Cortez v. Lamorak Insurance Company (E.D. La., July 28, 2022)

Our plain-English summary of Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, July 28, 2022).

Callen Cortez sued about thirty-five defendants, alleging he developed mesothelioma from asbestos exposure during his career and from take-home dust when he lived in the family home. He died in May 2022, and his wife and children replaced him as plaintiffs. This ruling concerned Travelers, the alleged insurer of B&B, an insulation contractor that employed his father, Calise Cortez, at Union Carbide's Taft, Louisiana facility from 1966 to 1968. Callen testified that his father came home with work clothes covered in asbestos dust. Travelers asked for summary judgment on four points. The court denied the motion on negligence, finding that a duty to household members could exist before 1972 and that there were factual disputes about breach. It also denied the motion on Louisiana Civil Code article 2317 custody liability. It granted the motion on whether B&B was a professional vendor, since there was no evidence B&B held the products out as its own or sold on a large scale, and so strict products liability did not apply.

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 28, 2022
• Docket: Civil Action No. 20-2389
• Stage: Summary judgment
• State: Louisiana

Outcome. 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.

What the court held. Under Louisiana law a duty to household members for take-home exposure can exist before 1972 without an OSHA rule, and Article 2317 custody can be shared. A seller is a professional vendor, liable like a manufacturer, only if it held the product out as its own and had sufficient size and volume of sales.

Issues decided: Causation, Wrongful Death and Survival, Design Defect, Employer and Contractor Liability, and Workers' Compensation, Insurance Coverage, Take-Home Exposure.

The people and their exposure

• Callen Cortez (family member): mesothelioma; died

Who	Work	Where	When	Products
Callen Cortez	child of an insulator (father Calise Cortez worked as insulator) (refineries and petrochemical plants); dust brought home	Union Carbide facility, Taft, Taft, Louisiana	1966-1968	pipe and block insulation, Kaylo (Johns-Manville), Unibestos, One Shot

The defendants

• The Travelers Indemnity Company (insurer)
• B&B Engineering and Supply Company of Louisiana, Inc. (contractor)
• Union Carbide (premises owner)

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 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 (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.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Rando v. Anco Insulations Inc. (Louisiana Supreme Court, 2009). The Louisiana Supreme Court affirmed the court of appeal's judgment for Ray Rando against his former employers JCI and Parsons, holding his tort suit was not barred by workers' compensation exclusivity or peremption and upholding liability and the $2.8 million general damages award.
• Halphen v. Johns-Manville Sales Corp. (Louisiana Supreme Court, 1986). Answering a question certified by the Fifth Circuit, the Louisiana Supreme Court held that a manufacturer may be held liable for an unreasonably dangerous per se or construction-defective product even if it could not have known of the danger, a result favoring the widow over Johns-Manville.
• Sutherland v. Alma Plantation, LLC (Louisiana Court of Appeals, 4th Circuit, 2016). The court of appeal reversed the trial court's partial summary judgment for Alma Plantation, L.L.C. on the issue of duty and remanded to the plaintiffs' benefit for further proceedings.
• Watts v. Georgia-Pacific Corp. (Louisiana Court of Appeals, 1st Circuit, 2013). The appeals court amended the judgment to cut the Watts' damages award against Hebert Brothers to one-half (its virile share, with Dow bearing the other half) and otherwise affirmed the jury's $3,625,000 survival award for the plaintiffs, rejecting Hebert Brothers' prescription and excessive-damages arguments.
• Chaisson v. Avondale Industries, Inc. (Louisiana Court of Appeals, 4th Circuit, 2006). The Louisiana Court of Appeal, Fourth Circuit, affirmed the jury judgment for the Chaisson family against H.B. Zachry Company, including its 42.58% fault share and the wrongful death and survival awards, and rejected both Zachry's appeal and the family's cross-appeal for higher survival damages.
• Zimko v. American Cyanamid (Louisiana Court of Appeals, 4th Circuit, 2005). The appeals court reversed the judgment against Tate & Lyle because workers' compensation exclusivity barred it, affirmed liability and the survival award against American Cyanamid, and cut the wrongful death award against American Cyanamid to 50% by allocating fault equally between the two companies.
• Hennegan v. Cooper/T. Smith Stevedoring Co. (Louisiana Court of Appeals, 4th Circuit, 2002). The Louisiana Court of Appeal affirmed the bench-trial judgment for Mary Hennegan and her late husband's estate against Garlock, Inc., which had to pay the damages less Cooper/T. Smith's 20 percent share.
• Hoerner v. Anco Insulations, Inc. (Louisiana Court of Appeals, 4th Circuit, 2002). The appeals court affirmed most of the jury verdict for the Hoerners but reversed liability for McCarty as employer of other insulators, for Mr. Schuber III, Mr. McCarty and Home Insurance, and four settling-defendant credits, and amended the judgment to $306,111.07.
• Abadie v. Metropolitan Life Ins. Co. (Louisiana Court of Appeals, 5th Circuit, 2001). The appeals court reversed the trial judge's JNOVs that had raised the seven plaintiffs' damage awards and reinstated the jury's awards, affirmed liability of Asbestos Corporation Limited and four Avondale safety officers (O'Donnell, Kennedy, Chantrey, Territo; not Chantrey as to Badeaux), reversed liability of two other officers (Kelmell, Roberts), and recalculated each judgment by virile shares, including the Johns-Manville trust and four of the settling manufacturers.

