Cortez v. Lamorak Insurance Company (E.D. La., Oct. 7, 2022)

Our plain-English summary of Cortez v. Lamorak Insurance Company (U.S. District Court, Eastern District of Louisiana, October 7, 2022).

Callen Cortez was diagnosed with mesothelioma in June 2020 and died in May 2022. His widow and children sued a group of companies and insurers, alleging he was exposed to asbestos during his career and through take-home exposure from his father's and brothers' work when the family shared a home. The opinion gives no further detail on the work sites or products. Defendants asked for partial summary judgment on two items the family sought in the wrongful death claim: income two adult children lost while caring for their father before he died, and several thousand dollars the widow spent on a generator and hospital bed. The court granted the motion. Applying Louisiana Supreme Court decisions, it explained that a wrongful death action covers the family's own injuries from the moment of death onward, while a survival action covers harm to the victim before death. Pre-death lost wages and expenses therefore could not be recovered as wrongful death damages. The court did not decide whether they might be recovered in the survival action.

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: October 7, 2022
• Docket: Civil Action No. 20-2389
• Stage: Summary judgment
• State: Louisiana

Outcome. 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.

What the court held. Under Louisiana law, wrongful death damages compensate beneficiaries only for injuries suffered from the moment of the victim's death onward, so pre-death lost earnings and out-of-pocket expenses are not recoverable in the wrongful death action.

Issues decided: Compensatory Damages, Wrongful Death and Survival.

The people and their exposure

• Callen Cortez: mesothelioma; died

Who	Work	Where	When	Products
Callen Cortez	career work (not detailed)
Callen Cortez	family member sharing a home with father and brothers; dust brought home	Louisiana

The defendants

• Bayer CropScience, Inc.
• Union Carbide Corporation (manufacturer)
• Lamorak Insurance Company (insurer)
• Certain Underwriters at Lloyd's, London (insurer)
• Liberty Mutual Insurance Company (insurer)
• The Travelers Indemnity Company (insurer)
• United States Fidelity and Guaranty Company (insurer)
• Louisiana Insurance Guaranty Association (insurer)
• Huntington Ingalls Inc.
• Taylor Seidenbach, Inc.
• Anco Insulations, Inc.
• Hopeman Brothers
• Eagle Inc.
• Riley Power, Inc.

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 (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 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.

Amounts in the opinion

• $8,000 to $10,000 for a home generator and $10,000 for a hospital bed (other)

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.

October 7, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is defendants' motion for partial summary judgment on plaintiffs' wrongful death claims for loss of income and expenses.[1] Plaintiffs oppose the motion.[2]

For the following reasons, the Court grants defendants' motion.

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,[3] as well as take-home exposure resulting from his father's[4] and brothers' work when the family shared a home.[5]

Callen Cortez was diagnosed with mesothelioma on June 2, 2020, and he passed away on May 26, 2022.[6] Defendants are sued in the survival and wrongful death actions brought by Callen Cortez's surviving spouse and children.[7] Cortez's adult children, Kelsey Cortez and Callie Cortez Billiot, testified that they took time away from their jobs to care for their father when he was ill, and that they lost earnings as a result.[8] Cortez's widow, Mona Cortez, also testified that she spent several thousand dollars on a generator and hospital bed for Callen Cortez.[9]

Defendants now seek summary judgment on plaintiffs' wrongful death claims for loss of income and out-of-pocket funds expended for the care of Callen Cortez before his death.[10] Plaintiffs contend that defendants' motion exceeds the scope of the limited issue on which the Court allowed a motion, and that the contested recovery is supported by law.[11] 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

A. Loss of Income

Defendants assert that plaintiffs may not recover earnings foregone as a result of providing care to Callen Cortez before his death in a wrongful death action. "Although [wrongful death and survival] actions [usually] arise from a single tort, [the two] are separate and distinct." Taylor v. Giddens, 618 So.2d 834, 840 (La. 1993) (citing Guidry v. Theriot, 377 So.2d 319 (La. 1979)). A "survival action comes into existence simultaneously with the existence of the tort and is transmitted to beneficiaries upon the victim's death[.]" Id. Further, a survival action "permits recovery only for the damages suffered by the victim from the time of injury to the moment of death." Id.

