Cortez v. Lamorak Insurance Company (E.D. La., July 27, 2022)

Our plain-English summary of Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, July 27, 2022).

Callen Cortez, who has mesothelioma, and other plaintiffs sued Lamorak Insurance Company and other defendants in federal court in Louisiana. Goodrich Corporation moved for summary judgment on Mr. Cortez's claim for loss of consortium, and several co-defendants joined the motion. Plaintiffs answered that he was not claiming loss of consortium but loss of personal services he could have performed himself. The court agreed with Goodrich that an injured person cannot claim loss of consortium under Louisiana law, because that claim belongs to family members. It held, however, that Louisiana law lets an injured plaintiff recover the value of household services he can no longer perform because of his injury, even if the services were unpaid. Plaintiffs had offered evidence that he could no longer do yard work, wash cars or drive because of his mesothelioma, and an economist had valued the lost services. The court found a factual dispute and denied the motion. The opinion does not describe his 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, Eastern District of Louisiana
• Decided: July 27, 2022
• Docket: Civil Action No. 20-2389
• Stage: Summary judgment
• State: Louisiana

Outcome. 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.

What the court held. Under Louisiana law an injured plaintiff cannot claim loss of consortium, but he may recover damages for household services he can no longer perform himself because of his injury, even though the services are unpaid.

Issues decided: Loss of Consortium, Compensatory Damages.

The people and their exposure

• Callen Cortez: mesothelioma

The defendants

• Goodrich Corporation
• United States Fidelity and Guaranty Company (insurer)
• CF Industries Nitrogen, LLC
• BASF Corporation
• Anco Insulations, Inc.
• Lamorak Insurance Company (insurer)

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 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 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, ET AL.,

v.

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

Civil Action No. 20-2389.

July 27, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Defendant Goodrich Corporation ("Goodrich") moves for summary judgment on Callen Cortez's claim for loss of consortium. [1] Plaintiffs contend that Callen Cortez did not assert a claim for loss of consortium, but a separate claim for loss of personal services that he would have been able to perform himself if he had not been injured. Goodrich is correct that Callen Cortez may not assert a loss of consortium claim. See La. Civ. Code art. 2315(B) ("Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person."); see also Ferrell v. Fireman's Fund Ins. Co., 696 So. 2d 569, 574 (La. 1997) (holding that "loss of consortium is not an injury to the person who bore the direct impact of the defendant's negligence" (quoting Berger v. Weber, N.W.2d 424, 435 (Mich. 1981))); Brock v. Singleton, 65 So. 3d 649, 657 (La. App. 5 Cir. 2011), writ denied, 69 So. 3d 1160 (La. 2011) (loss of consortium "is due to family members of the injured party, not to the injured party").

But Louisiana law permits an injured plaintiff to recover for loss of household services as an element of damages. Bass v. State, 167 So. 3d 711, 721 (La. App. 1 Cir. 2014); Davis v. Foremost Dairies, 58 So. 3d 977, 994, (La. App. 2 Cir. 2011), writ denied, 62 So. 3d 97 (La. 2011) (affirming in part jury award of damages for loss of household services). "[T]he gratuitous nature of household services does not preclude the injured person from recovering the value of such services." Bass, 167 So. 3d at 721; see also Mims v. Reliance Ins. Co., 535 So. 2d 1085, 1090 (La. App. 2 Cir. 1988) ("[W]e do not find an employment relationship necessary for recovery of the value of the housekeeping services rendered to plaintiff in this case."). Recovery is allowed for household services the injured plaintiff can no longer perform himself because of his injury. Defendant's motion, which seeks to foreclose these damages as a matter of law, is legally wrong.

Further, plaintiffs presented evidence that Callen Cortez was no longer able to do yard work,[2] wash cars,[3] or drive because of his mesothelioma.[4] Plaintiffs have also pointed to evidence that their economic expert, Shael N. Wolfson, Ph.D., calculated a value for Callen Cortez's loss of personal services.[5] Plaintiffs have created an issue of material fact as to Callen Cortez's entitlement to damages for loss of personal household services.

For all of these reasons, Goodrich's motion for summary judgment is DENIED.

[1] R. Doc. 459. The motion is joined by United States Fidelity and Guaranty Company, CF Industries Nitrogen, LLC, BASF Corporation, and Anco Insulations, Inc. See R. Docs. 467, 488, 543 & 591.

[2] R. Doc. 659-4 at 2 (Discovery Deposition of Callen Cortez at 698:9-19).

[3] R. Doc. 659-5 at 3 (Deposition of Mona Cortez at 15:1-18).

[4] R. Doc. 659-4 at 2-3 (Discovery Deposition of Callen Cortez at 698:20-699:2).

[5] R. Doc. 659-8 at 9 (Expert Report of Shael N. Wolfson, Ph.D.).

Sources

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