Coleman v. Anco Insulations, Inc. (M.D. La., Apr. 21, 2017)

Our plain-English summary of Coleman v. Anco Insulations, Inc. (U.S. District Court, Middle District of Louisiana, April 21, 2017).

William D. Coleman sued Anco Insulations and other defendants in a case removed to federal court in Louisiana. He died of malignant mesothelioma on November 8, 2016. His widow, Pamela Coleman, and his daughter, Jody Coleman Nolte, asked to be substituted as plaintiffs and to add survival and wrongful death claims. Pilkington North America opposed. It said the plaintiffs had not shown they were the legal successors, because they gave no adoption decrees and no statements from Mr. Coleman's other children. It also questioned whether the two people who signed the heirship affidavit had personal knowledge. The court applied Federal Rule 25(a)(1) and Louisiana law on substitution of parties. It found that Pilkington gave no basis for its worry that the adoptions were informal. It also found that both signers' statements that they knew Mr. Coleman well showed personal knowledge. The court held the affidavit sufficient, granted the motion, and ordered the amended complaint filed. The opinion does not describe Mr. Coleman's work or asbestos exposure.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Middle District of Louisiana
• Decided: April 21, 2017
• Docket: Civil Action No. 15-821-BAJ-EWD
• Stage: Other
• State: Louisiana

Outcome. The magistrate judge granted the plaintiffs' motion to substitute Pamela Coleman and Jody Coleman Nolte for the deceased William Coleman and to file an amended complaint, over Pilkington North America's objection.

What the court held. Under Rule 25(a)(1) and Louisiana law, a motion to substitute heirs for a deceased party is supported by an affidavit of death and heirship, and affiants who state they were personally acquainted with the decedent show enough personal knowledge.

Issues decided: Wrongful Death and Survival, Trial Procedure and Discovery.

The people and their exposure

• William D. Coleman: mesothelioma; died

The defendants

• Pilkington North America, Inc. (f/k/a Libbey Owens Ford)
• Anco Insulations, Inc.
• Liberty Mutual Insurance Company (insurer)
• Safety National Casualty Corporation (insurer)
• Travelers Casualty and Surety Company (insurer)
• Bedivere Insurance Company (insurer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Coleman v. Anco Insulations, Inc. (February 10, 2017). The magistrate judge ordered the plaintiffs' heirs to file a new motion to substitute with a proposed amended complaint that properly alleges the citizenship of all parties, and to state whether the defendants consent.
• Coleman v. Anco Insulations, Inc. (April 25, 2017). The magistrate judge granted the unopposed motion by defendant Pilkington North America to run destructive fiber burden testing on up to 50% of the decedent's pathology materials, against the plaintiffs.
• Coleman v. Anco Insulations, Inc. (May 8, 2017). The magistrate judge granted in part and denied in part the Coleman plaintiffs' motion to compel Pilkington North America to produce a Rule 30(b)(6) corporate representative, granting topic 52 and topic 40 (pre-1972 only) and denying the general dust and post-employment topics.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

WILLIAM D. COLEMAN,

v.

ANCO INSULATIONS, INC. ET AL.

Civil Action No. 15-821-BAJ-EWD.

April 21, 2017.

United States District Court, M.D. Louisiana.

Pamela Coleman, Plaintiff, represented by Susannah B. Chester-Schindler, Waters & Kraus, LLP.

Jody Coleman Nolte, Plaintiff, represented by Susannah B. Chester-Schindler, Waters & Kraus, LLP.

Liberty Mutual Insurance Company, Defendant, represented by Susan M. Rogge, Barrasso Usdin Kupperman Freeman & Sarver LLC, H. Minor Pipes, III, Barrasso Usdin Kupperman Freeman & Sarver LLC & Kimberly R. Silas, Barrasso Usdin Kupperman Freeman & Sarver, L.L.C..

Safety National Casualty Corporation, Defendant, represented by Chris James LeBlanc, Watson, Blanche, Wilson & Posner, LLP & William Eugene Scott, III, Watson, Blanche, Wilson & Posner, LLP.

Travelers Casualty and Surety Company, Defendant, represented by Kristopher T. Wilson, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard & Katherine L. Osborne, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard.

Pilkington North America, Inc., Defendant, represented by Matthew Culp, Rasmussen Willis Dickey Moore, pro hac vice, Matthew S. Jensen, Rasmussen Willis Dickey & Moore, LLC, pro hac vice & Jane H. Barney, J.H. Barney Law Firm, LLC. Bedivere Insurance Company, Defendant, represented by Samuel M. Rosamond, III, Taylor Wellons Politz & Duhe, APLC. Bedivere Insurance Company, efendant, represented by Adam D. deMahy.

