Cortez v. Lamorak Insurance Company (E.D. La., May 11, 2022)

Our plain-English summary of Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, May 11, 2022).

Callen Cortez sued about thirty-five defendants in Louisiana state court, including former employers, manufacturers and insurers, alleging he contracted mesothelioma from asbestos exposure during his career and from take-home exposure through his father's and brothers' work. The case was removed to federal court. Eagle, Inc., an alleged supplier of asbestos-containing products, had been defended under a policy from Lamorak Insurance Company, which was merged into Bedivere. After Bedivere was declared insolvent, Eagle asked to file a supplemental answer claiming credits and deductions under the Louisiana Insurance Guaranty Association statute. A Magistrate Judge allowed it, and Cortez asked the district judge to review that order. While the request was pending, Cortez filed a third amended complaint, and Eagle answered it on time, repeating its earlier defenses including the credit defense. The district judge found that Eagle did not need permission for that answer and that it responded to new allegations about the insurance guaranty association. The motion for review was denied as moot.

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, Eastern District of Louisiana
• Decided: May 11, 2022
• Docket: Civil Action No. 20-2389
• Stage: Other
• State: Louisiana

Outcome. The district court denied as moot plaintiff Cortez's motion for review of the Magistrate Judge's order allowing Eagle, Inc. to file a supplemental answer, because Eagle's later answer to the third amended complaint made the earlier order irrelevant.

What the court held. A motion seeking review of an order granting leave to file a supplemental answer is moot where the defendant later filed a timely answer to an amended complaint that did not require leave and that responded to new matters raised in it.

Issues decided: Insurance Coverage, Trial Procedure and Discovery.

The people and their exposure

• Callen Cortez: mesothelioma

Who	Work	Where	When	Products
Callen Cortez	career work (unspecified)
Callen Cortez	family member of father and brothers who worked with asbestos; dust brought home

The defendants

• Eagle, Inc. (supplier)
• Lamorak Insurance Company (insurer)
• Bedivere Insurance Company (insurer)
• Louisiana Insurance Guaranty Association

