United States District Court, E.D. Louisiana
LORITA SAVOIE, ET AL.
HUNTINGTON INGALLS, ET AL.
DOUGLAS, MAG. JUDGE
ORDER & REASONS
the Court is the Avondale Interests' Motion
for Partial Summary Judgment on Wrongful Death Claims (Rec.
Doc. 238), Plaintiffs' opposition (Rec. Doc.
323), and the Avondale Interests' reply (Rec. Doc. 479).
Because Plaintiffs' wrongful death claims against the
Avondale Interests are barred by the Longshore and Harbor
Workers' Compensation Act (“LHWCA”), the
Court will grant the motion and dismiss with prejudice
Plaintiffs' wrongful death claims. Furthermore, and in
accordance with the Court's prior ruling that Travelers
Indemnity Company is entitled to the same relief as its
insureds (Rec. Doc. 467), the Court will also dismiss
Plaintiffs' wrongful death claims against Travelers
Court assumes the reader's familiarity with this case and
provides only a brief account of the relevant facts and
procedural history. Joseph B. Savoie, Jr. worked at Avondale
Shipyards from approximately 1948 through 1995. In July of
2014, Savoie was diagnosed with mesothelioma. Soon thereafter
he filed this action against the Avondale Interests and other
defendants, claiming his work at Avondale Shipyards exposed
him to asbestos fibers that eventually caused him to develop
mesothelioma. Savoie passed away on September 15, 2014, and
his survivors were substituted as plaintiffs.
amended petition asserts both survival and wrongful death
claims. The instant motion seeks dismissal of Plaintiffs'
wrongful death claims against the Avondale Interests, but not
the survival claim. (Rec. Doc. 238). In an earlier decision
in this case, the Court granted the Avondale Interests'
Motion for Partial Summary Judgment Seeking Dismissal of All
Intentional Tort, Fraud, and Concealment Claims. (Rec. Doc.
390, granting Rec. Doc. 269). That decision bears
significantly on the outcome here, as explained below.
judgment is proper when 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).
Louisiana law, wrongful death claims are controlled by the
applicable law and jurisprudence in effect at the time of
death. Walls v. Am. Optical Corp., 98- 0455 (La.
9/8/99), 740 So.2d 1262, 1270. At the time of Savoie's
death in 2014, the LHWCA covered employees who satisfied that
Act's situs and status elements, per the 1972 Amendments
to the LHWCA. See Herb's Welding, Inc. v. Gray,
470 U.S. 414, 415-16 (1985). The status element requires that
the employee be “engaged in maritime employment,
including any longshoreman or other person engaged in
longshoring operations, and any harbor-worker including a
ship repairman, shipbuilder, and ship-breaker . . . .”
33 U.S.C. § 902(3). Situs under the LHWCA is met when
the “disability or death results from an injury
occurring upon the navigable waters of the United States
(including any adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other adjoining area
customarily used by an employer in loading, unloading,
repairing, dismantling, or building a vessel).” 33
U.S.C. § 903(a).
Avondale Interests argue that Savoie's work for Avondale
constituted ship repair and shipbuilding under the LHWCA,
which satisfies the status element. They further argue that
the place where Savoie was allegedly exposed to asbestos,
Avondale Shipyards, satisfies the LHWCA's situs element.
Plaintiffs do not dispute that Savoie meets the LHWCA's
situs and status elements. Accordingly, the Court finds that for
purposes of Plaintiffs' wrongful death claims, Savoie was
covered by the LHWCA.
established LHWCA coverage, the Avondale Interests further
argue that §§ 905(a) and 933(i) of the LHWCA
immunizes them against Plaintiffs' wrongful death tort
claims. Plaintiffs counter that they assert
intentional torts, which the LHWCA does not preclude.
courts have recognized a narrow exception to LHWCA immunity
for intentional torts. See, e.g., Houston v.
Bechtel Assocs. Prof'l. Corp., 522 F.Supp. 1094,
1096 (D.D.C. 1981). In Johnson v. Odeco Oil & Gas
Co., 864 F.2d 40, 44 & n.1 (5th Cir. 1989), the
Fifth Circuit acknowledged that such an exception might
exist, but declined to decide that issue because there was no
evidence of wrongful conduct beyond negligence. This Court
previously granted the Avondale Interests' partial motion
for summary judgment and dismissed with prejudice
Plaintiffs' intentional tort claims. (Rec. Doc. 390).
Similar to Johnson, then, this Court need not decide
whether intentional torts are outside the scope of the
LHWCA's exclusivity provisions. Even if there is an
exception to LHWCA immunity for intentional torts, that
exception would not apply to Plaintiffs' wrongful death
claims against the Avondale Interests.
these reasons, Plaintiffs' wrongful death claims against
the Avondale Interests are precluded by the LHWCA and will be
dismissed with prejudice. Furthermore, this Court has ruled
that Travelers Indemnity Company is entitled to the same
relief as its insureds-James Bull, C. Edwin Hartzman, Hettie
“Dawes” Eaves, Henry “Zac” Carter,
John McCue and Ewing Moore. (Rec. Doc. 467). ...