A wrongful death action, on the other hand, "does not arise until the victim dies and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim's death and thereafter." Id.; see also Walls v. Am. Optical Corp., 740 So. 2d 1262, 1270 (La. 1999) ("the wrongful death action arises at the death of the victim, and compensates the beneficiaries for their injuries that occur at the moment of the victim's death and thereafter"). Wrongful death actions are brought pursuant to La. Civ. Code art. 2315.2. Article 2315.2 allows specific individuals to bring wrongful death actions, including "[t]he surviving spouse and child or children of the deceased[.]" Id. Article 2135(B) specifies that "[d]amages 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."

Because plaintiffs' wrongful death action arose at the time of Cortez's death, and the damages for such a claim are meant to compensate the family for harms suffered from the moment of death and thereafter, defendants are entitled to summary judgment on the issue of pre-death lost wages sought by plaintiffs. See Taylor v. Giddens, 618 So.2d 834, 840 (La. 1993) (holding that wrongful death damages compensate plaintiffs for injuries suffered from the moment of the victim's death and thereafter); see also Walls, 740 So. 2d 1270 (likewise); In re Brewer, 934 So. 2d 823, 827 (La. App. 1 Cir. 2006), writ denied sub nom., 936 So. 2d 1278 (La. 2006) ("The wrongful death action is intended to compensate the beneficiaries for compensable injuries suffered from the moment of death and thereafter."). Louisiana authorities establish and consistently re-affirm the nature of injury the wrongful death remedy addresses, i.e., the damages suffered by the covered class of victims from the death of their loved one. And, while Article 2315 generally provides for recovery when one suffers damages due to the fault of another, this broad provision does not override the above-cited authorities explaining the contours of wrongful death recovery.[12]

Plaintiffs rely on the Louisiana Second Circuit Court of Appeal's Keeth decision to contend that they are entitled to wrongful death damages for earnings foregone while providing care to Callen Cortez before his death. See Keeth v. State Through Dep't of Pub. Safety & Transp., 618 So. 2d 1154, 1163 (La. App. 2 Cir. 1993), writ dismissed sub nom., 619 So. 2d 563 (La. 1993) (stating that "[o]ne may recover lost earnings for attending to an injured spouse"). Significantly, Keeth was not a wrongful death case, and it did not recognize recovery by wrongful death plaintiffs for income foregone before the death of their loved one. Further, in Morgan v. Louis Cenac M.D., the Louisiana Fourth Circuit Court of Appeal held that a husband

could not recover damages when "he suffered a loss of earning capacity and early retirement because of his wife's personal injuries." 634 So. 2d 60, 63 (La. App. 4 Cir. 1994). Morgan arose in the same context as Keeth and explained that while the injured spouse could recover for the cost of services required by her injuries, her husband could recover only for the loss of his wife's services and support to the community—not loss of income and earning capacity he incurred because he gave up employment to care for her. The Court finds Morgan to be the better-reasoned decision.

Plaintiffs also cite Becnel v. Lamorak Insurance Company, No. 19-14536, 2022 WL 2182527, at [*5] (E.D. La. June 16, 2022), and Dempster v. Lamorak Insurance Company, No. 20-95, 2020 WL 3490431, at [*9] (E.D. La. June 26, 2020), in support of the proposition that plaintiffs are entitled to recover wages foregone in providing pre-death care to the decedent in a wrongful death action. Dempster is distinguishable because it did not hold that pre-death foregone income was recoverable as a wrongful death remedy. In that case, the court held that lost income of family caregivers was recoverable in the survival action as a measure of the value of care provided to the victim. 2020 WL 3490431, at [*9]. In Becnel, the court found there was no evidence that the survivors suffered lost income caring for the victim. 2022 WL 2182527, at [*5]. To the extent that Becnel indicated that survivors could recover pre-death loss of earnings as wrongful death damages, the Court declines to follow it. Accordingly, the Court grants summary judgment on the issue of plaintiffs' foregone earnings as wrongful death damages.