Other decisions in this case

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

• Cortez v. Lamorak Insurance Co. (November 23, 2020). The court denied Callen Cortez's motion to remand, holding that Avondale (Huntington Ingalls, Lamorak Insurance and Albert Bossier) timely and properly removed the case under the Federal Officer Removal Statute.
• Cortez v. Lamorak Insurance Co. (May 20, 2021). The court granted Lamorak's motion and stayed and administratively closed the whole case until September 12, 2021, over plaintiff Cortez's objection that he needed an expedited trial.
• Cortez v. Lamorak Insurance Company (February 7, 2022). The court denied the Louisiana Insurance Guaranty Association's motion for summary judgment, so plaintiff Callen Cortez's claims arising from the Gabler Insulations insurance coverage go forward.
• Cortez v. Lamorak Insurance Company (April 4, 2022). The court granted Avondale's summary judgment motion in part, dismissing Cortez's tort claims against Avondale as his employer and his intentional-tort claim, but denied it as to his take-home exposure claims against Avondale as his brother's employer.
• Cortez v. Lamorak Insurance Company (April 18, 2022). The court granted plaintiff Callen Cortez's motion for summary judgment that he has mesothelioma and that asbestos caused it, over the defendants' oppositions, while leaving specific causation issues for the jury.
• Cortez v. Lamorak Insurance Company (May 3, 2022). The court granted summary judgment to Entergy, First State, USF&G, Berkshire and Insulations, LLC, granted GE's motion in part (insulation claims) and denied it in part (asbestos gasket claims), and denied Foster Wheeler's motion; it also granted LIGA's motion in limine excluding hearsay.
• Cortez v. Lamorak Insurance Company (May 11, 2022). The court granted insurer USF&G's unopposed motion for partial summary judgment and dismissed plaintiff Callen Cortez's punitive-damages claims against it.
• Cortez v. Lamorak Ins. Co. (May 19, 2022). The court granted Continental Insurance Company's summary judgment motion, holding the LHWCA preempted Cortez's state-law tort claims against it as Halter Marine's insurer and that his intentional-tort claims failed for lack of evidence, and dismissed Continental's two other summary-judgment motions as moot.
• Cortez v. Lamorak Insurance Company (May 19, 2022). The court granted Trinity's summary judgment motion and the motions to dismiss by Continental, Liberty Mutual and Travelers, dismissing with prejudice Albert Bossier's third-party claims because no substitution was made within 90 days after notice of his death.
• Cortez v. Lamorak Ins. Co. (July 8, 2022). The court granted Westinghouse (ViacomCBS) partial summary judgment on claims about asbestos insulation used on its turbines and denied it on claims about asbestos gaskets it supplied or specified for those turbines.
• Cortez v. Lamorak Ins. Co. (July 13, 2022). The court granted Westinghouse (ViacomCBS) partial summary judgment dismissing the failure-to-warn claims, but denied it on the Halter Marine exposure and on whether its FRDM was a substantial factor in causing Cortez's mesothelioma.
• Cortez v. Lamorak Insurance Company (July 18, 2022). The court granted plaintiffs' motion to exclude Danny Joyce's hearsay testimony about Walsh-Healey inspectors, but denied it as to Avondale's expert relying on that testimony, so long as Avondale does not disclose the hearsay to the jury.
• Cortez v. Lamorak Insurance Company (July 20, 2022). The court denied as premature the motion in limine by Foster Wheeler, GE and Westinghouse to exclude plaintiffs' two medical causation experts as cumulative, leaving defendants free to object at trial.
• Cortez v. Lamorak Insurance Company (July 20, 2022). The court granted in part the motion by Eagle and LIGA to limit plaintiffs' industrial hygienist Gerard Baril, barring him from testifying that a supplier who puts its name on an insulation box should legally be considered its manufacturer, and denied the motion otherwise.
• Cortez v. Lamorak Insurance Company (July 25, 2022). The court granted partial summary judgment for Westinghouse (ViacomCBS), General Electric and Foster Wheeler, dismissing the plaintiffs' intentional-tort and fraud claims, and dismissed the punitive-damages part of the motion as moot.
• Cortez v. Lamorak Insurance Company (July 27, 2022). The court denied Goodrich's motion for summary judgment (joined by several co-defendants) on Callen Cortez's claim for loss of personal household services, so plaintiffs kept that claim.
• Cortez v. Lamorak Insurance Company (July 28, 2022). The court granted Travelers' summary judgment motion only on whether B&B was a professional vendor of asbestos (and so on strict products liability) and denied it on negligence duty and breach and on Article 2317 liability, so plaintiffs' other claims continued.
• Cortez v. Lamorak Insurance Company (August 10, 2022). The court granted Hopeman Brothers' motion for partial summary judgment, dismissing the plaintiffs' intentional-tort claims and their claims that Wayne Manufacturing was Hopeman's alter ego or part of a single business enterprise.
• Cortez v. Lamorak Insurance Company (August 16, 2022). The court granted third-party defendant Liberty Mutual's unopposed motion for partial summary judgment, ruling that Wayne Manufacturing was not a professional vendor of asbestos-containing wallboards, against third-party plaintiff Avondale; plaintiffs were found to lack standing to oppose.
• Cortez v. Lamorak Insurance Company (August 23, 2022). The court denied Hopeman Brothers and Liberty Mutual's motion to exclude or limit the testimony of plaintiffs' industrial hygienist Gerald Baril, so the plaintiffs' expert may testify.
• Cortez v. Lamorak Insurance Company (August 29, 2022). The court granted Hopeman Brothers partial summary judgment that it was not a manufacturer of the asbestos wallboards, but denied summary judgment on whether it was a professional vendor, so that question goes to trial against the Cortez plaintiffs and Avondale's opposition.
• Cortez v. Lamorak Insurance Company (September 9, 2022). The court denied Riley Power, Inc.'s motion for summary judgment on the statute of repose and exposure-sufficiency grounds, and denied its motion to strike as moot, so plaintiffs (the Cortez family) prevailed over Riley at this stage.
• Cortez v. Lamorak Insurance Company (September 29, 2022). The court granted in part and denied in part plaintiffs' motion in limine, excluding most of Westinghouse's expert Dr. Forman's testimony on insulation and general Navy requirements but allowing his testimony on shipyard asbestos-safety requirements relevant to the sophisticated-purchaser defense.
• Cortez v. Lamorak Insurance Company (October 4, 2022). The court denied Certain London Market Insurers' motion for partial summary judgment on the plaintiffs' claims arising from Avondale exposures after January 21, 1970, so the plaintiffs prevailed on the motion.
• Cortez v. Lamorak Insurance Company (October 7, 2022). The court granted defendants' motion for partial summary judgment, ruling that plaintiffs could not recover pre-death lost income or pre-death expenses as wrongful death damages.
• Cortez v. Lamorak Insurance Company (October 12, 2022). The court denied plaintiffs' Daubert motion in limine to limit the testimony of Hopeman Brothers' toxicologist, Dr. Brent Finley, so Hopeman prevailed on the motion.
• Cortez v. Lamorak Ins. Co. (October 14, 2022). The court granted plaintiffs' motion to strike eleven defense expert witnesses, including Hopeman Brothers' witness Max Richard, because no expert reports were produced.
• Cortez v. Lamorak Insurance Company (October 24, 2022). The court granted in part and denied in part defendants' omnibus motion in limine, barring terms like "asbestos industry" and the Bair memorandum, while allowing the "asbestos victim" label and lay testimony about dust.
• Cortez v. Lamorak Insurance Company (October 24, 2022). The court granted Travelers Indemnity Company's unopposed motion to quash the plaintiffs' trial subpoena, ruling against the plaintiffs.