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 28, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is defendant The Travelers Indemnity Company's ("Travelers") motion for summary judgment, as the alleged insurer of B&B Engineering and Supply Company of Louisiana, Inc. ("B&B").[1] Travelers seeks to dismiss the claims of plaintiffs Callie Cortez Billiot, Kelsey J. Cortez, and Mona Hotard Cortez arising from decedent Callen Cortez's alleged "takehome" exposure to asbestos when his father, Calise Cortez, was employed by B&B.[2] Plaintiffs oppose the motion.[3] For the following reasons, the Court grants defendant's motion in part, and denies the motion in part. I. BACKGROUND

This is an asbestos exposure case. Plaintiffs allege that decedent Callen Cortez contracted mesothelioma as a result of exposure to asbestos over the course of his career,[4] as well as take-home exposure resulting from his father's[5] and brothers' work when the family shared a home.[6] Callen Cortez lived in his family home in Kraemer, Louisiana, starting from his birth in 1951, until he married and moved out in May of 1972.[7] Decedent's father, Calise Cortez, also lived in the home. Social Security records reflect that Calise Cortez began to work for B&B in 1966 and continued working there until 1968.[8] Callen Cortez testified that Calise Cortez worked as an insulator for B&B at Union Carbide's facility in Taft, Louisiana.[9] He also testified that when Calise Cortez came home at the end of the day, his work clothes were covered in asbestos dust.[10] On July 1, 2020, Callen Cortez sued Travelers and approximately thirty-four other defendants, including former employers, manufacturers, and insurance companies,[11] asserting liability, negligence, and intentional tort claims arising from his harmful exposure to asbestos.[12] Callen Cortez passed away on May 26, 2022.[13] Cortez's surviving spouse and children filed an amended complaint on June 6, 2022,[14] substituting themselves as plaintiffs in a survival action and seeking additional damages arising from Cortez's alleged wrongful death.[15]

Plaintiffs seek to hold Travelers, as insurer for B&B engineering at the time of the events giving rise to plaintiffs' claims, liable for Cortez's exposure to asbestos from his father's employment.[16] Travelers moves for summary judgment, seeking dismissal of these claims.

The Court considers the parties' arguments below.

II. LEGAL STANDARD

Summary judgment is warranted when "the movant shows that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). "When assessing whether a dispute to any material fact exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins., 530

F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth `ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. "No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would `entitle it to a directed verdict if the evidence went uncontroverted at trial.'" Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). "[T]he nonmoving party can defeat the motion" by either countering with evidence sufficient to demonstrate the "existence of a genuine dispute of material fact," or by "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265. If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for resolution. See, e.g., id.; Little, 37 F.3d at 1075 ("Rule 56 `mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" (quoting Celotex, 477 U.S. at 322)). III. DISCUSSION

Travelers raises four arguments in support of summary judgment, which the Court address below.