B. Pre-Death Expenses

Defendants also contend that plaintiffs are not entitled to recover pre-death expenses incurred as wrongful death damages. [13] Certain expenses are allowed as part of wrongful death damages. See, e.g., Smith v. Municipality of Ferriday, 922 So. 2d 1222, 1232 (La. App. 3 Cir. 2006), writ denied, 937 So. 2d 860 (La. 2006) ("Funeral expenses are one element of a wrongful death claim as are loss of love and affection, loss of services, and loss of support."). Plaintiffs point to Mona Cortez's testimony that she paid $8,000 to $10,000 for a home generator and $10,000 for a hospital bed, and assert that these expenses are recoverable as part of the wrongful death claim.[14] Medical expenses incurred by Mrs. Cortez in connection with the care of Callen Cortez when he was still alive are community expenses, which appear to be recoverable in the survival action. Further, plaintiffs do not contest that they lack evidence of other pre-death, out-of-pocket expenses that they assert are recoverable as wrongful death damages. The Court finds that defendants are entitled to summary judgment on these pre-death expenses to the extent they are sought as wrongful death damages.

The Court acknowledges that there is language in Hill v. Shelter Mutual Insurance Company, 935 So. 2d 691 (La. 2006), and Hebert v. Webre, 982 So. 2d 770 (La. 2008), that lists medical expenses as an element of wrongful death recovery. Both cases include the same quotation from a Louisiana intermediate appellate court decision regarding the elements of wrongful death damages. But neither case awards or even addresses the recovery of pre-death medical expenses in a wrongful death action. These cases involve whether the surviving beneficiaries' distress amounted to "bodily injury" under an insurance policy, and which aggregate coverage limit applied to the accident. The Court does not find that the mention of medical expenses in these cases undermines the distinction between survival and wrongful death actions drawn by the Louisiana Supreme Court.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS defendants' motion for partial summary judgment.

[1] R. Doc. 1114. Defendants' motion is filed by Bayer CropScience, Inc., and Union Carbide Corporation. Defendants joining in this motion are: Anco Insulations, Inc.; Cajun Company; Certain Underwriters at Lloyd's, London; CF Industries Nitrogen, LLC; Eagle Inc.; Goodrich Corporation; Hopeman Brothers; Liberty Mutual Insurance Company; Huntington Ingalls Inc.; Legacy Vulcan, LLC; Louisiana Insurance Guaranty Association; Pharmacia, LLC; Riley Power, Inc.; Taylor Seidenbach, Inc.; The Travelers Indemnity Company; Uniroyal Holding, Inc.; and United States Fidelity and Guaranty Company.

[2] R. Doc. 1127.

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

[4] Id. at 7-9 (Complaint ¶¶ 11-16).

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

[6] R. Doc. 1-1 at 10 (Complaint ¶ 17); R. Doc. 1026 at 2 (Fourth Amended Complaint ¶ 111).

[7] R. Doc. 1026 (Fourth Amended Complaint).

[8] R. Doc. 1127-3 at 14 (Deposition of Callie Cortez Billiot at 14:3-15); R. Doc. 1127-4 at 11 (Deposition of Kelsey Cortez at 11:3-8). [9] R. Doc. 1127-5 at 16-18 (Deposition of Mona Hotard Cortez at 25:10-27:10).

[10] R. Doc. 1114.

[11] R. Doc. 1127.

[12] The Court's decision today does not address the extent to which the damages plaintiffs seek may be recovered as part of the survival action.

[13] Plaintiffs assert that defendants' motion violates the Court's order reiterating that motion practice remains closed save for a motion on the limited issue of lost income as wrongful death damages. Because defendants' contentions on out-of-pocket expenses involve the same principle as lost income, and the issue is very similar to what was expressly permitted, the Court considers both aspects of defendants' motion.

[14] R. Doc. 1127-5 at 16-18 (Deposition of Mona Hotard Cortez at 25:10-27:10).

Sources

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