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.

CALLEN J. CORTEZ,

v.

LAMORAK INSURANCE COMPANY, ET AL., SECTION "R" (1).

Civil Action No. 20-2389.

May 11, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is plaintiff Callen Cortez's motion for review[1] of the Magistrate Judge's Order and Reasons[2] granting defendant Eagle, Inc.'s motion for leave to file a supplemental answer.[3] Eagle opposes the motion.[4] For the following reasons, the Court denies the motion as moot.

I. BACKGROUND

This is an asbestos exposure case. Plaintiff Callen Cortez alleges that he contracted mesothelioma as a result of exposure to asbestos over the course of his career,[5] as well as take-home exposure resulting from his father's[6] and brothers' work when the family shared a home.[7] On July 1, 2020, plaintiff filed suit in the Civil District Court for the Parish of Orleans against approximately thirty-five defendants, including former employers, manufacturers, and insurance companies.[8] Among the defendants is Eagle, an alleged supplier of asbestos-containing products. On August 31, 2020, the case was removed to federal court.[9]

On March 11, 2021, Bedivere Insurance Company ("Bedivere") was declared insolvent pursuant to a liquidation order of the Commonwealth Court of Pennsylvania.[10] Bedivere includes by merger Lamorak Insurance Company ("Lamorak"), which held a policy of insurance with Eagle, and was providing a defense to Eagle in this case prior to Bedivere's insolvency.[11] On May 20, 2021, the Court granted a motion by Lamorak to stay these proceedings for six months pursuant to the Bedivere liquidation order.[12] The stay was lifted on September 12, 2021.

On September 29, 2021, Eagle moved for leave to file a supplemental answer, asserting statutory defenses entitling it to certain credits and deductions under the Louisiana Insurance Guaranty Association ("LIGA") statute, in light of Bedivere's insolvency.[13] Plaintiff opposed the motion, arguing that the supplement would be futile and cause him undue prejudice.[14] On October 28, 2021, Magistrate Judge Janis van Meerveld granted Eagle's motion for leave, and ordered that the supplemental answer be filed into the record.[15] On November 5, 2021, plaintiff filed a motion for review of the Magistrate Judge's order.[16] Plaintiff largely reiterates the arguments he raised in his initial opposition to Eagle's motion before the Magistrate Judge, and requests that Eagle not be permitted to assert the LIGA-credit defense that it has raised.[17] Eagle opposes the motion on the merits, and also contends that the motion is now moot.[18] It reasons that its underlying motion for leave to supplement was considered under Rule 15(d) of the Federal Rules of Civil Procedure, which requires leave of court to file a supplemental pleading. However, after defendant sought leave to supplement, plaintiff filed an amended complaint,[19] which entitled Eagle to file an answer. In that answer, Eagle reincorporated all defenses previously asserted, including the LIGA-credit defense.[20] Eagle contends that, because it did not require leave of court to file this answer, plaintiff's motion for review, which seeks to have Eagle denied leave to supplement, is moot.[21] II. DISCUSSION

The Court finds that plaintiff's motion for review of the Magistrate Judge's Order is moot. Eagle originally sought leave to file its supplemental answer because its deadline for filing responsive pleadings to plaintiff's second amended complaint had expired. Under Rule 15 of the Federal Rules of Civil Procedure, the court may, "[o]n motion and reasonable notice. . . permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed. R. Civ. P. 15(d) (emphasis added). The Magistrate Judge, in the Order that plaintiff now seeks to have reviewed, granted Eagle leave to file the supplemental answer.