A. Whether B&B Was Negligent

Travelers first asserts that B&B is not liable for negligence because it owed no duty of care to Callen Cortez, and even if it did, plaintiffs have not provided evidence that B&B breached that duty.[17] As to the existence of a duty, Travelers asserts that because the U.S. Occupational Safety and Health Administration ("OSHA") did not promulgate standards concerning potential asbestos exposures to household members until 1972, it owed no legal duty to the families of its employees for pre-1972 exposures.[18]

Louisiana courts employ "a duty-risk analysis to determine whether [negligence] liability exists under the particular facts presented." Posecai v. Wal-Mart Stores, Inc., 752 So. 2d 762, 765 (La. 1999). "Under this analysis the plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached." Id. At issue here are the second and third elemts: whether B&B owed a duty of care to Callen Cortez and whether B&B breached that duty.

"Under Louisiana law, the existence of a duty presents a question of law that `varies depending on the facts, circumstances, and context of each case and is limited by the particular risk, harm, and plaintiff involved.'" Bursztajn v. United States, 367 F.3d 485, 489 (5th Cir. 2004) (quoting Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 157 (5th Cir.1994)). There is a "universal duty on the part of the defendant in negligence cases to use reasonable care so as to avoid injury to another." Boykin v. La. Transit Co., 707 So.2d 1225, 1231 (La. 1998). In determining whether specific duties of care exist, "[t]he role of the court is to determine whether any jurisprudential or statutory rule exists, or any policy reason why, under the facts and circumstances of the case, the [defendant] would owe a duty to compensate the plaintiff for his injuries." Bridgewater v. New Orleans Reg'l Transit Auth., 190 So. 3d 408, 415 (La. App. 4 Cir. 2016), writ denied, 191 So. 3d 1071 (La. 2016) (citing Cormier v. T.H.E. Ins. Co., 745 So. 2d 1, 8 (La. 1999)).

Travelers' argument—that B&B did not owe Callen Cortez a duty of care because OSHA did not promulgate standards concerning potential takehome exposures until 1972—erroneously assumes that violation of a statutory or regulatory duty is

a requisite element of negligence. On the contrary, a duty of care may arise regardless of the existence, vel non, of applicable regulations. Id.; see also Posecai, 752 So. 2d at 766 ("In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented."). Nonetheless, plaintiffs do point to applicable regulations concerning potential take-home exposure that predate the 1972 OSHA rule. As noted by the court in Catania v. Anco Insulations, Inc., "the [1951] Walsh-Healey Act addressed the hazards of asbestos and required that employers provide a change of clothing to employees to prevent them from carrying asbestos home." No. 05-1418, 2009 WL 3855468, at [*2] (M.D. La. Nov. 17, 2009). Further, the Supreme Court of Louisiana has recognized that the Walsh-Healey Act reflected "a level of knowledge that pervaded the industry and exhibited a growing understanding and awareness of a serious problem regarding asbestos." Rando v. Anco Insulations Inc., 16 So. 3d 1065, 1087 (La. 2009). In addition, plaintiffs' industrial hygiene expert, Gerard Baril, cited Louisiana Sanitary Code Industrial Health Regulations from as early as 1943, which identified asbestos as a potentially dangerous substance and required employers to implement protective measures to prevent harmful materials from being carried home on workers' clothes.[19] Furthermore, Louisiana case law has recognized the existence of a duty in the paraoccupational context for pre-1972 exposures. See Zimko v. Am. Cyanamid, 905 So. 2d 465, 483-84 (La. App. 4 Cir. 2005), writ denied, 925 So. 2d 538 (La. 2006) (finding a pre-1972 duty owed by employer to take-homeexposure plaintiff); c.f. Sutherland v. Alma Plantation, L.L.C., 193 So. 3d 1178, 1184 (La. App. 4 Cir. 2016), writ denied, 206 So. 3d 208 (La. 2016) (reversing summary judgment and holding "that a trial on the merits is necessary and would assist in determining whether [defendant] owed [a take-home-exposure plaintiff] a duty" when the exposures occurred before 1972). Plaintiffs' evidence of pre-1972 regulatory pronouncements and case law holding that there is a duty in this context require the denial of summary judgment on the duty issue.

