Cortez v. Lamorak Insurance Company (E.D. La., May 19, 2022)

Our plain-English summary of Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, May 19, 2022).

Callen Cortez sued about thirty-five defendants, including former employers, manufacturers, premises owners and insurers, in Louisiana state court. He alleged he developed mesothelioma, diagnosed June 2, 2020, from asbestos exposure during his employment with various companies. The case was removed to federal court. Albert Bossier, Jr., sued as an officer of Huntington Ingalls (Avondale), filed cross-claims and a third-party complaint against Continental, Liberty Mutual, Travelers and Trinity Industries. Bossier died on November 14, 2021, and his counsel filed a suggestion of death on January 7, 2022. More than ninety days passed with no motion to substitute a successor or representative. Trinity moved for summary judgment, and the insurers moved to dismiss; no party opposed the insurers' motions. The court held that Federal Rule of Civil Procedure 25(a)(1) required dismissal and granted all three motions. Bossier's third-party claims were dismissed with prejudice. The opinion does not address the merits of Cortez's own claims.

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 19, 2022
• Docket: Civil Action No. 20-2389
• Stage: Summary judgment
• State: Louisiana

Outcome. 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.

What the court held. Under Federal Rule of Civil Procedure 25(a)(1), an action by a deceased party must be dismissed if no motion for substitution is made within 90 days after service of a statement noting the death.

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

The people and their exposure

• Callen J. Cortez: mesothelioma

The defendants

• Lamorak Insurance Company (insurer)
• Trinity Industries, Inc.
• Continental Insurance Company (insurer)
• Liberty Mutual Insurance Company (insurer)
• Travelers Insurance Company (insurer)
• Albert L. Bossier, Jr.
• Huntington Ingalls, Inc. (Avondale) (employer)

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 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.
• 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 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.

Civil Action No. 20-2389.

May 19, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court are three motions seeking dismissal of the third-party claims of Albert L. Bossier, Jr. Specifically, on February 25, 2022, third-party defendant Trinity Industries, Inc. ("Trinity") filed a motion for summary judgment, seeking dismissal of Bossier's third-party claims, on the grounds of preemption under the Longshore and Harbor Workers' Compensation Act.[1] Plaintiff Callen Cortez opposes the motion.[2]

On April 12, 2022, third-party defendant Continental Insurance Company ("Continental"), as the alleged insurer of Halter Marine Services, Inc. ("Halter Marine") and certain of its executive officers, filed a motion to dismiss Bossier's third-party claims under Rule 25(a)(1) of the Federal Rules of Civil Procedure.[3] No party opposes this motion.

On April 27, 2022, defendants Liberty Mutual Insurance Company ("Liberty Mutual") and Travelers Insurance Company ("Travelers"), as the alleged insurers of B&B Engineering and Supply Company, Inc. ("B&B Engineering"), filed a motion to dismiss Bossier's third-party claims under Rule 25(a)(1) of the Federal Rules of Civil Procedure.[4] No party opposes this motion.

Because third-party claimant Albert L. Bossier, Jr. has died, and because more than ninety days have passed since service of his notice of his death, with no substitution of a successor or representative, the Court grants all three motions, and dismisses Bossier's third-party claims.

I. DISCUSSION

This is an asbestos exposure case. Plaintiff Callen Cortez alleges that he contracted mesothelioma as a result of exposure to asbestos during his employment with various companies.[5] Plaintiff was diagnosed with mesothelioma on June 2, 2020. [6] On July 1, 2020, plaintiff filed suit in the Civil District Court for the Parish of Orleans against approximately thirtyfive defendants, including former employers, manufacturers, premises owners, and insurance companies.[7] On August 31, 2020, the case was removed to federal court.[8]

On September 4, 2020, defendant Albert L. Bossier, Jr., sued by Cortez in his capacity as an officer of Huntington Ingalls, Inc. ("Avondale"), filed cross-claims against multiple codefendants, including Continental, as the alleged insurer of Halter Marine and certain executive officers, and Liberty Mutual and Travelers, as the alleged insurers of B&B Engineering.[9] On December 28, 2020, Bossier filed a supplemental third-party complaint against Trinity, as the alleged successor of Halter Marine.[10]

Albert L. Bossier, Jr. died on November 14, 2021.[11] On January 7, 2022, counsel for Bossier filed a suggestion of death into the record in this case.[12] All counsel of record in this case were electronically served with this notice of death. Under Rule 25(a)(1) of the Federal Rules of Civil Procedure, "[i]f a party dies, . . . [a] motion for substitution may be made by any party or by the decedent's successor or representative." Fed. R. Civ. P. 25(a)(1). It further provides that, "[i]f a 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." Id. (emphasis added).

More than ninety days have passed since service of Bossier's suggestion of death, and no motion for substitution has been made. Accordingly, pursuant to Rule 25(a)(1), the Court must dismiss Bossier's third-party claims. The three motions before the Court, which each seek dismissal of those claims, must therefore be granted.

III. CONCLUSION

Accordingly, the Court GRANTS: (1) Trinity's motion for summary judgment on Bossier's third-party claims;[13] (2) Continental's motion to dismiss Bossier's third-party claims;[14] and (3) Liberty Mutual and Travelers's motion to dismiss Bossier's third-party claims.[15] These claims are hereby DISMISSED with PREJUDICE.

[1] R. Doc. 430.

[2] R. Doc. 677.

[3] R. Doc. 905.

[4] R. Doc. 991.

[5] R. Doc. 1-1 (Complaint).

[6] Id. at 10 (Complaint ¶ 17).

[7] Id. at 1-3 ¶¶ 1-2; id. at 45-48.

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

[9] R. Doc. 17 at 19-22 (Cross-Claims of Albert L. Bossier, Jr.).

[10] R. Doc. 126 at 1 (Supplemental Third-Party Complaint of Albert L. Bossier, Jr.)

[11] R. Doc. 361 (Suggestion of Death).

[12] Id.

[13] R. Doc. 430.

[14] R. Doc. 905.

[15] R. Doc. 991.

Sources

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