . . . by merely making ‘conclusory allegations' or ‘unsubstantiated assertions.'” Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir. 2002) (quoting Little, 37 F.3d at 1075). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be satisfied that “a reasonable jury could not return a verdict for the nonmoving party.” Delta, 530 F.3d at 399.

         IV. ...


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