Defendant's reliance on Chaisson v. Avondale Industries, Inc. does not alter this conclusion. 947 So. 2d 171 (La. App. 4 Cir. 2006), writ denied, 954 So. 2d 145 (La. 2007). Chaisson did not hold that employers owe no duty to household members for pre-1972 exposures. It merely distinguished a Texas take-home-exposure case that found that employers owed no duty to the family members of employees for pre-1972 exposures. Id. at 182-83. Indeed, Chaisson held only that the defendant owed the take-home-exposure plaintiff a duty for post-1972 exposures. Id.

Additionally, there is a material factual dispute as to whether B&B breached a duty of care it owed Callen Cortez. Russel Kraemer, a former B&B employee, testified that B&B provided the insulation for the Union Carbide job.[20] Likewise, Wayne Coates, a former B&B insulator, testified that asbestos insulation products were used at the Union Carbide job.[21] Plaintiffs' expert, Gerard Baril, reviewed the testimony of individuals who worked at Union Carbide during the relevant time period and observed that the workers identified the use of asbestos insulation, lack of precautionary measures, and zero separation of the trades or isolation of the insulation work.[22] Similarly, Baril opined that B&B failed to provide its workers with separate lockers for street clothes and work clothes, did not require workers to remove dirty work clothes and shower, and provided no asbestos health hazard warning information.[23] And Callen Cortez testified that his father Calise Cortez came home from his job at B&B covered in asbestos dust.[24] Plaintiffs' evidence creates a triable issue of fact on whether B&B breached a duty of care it owed Callen Cortez. Summary judgment is denied on the issue of B&B's negligence.

B. Whether B&B Was a Professional Vendor of Asbestos

Travelers also contends that summary judgment is warranted on the issue of whether B&B was a "professional vendor" of asbestos, and thus subject to strict liability as a manufacturer.[25] It asserts that plaintiffs have not produced evidence creating an issue of material fact on the "professional vendor" question.

Under Louisiana law, a "professional vendor" is held to the same standard of liability as a manufacturer. Chappuis v. Sears Roebuck & Co., 358 So. 2d 926, 930 (La. 1978). In order to be held liable as a professional vendor, a seller must: (1) hold a "product out to the public as its own" and (2) operate with the requisite "size, volume, and merchandising practices," such that the firm is presumed to know the defects of its wares. Id. Hence, "a professional vendor is a retailer who does more than simply sell a certain product or products; it must engage in practices whereby it is capable of controlling the quality of the product, such that the courts are justified in treating the retailer like a manufacturer." Nelton v. Astro-Lounger Mfg. Co., 542 So. 2d 128, 132 (La. App. 1 Cir. 1989). Because of the scale and merchandising requirements necessary for a finding that a firm is a professional vendor, a seller does not become a professional vendor just because it sells a product. Id. ("[W]e reject plaintiff's contention that Fraenkel is a professional vendor simply because it is in the business of selling sofa beds.").

Plaintiffs' strict products liability claims against Travelers are predicated on B&B's asserted status as a professional vendor of asbestos insulation. To support their contentions, plaintiffs point to the testimony of Russel Kraemer, a former B&B employee who testified that B&B provided the insulation for the Union Carbide job.[26] Plaintiffs assert that this testimony, plus testimony that the Union-Carbide job involved over 1,500 insulators[27] and that B&B had offices in three different states,[28] are sufficient to create a material issue of fact as to whether B&B was a professional vendor of asbestos. The Court finds that plaintiffs' evidence is insufficient to create a material fact question on the professional vendor issue. Even if B&B provided the asbestos material on the Union Carbide job, there is no evidence that it held the product out as its own. Indeed, the evidence suggests the opposite. Witnesses identified the asbestos used at Union Carbide by the brand names used by the manufacturer. The products they identified, included Kaylo by Johns-Manville, Unibestos, and One Shot. [29] No witness identified B&B with the asbestos products they used. Further, the asbestos material arrived by train.[30] There is no evidence of re-packaging by BB or of advertising or merchandising practices suggesting that BB held out the brand name products of others as its own. The absence of this type of evidence is significant. See Hoerner v. ANCO Insulations, Inc., 812 So. 2d 45, 60-61 (La. App. 4 Cir. 2002), writ denied, 819 So. 2d 1023 (La. 2002) (relying significantly upon evidence that the suppliers re-packaged the asbestos insulation in boxes containing the suppliers' respective names to support a finding that defendants were professional vendors).