Bedivere Insurance Company, Defendant, represented by Angela Jacketti O'Brien, Louisiana Department of Justice - Office of Attorney General.

RULING AND ORDER

ERIN WILDER-DOOMES, Magistrate Judge.

Before the court is Plaintiffs' Second Revised Joint Rule 25(a)(1) Motion for Substitution of Parties Plaintiff and Motion for Leave to File Plaintiffs' First Supplemental and Amended Complaint (the "Motion to Substitute and Amend").[1] Per the Motion to Substitute and Amend, Pamela Coleman and Jody Coleman Nolte (collectively, "Movants") seek to be substituted in William D. Coleman's stead as plaintiffs and to "formally allege causes of action sounding in survival and wrongful death." [2] Defendant Pilkington North America, Inc. (f/k/a Libbey Owens Ford) ("PNA") has filed an opposition.[3]

For the reasons set forth herein, the Motion to Substitute and Amend is GRANTED. The clerk is ORDERED to file Plaintiffs' First Supplemental and Amended Complaint (R. Doc. 86-2) into the record.

I. Background

The case was removed from state district court pursuant to 28 U.S.C. § 1332 based upon complete diversity of citizenship. [4] Per Movant's proposed First Supplemental and Amended Complaint, Movants continue to assert this court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332.[5]

Movants assert that William D. Coleman, the named plaintiff in this suit, died from malignant mesothelioma on November 8, 2016, and that Movants are Mr. Coleman's statutory heirs and the proper persons to pursue survival and wrongful death

claims.[6] In support of their position, Movants have attached, inter alia, an Affidavit of Death, Domicile and Heirship (the "Affidavit") stating:

Decedent was married three times, first to Brenda Lovelock, which marriage ended in divorce, and of which

two children were born, namely, William Shawn Calhoun, who was later adopted by Ricky Calhoun, and

Dawn Allison Calhoun, who was later adopted by Ricky Calhoun, second to Carolyn Cordell Coleman Foster,

which marriage ended in divorce, and of which marriage two children were born, namely Christopher

Chambliss Foster, who was later adopted by Wayne Foster, and Cullen Cordell Coleman, who was later

adopted by Wayne Foster, and third to Pamela Sue Coleman, with whom he was living with and legally

married to at the time of his death, and of which marriage no children were born. WILLIAM DALE COLEMAN

also fathered one child out of wedlock, namely Jody Juanita Nolte.[7]

PNA objects to Movants' proposed substitution, and asserts that Movants have not provided sufficient proof of legal successorship.[8] PNA points out that Movants have not provided "documentation of any legal adoptions, such as certified copies of adoption decrees" and that the Affidavit is not the same as "signed affidavits from the adopted children themselves (disclaiming rights)."[9] Additionally, PNA argues that the affiants attesting to the Affidavit provide no factual basis for their asserted personal knowledge[10] and that PNA "is particularly concerned" that the adoptions referenced in the Affidavit were "merely informal" such that the referenced children's legal rights with respect to Mr. Coleman were not terminated.[11] II. Law and Analysis

Federal Rule of Civil Procedure 25(a)(1) provides that "[i]f a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed."[12] This court has explained that upon a party's death, the court must make the determination regarding proper substitution "pursuant to the procedural mechanism found in Rule 25(a)(1) of the Federal Rules of Civil Procedure and in light of the substantive inheritance laws of the State of Louisiana." Wilkerson v. Stalder, 2013 WL 6665745, at * 1 (M.D. La. Dec. 17, 2013).

Pursuant to La. C.C.P. art. 801, "[w]hen a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality." The code article defines "legal successor" as, inter alia, "[t]he survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor." La. C.C. art. 2315.1 provides a hierarchy of persons entitled to maintain a survival action, with the first tier being "[t]he surviving spouse and child or children of the deceased, or either the spouse or the child or children." Mrs. Coleman and Mrs. Nolte assert they fit within this category. Movants are correct that children given in adoption are not included within the enumerated classes set forth in La. C.C. 2315.1. See, La. C.C. art. 2315.1(D) ("As used in this Article, the words `child', `brother', `sister', `father', `mother', `grandfather', and `grandmother' include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively."); Nelson v. Burkeen Constr. Co., 605 So. 2d 681, 683 (La. App. 2 Cir. 1992) ("The 1960 amendment deleted the reference to children given in adoption. Since children given in adoption are not included in the enumerated classes they are without a remedy for the death of their natural father.").