But in the meantime, plaintiff sought and obtained leave to file a third supplemental and amending complaint.[22] Defendants filed answers to this amended complaint, including Eagle, whose answer "reavers all previous answers. . . as if copied [t]herein in extenso."[23] Eagle did not need leave of court to file this answer. Under Rule 12(a)(1), defendants had 21 days after service of plaintiff's amended complaint to file their responsive pleadings. Eagle's answer was filed eight days after the amended complaint, and was timely. And while most courts require leave to raise new allegations and defenses that go beyond responding to the new matters raised in the amended complaint," MC Asset Recovery, LLC v. Commerzbank AG, No. 06-13, 2015 WL 13544919, at [*5] (N.D. Tex. Dec. 10, 2015) (citations omitted), here, Eagle's answer is responsive to new matters raised in plaintiff's third amended complaint. Specifically, plaintiff added, in his amended complaint, the following paragraph:

Plaintiff also makes claims against The Louisiana Insurance Guaranty Association ("LIGA") who has statutory obligations to the plaintiff for policies of insurance issued by insolvent insurer, Lamorak Insurance Company. . ., based upon policies of insurance, included but not limited to, employers' liability, commercial general liability insurance policies and/or excess liability insurance policies sold by Lamorak Insurance Company to Eagle, Inc. . . ."[24]

This new allegation arises out of Lamorak's (i.e., Bedivere's) insolvency, which occurred after the filing of plaintiff's previous complaint.[25] Eagle's answer to the third amended complaint, incorporating all previous answers, responds directly to this new issue by asserting entitlement to a credit to which it was not entitled before Bedivere's insolvency. Plaintiff does not argue, and this Court does not find, that Eagle's answer to plaintiff's third amended complaint is either untimely or nonresponsive to the new issues asserted in the amended complaint.

Accordingly, Eagle's previously filed supplemental answer, which required leave of court at the time, is now beside the point. Eagle's operative answer is its answer to the amended complaint, and Eagle's ability to file that answer is not subject to dispute. The relief sought by plaintiff's motion would have no impact on the case, and his motion is therefore moot. Cf. Louisiana v. Bank of Am. Corp., No. 19-638, 2020 WL 3966875, at [*5] (M.D. La. July 13, 2020) (denying a 12(b)(6) motion to dismiss as moot because a second amended complaint had been filed in the meantime); Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov't, 2016 WL 4429953, at [*2] (E.D. La. Aug. 22, 2016) (same).

III. CONCLUSION

For the foregoing reasons, the Court DENIES as MOOT plaintiff's appeal of the Magistrate Judge's Order and Reasons.[26] [1] R. Doc. 319.

[2] R. Doc. 307.

[3] R. Doc. 284.

[4] R. Doc. 334.

[5] R. Doc. 1-1 at 3-6 (Complaint ¶¶ 3, 8).

[6] Id. at 7-9 (Complaint ¶¶ 11-16).

[7] R. Doc. 149 at 1-2 (Second Amended Complaint ¶¶ 94-95).

[8] Id. at 1-3 (Complaint ¶¶ 1-2); id. at 45-48.

[9] R. Doc. 1 (Notice of Removal).

[10] R. Doc. 284-5 (Order of Liquidation, Altman v. Bedivere Ins. Co., No. 1-BIC-2021 (Pa. Commw. Ct. Mar. 11, 2021)).

[11] See R. Doc. 228-2 at 2 (Lamorak's Motion to Enforce Stay and Notice of Liquidation and Statutory Stay) (May 10, 2021). [12] R. Doc. 244.

[13] R. Doc. 284; see R. Doc. 284-6 (Eagle's Supplemental Answer).

[14] R. Doc. 290.

[15] R. Doc. 307.

[16] R. Doc. 319.

[17] Id.

[18] R. Doc. 334.

[19] R. Doc. 301 (Plaintiff's Third Supplemental and Amending Complaint).

[20] R. Doc. R. Doc. 313 (Eagle's Answer to Plaintiff's Third Supplemental and Amending Complaint).

[21] R. Doc. 334 at 4.

[22] R. Doc. 301.

[23] See R. Doc. 313 at 2 (Eagle's Answer to Plaintiff's Third Supplemental and Amending Complaint ¶ 4). [24] R. Doc. 301 at 4 (Plaintiff's Third Supplemental and Amending Complaint ¶ IV.104).

[25] Plaintiff's second amended complaint was filed on January 20, 2021. R. Doc. 149. Bedivere was declared insolvent on March 11, 2021. [26] R. Doc. 319.

Sources

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