Furthermore, plaintiffs have not produced evidence that B&B sold asbestos material on the scale necessary to be deemed a professional vendor. Plaintiffs' evidence does not even indicate whether B&B sold the asbestos used on other jobs or whether it was supplied by the owner of the project. And plaintiff offers no evidence for the exposure period of the volume of sales of asbestos products by B&B Engineering and Supply Company of Louisiana, Inc., the entity it sued. Additionally, while plaintiffs point to testimony that B&B had other offices, the witness identified three offices open at one time or another during his 30-plus years with B&B and did not state they were all extant at the time of the take-home exposure at issue[31] Further, he said that the Baton Rouge office was a subsidiary company.[32] It is not clear that the other offices were part of the same corporation or were different corporate entities. Plaintiffs' evidence is simply too sheer to create an issue of fact on the professional vendor issue. Accordingly, the Court grants summary judgment on the issue of whether B&B was a professional vendor of asbestos.

C. Liability Under Article 2317

Travelers also moves for summary judgment on the grounds that Louisiana Civil Code article 2317 is inapplicable to this case because plaintiffs have not produced evidence that asbestos was in the care, custody, or control of B&B.[33] Louisiana Civil Code article 2317 provides that "[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of things which we have in our custody." At the time of the exposure at issue, article 2317 "was a basis for the imposition of strict liability on the owner or custodian of an object that causes an injury." Venezia v. ConocoPhillips Co., No. 12-2168, 2014 WL 107962, at [*10] (E.D. La. Jan. 9, 2014). "To establish strict liability under article 2317, a plaintiff must show that: `(1) the thing which caused the damage was in the care, custody and control of the defendant; (2) the thing had a vice or defect which created an unreasonable risk of harm; and (3) the injuries were caused by this defect.'" Smith v. Union Carbide Corp., No. 13-6323, 2014 WL 4930457, at [*6] (E.D. La. Oct. 1, 2014) (quoting Migliori v. Willows Apartments, 727 So.2d 1258, 1260 (La. App. 4 Cir. 1999). "`Custody,' for purposes of strict liability, does not depend upon ownership, but involves the right of supervision, direction, and control as well as the right to benefit from the thing controlled." Id. (quoting Haydel v. Hercules Transp., Inc., 654 So. 2d 408, 415 (La. App. 1 Cir. 1995), writ denied, 656 So. 2d 1018 (La. 1995)). "More than one party may have custody and control or garde under [article 2317]." Ehrman v. Holiday Inns, Inc., 653 So. 2d 732, 738 (La. App. 4 Cir. 1995), writ denied, 655 So. 2d 343 (La. 1995).

Here, plaintiffs have created triable issues of fact as to whether Travelers is liable under article 2317. The evidence shows that B&B had contracted to install insulation at Union Carbide and employed insulators like Calise Cortez to do the insulation work with the asbestos products it supplied. Plaintiffs point to the deposition of Russel Kramer, who testified that B&B supplied the asbestos insulation used by employees performing insulation work at the Union Carbide job.[34] Likewise, plaintiffs offer the deposition testimony of Wayne Coates, a former B&B insulator, who testified that B&B employees used asbestos products at the Union Carbide job.[35] Further, Callen Cortez recalled that Calise Cortez regularly came home from

his job at B&B covered in asbestos dust.[36] Evidence that B&B, as the insulation contractor, provided the asbestos materials for employees to use on the job is sufficient to create an issue of material fact as to whether the asbestos insulation was in the control and under the supervision of B&B. Further, because the insulation B&B supplied and directed employees to utilize was in furtherance of a contract, there is evidence that B&B derived a benefit from the asbestos. Indeed, in a factually similar case involving a plaintiff's exposure to asbestos while performing insulation work on the defendants' premises, Judge Carl L. Barbier, found that it was the contractors and insulators, such as B&B, and not premises owners, who had custody of asbestos insulation for the purposes of article 2317. Smith, 2014 WL 4930457, at [*6]. As to the second element, there "is really no dispute. . . that asbestos is a substance that creates an unreasonable risk of harm when inhaled." Watts v. Georgia-Pac. Corp., 135 So. 3d 53, 60 (La. App. 1 Cir. 2013), writ denied, 131 So. 3d 59 (La. 2014). And on causation, plaintiffs' medical expert, Dr. Stephen Kraus, testified that Cortez's exposures from his father's employment at B&B were a significant contributing factor in the development of Cortez's mesothelioma.[37] Defendant contends that B&B did not have custody or control over the insulation used, citing case law holding that "an owner of a thing who transfers its possession, but not its ownership to another, continues to have the garde of its structure and is obliged to protect others from damage caused by structural defects arising before the transfer." Ross v. La Coste de Monterville, 502 So. 2d 1026, 1032 (La. 1987). Travelers does not explain how Ross would relieve B&B of liability here. Further, the concept of garde does not preclude multiple parties from having custody and control of an object. Ehrman, 653 So. 2d at 738. For the purposes of article 2317, garde merely requires that a party have the right of direction and control over a thing and derive a benefit from it. Doughty v. Insured Lloyds Ins. Co., 576 So. 2d 461, 464 (La. 1991). Even if Union Carbide also had garde of the asbestos insulation, plaintiffs have created a material factual dispute as to whether the asbestos insulation was in the custody or control of B&B, who derived a benefit from the insulation. Accordingly, summary judgment is denied on the issue of article 2317 liability.

D. Applicability of Halphen

Travelers' final contention is that Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110 (La. 1986), and its strict products liability theory are inapplicable here because Halphen was decided in 1986, after the decedent's exposure to asbestos from 1966 until 1968 while working for B&B.[38]

To be sure, the substantive law that governs plaintiffs' claims is the law in effect when the alleged exposure occurred. Rando, 16 So. 3d at 1072. But courts are in agreement that "the Louisiana Supreme Court did not create new substantive law in Halphen." Abadie v. Metro. Life Ins. Co., 784 So. 2d 46, 78 (La. App. 5 Cir. 2001), writ denied, 804 So. 2d 642 (La. 2001). Indeed, "Judge Dennis, the author of Halphen, wrote in Hulin v. Fibreboard Corp., 178 F.3d 316, 334 (5th Cir.1999), that the Louisiana Supreme Court did not create new substantive law in Halphen, but merely compiled and interpreted the law with regard to products liability in Louisiana at that time." Adams v. Owens-Corning Fiberglas Corp., 923 So. 2d 118, 123 (La. App. 1 Cir. 2005), writ denied, 925 So. 2d 519 (La. 2005). See Hulin, 178 F.3d at 327 (Dennis, J.) (characterizing Halphen as simply applying "Civil Code principles and prior jurisprudential interpretations of those principles by analogy to a products liability issue that had not been foreseen by the Code."). For this reason, Halphen can be applied to actions accruing before the decision was published. Id. Further, Louisiana state and federal courts have routinely applied Halphen to cases accruing before the decision was decided. See, e.g., Toups v. Sears, Roebuck & Co., 507 So. 2d 809, 815-16 (La. 1987) (applying Halphen to an accident that occurred in 1977); Bloxom v. Bloxom, 512 So. 2d 839, 843 (La. 1987) (applying Halphen to an accident that occurred in 1982); Hines v. Remington Arms Co., 648 So. 2d 331, 334 (La. 1994) (applying Halphen to an accident that occurred in 1984); Hennegan v. Cooper/T. Smith Stevedoring Co., 837 So. 2d 96, 102 (La. App. 4 Cir. 2002), writ denied, 841 So. 2d 794 (La. 2003) (applying Halphen's unreasonably dangerous per se theory to asbestos exposures from the 1960s); Hulin v. Fibreboard Corp., 178 F.3d 316, 334 (5th Cir.1999) (applying retroactively). Travelers' temporal argument about the applicability of Halphen is wrong as a matter of law.

Nevertheless, Halphen strict products liability is inapplicable here for another reason. Halphen-era law applied strict products liability to manufacturers and certain suppliers that can be held liable as manufacturers. Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110, 113-15 (La. 1986); see also Rowell v. Carter Mobile Homes, Inc., 500 So. 2d 748, 752 (La. 1987) (specifying which suppliers, including professional vendors, may be held liable under a strict products liability theory). The Court has held that B&B was not a professional vendor, which is the basis upon which plaintiffs asserted that B&B could be held liable as a manufacturer. Accordingly, strict products liability is inapplicable here.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Travelers' motion for summary judgment.[39] The Court grants the motion as to whether B&B was a professional vendor of asbestos insulation. The Court denies the motion as to all other issues.

[1] R. Doc. 502. Liberty Mutual Insurance Company ("Liberty") originally joined in the motion, but the claims against Liberty as alleged insurer of B&B have been dismissed.

[2] Id.

[3] R. Doc. 684.

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

[5] Id. at 7-9 (Complaint ¶¶ 11-16).

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

[7] R. Doc. 499-4 at 17-18 (Discovery Deposition of Callen Cortez at 100:11-101:8).

[8] R. Doc. 684-3 at 4.

[9] R. Doc. 684-5 at 2-3, 5 (Discovery Deposition of Callen Cortez at 212:25-213:18, 360:8-15).

[10] Id. at 10 (Discovery Deposition of Callen Cortez at 776:11-20).

[11] R. Doc. 1-1 at 1-3 (Complaint ¶¶ 1-2); id. at 45-48.

[12] R. Doc. 1-1.

[13] R. Doc. 1026 at 2 (Fourth Amended Complaint ¶ 111).

[14] Id.

[15] Id. at 2-3 (Fourth Amended Complaint ¶¶ 111-114).

[16] R. Doc. 1-1 at 3-6 (Complaint ¶¶ 32-35); see also R. Doc. 648 at 3-7.

[17] R. Doc. 502-1 at 11.

[18] Id.

[19] R. Doc. 684-12 at 9 (Declaration of Gerard Baril); R. Doc. 684-13 at 5, 9 (Louisiana Sanitary Code — Industrial Health Regulations). [20] R. Doc. 684-8 at 5-6 (Deposition of Russell Kramer at 81:20-22, 84:3-5).

[21] R. Doc. 684-9 at 4 (Deposition of Wayne Coates at 54:10-21).

[22] R. Doc. 684-12 at 18-19 (Declaration of Gerard Baril).

[23] Id. at 19-20.

[24] R. Doc. 684-5 at 10 (Discovery Deposition of Callen Cortez at 776:11-20).

[25] R. Doc. 502-1 at 17.

[26] R. Doc. 684-8 at 5-6 (Deposition of Russell Kramer at 81:20-22, 84:3-5).

[27] R. Doc. 684-9 at 6-7 (Deposition of Wayne Coates at 56:24-57:5).

[28] R. Doc. 684-20 at 3 (Deposition of Lionel Dubea at 30:9-15).

[29] R. Doc. 684-9 at 4 (Deposition of Wayne Coates at 54:10-21).

[30] R. Doc. 684-8 at 5-6 (Deposition of Russell Kramer at 81:15-19).

[31] R. Doc. 684-20 at 2-3 (Deposition of Lionel Dubea at 17:4-5, 30:9-15).

[32] Id. (Deposition of Lionel Dubea at 30:9-15)

[33] R. Doc. 502-1 at 18.

[34] R. Doc. 684-8 at 5-6 (Deposition of Russell Kramer at 81:20-22, 84:3-5).

[35] R. Doc. 684-9 at 4 (Deposition of Wayne Coates at 54:10-21).

[36] R. Doc. 684-5 at 10 (Discovery Deposition of Callen Cortez at 776:11-20).

[37] R. Doc. 684-14 at 8-9 (Declaration of Stephen Terry Kraus, M.D.).

[38] R. Doc. 502-1 at 19.

[39] R. Doc. 502.

Sources

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