"Jurisprudence interpreting Article 801 requires that a motion to substitute for a deceased party include proof of quality, such as an affidavit of death and heirship or a judgment of possession." Kemper v. Don Coleman, Jr., Builder, Inc., 746 So. 2d 11, 15 (La. App. 2 Cir. 1999). In Austrum v. City of Baton Rouge, 252 So. 2d 434, 438 (La. 1973), the Louisiana Supreme Court approved of the trial court's substitution of the heirs of the decedent as plaintiffs based on "an ex parte written motion supported by a duly notarized affidavit of two persons as to the death and heirship of the deceased." See also, Konneker v. Sewerage & Water Bd. of New Orleans, 703 So. 2d 1341, 1343 (La. App. 4 Cir. 1997) ("In his motion to substitute, Mr. Konneker, Jr. states that he is the decedent's only child, but Mr. Konneker, Sr. testified at trial that he `had a bunch of kids.' In view of this conflicting evidence and the movant's failure to furnish an affidavit of death and heirship, we are unable to act on the motion to substitute.") (internal citations omitted). Despite PNA's objections, it has not provided any basis for its "particular[] concern" that the adoptions set forth in the Affidavit were "merely informal."[13] Moreover, both affiants assert that in the Affidavit that "they were well and personally acquainted with" Decedent. The undersigned finds such assertion

sufficient to establish the affiants' personal knowledge of the facts set forth in the Affidavit.[14] Accordingly, the Affidavit is sufficient evidence to support Movants' Motion to Substitute and Amend.

III. Conclusion

For the reasons set forth herein, Plaintiffs' Second Revised Joint Rule 25(a)(1) Motion for Substitution of Parties Plaintiff and Motion for Leave to File Plaintiffs' First Supplemental and Amended Complaint[15] is GRANTED. The clerk is ORDERED to file Plaintiffs' First Supplemental and Amended Complaint (R. Doc. 86-2) into the record.

[1] R. Doc. 86.

[2] R. Doc. 86, p. 1.

[3] R. Doc. 90.

[4] R. Doc. 1.

[5] R. Doc. 86-2, ¶ 6.

[6] R. Doc. 86-1, pp. 3-4.

[7] R. Doc. 86-8. In addition to the Affidavit, Movants have provided Mr. Coleman's death certificate, the Marriage License between Mr. Coleman and Pamela Sue Pennewell, the Judgment of Possession recognizing Pamela Sue Coleman as Decedent's surviving spouse, and the birth certificate of Jody Juanita Coleman R. Doc. 86-8.

[8] R. Doc. 90.

[9] R. Doc. 90, pp. 2-3.

[10] PNA asserts that "if the Court is inclined to rely upon those affiants' affidavit in ruling upon the instant motion or if Plaintiffs' counsel purports to call them at trial," "PNA reserves its right to seek leave to take the depositions of those witnesses. . . ." R. Doc. 90, p. 5. [11] R. Doc. 90, p. 4 (citing provisions of Louisiana Children's Code, La. Ch. C. arts. 1218, 1240, & 1256, for agency, private, and intrafamily adoptions setting out that the effect of a final decree of adoption is, inter alia, to relieve the adopted child "of all of his legal duties" and divest him "of all his legal rights with regard to the parents" subject to exceptions inapplicable here).

[12] Pilkington does not argue that the proposed substitution is untimely. Mr. Coleman died on November 8, 2016. On February 1, 2017, Movants filed their first Joint Rule 25(a)(1) Motion for Substitution of Parties Plaintiff and Motion for Leave to File Plaintiffs' First Supplemental and Amended Complaint. R. Doc. 57. The court ordered Movants to file a motion to substitute their proposed pleading with a pleading that properly set forth the citizenship of the parties. R. Doc. 59. On March 7, 2017, a hearing was held with the parties to discuss, inter alia, the proposed substitution. See, R. Doc. 72. The court ordered Movants to file any revised Motion to Amend/Motion for Substitution within twenty-one days of the March 7, 2017 Report and Order. R. Doc. 72. Movants filed the instant Motion to Substitute and Amend on March 28, 2017. R. Doc. 86.

[13] In previous filings in support of the proposed substitution, Movants have noted that "Mr. Coleman does have four other biological children, who have been notified of the above captioned suit by undersigned Counsel. Undersigned Counsel was advised when speaking with these potential heirs, however, that they were each adopted by another man children [sic]." R. Doc. 57-1, p. 3, no. 11; R. Doc. 61-1, p. 3, n. 11.

[14] In questioning the competency of the affiants, PNA relies on Foundation Materials, Inc. v. Carrollton Mid-City Investors, LLC and Harmon Construction, LLC, 66 So. 3d 1230, 1234, n. 4 (La. App. 4 Cir. 2011). There, the court noted that "no matter how apparently reliable, those matters occurring `upon belief' of the affiant are universally rejected as a substitute for personal knowledge. . . ." Here, the affiants have asserted they were personally acquainted with the Decedent.

[15] R. Doc. 86.

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites