Kivell v. Union Carbide Corp. (In re Asbestos Litigation, 2017)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, August 30, 2017).

Sandra Kivell sued Union Carbide individually and as representative of the estate of her husband, Milton Kivell. She alleged he developed mesothelioma and died of it. From January 1967 to October 1969 he worked as a union pipefitter and welder during initial construction of Union Carbide's petrochemical plant in Taft, Louisiana. He was employed by outside contractors, not Union Carbide, and ran pipe while working beside insulators. Union Carbide moved for summary judgment. The plaintiff conceded it was not vicariously liable for the contractors' negligence. She relied on Louisiana cases holding that a premises owner can be directly liable to a contractor's workers. The court assumed Union Carbide owed a duty but found no evidence that it knew of asbestos risks, specified asbestos use, or that Mr. Kivell used asbestos products in the construction. On strict liability, there was no evidence Union Carbide had direction, control or ownership of any asbestos product he used. The court granted summary judgment on both 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: Delaware Superior Court
• Decided: August 30, 2017
• Stage: Summary judgment
• State: Delaware

Outcome. The Delaware Superior Court granted Union Carbide's motion for summary judgment on Sandra Kivell's negligence and strict liability claims, so Union Carbide won and the plaintiff lost.

What the court held. Under Louisiana law, a premises owner is not liable to a contractor's worker without evidence that it knew of the asbestos risks, specified asbestos use, or had custody or control of the asbestos product. Strict liability also requires custody of the thing that caused the harm.

Issues decided: Choice of Law, Wrongful Death and Survival, Design Defect, Premises Owner Liability.

The people and their exposure

• Milton J. Kivell: mesothelioma; died

Who	Work	Where	When	Products
Milton J. Kivell	union pipefitter and welder (refineries and petrochemical plants); worked near others using it	Union Carbide petrochemical facility, Taft, Taft, Louisiana	1967-1969

The defendants

• Union Carbide Corp. (premises owner)

Other decisions in this case

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

• In re Asbestos Litigation (May 9, 2006). The court denied DaimlerChrysler's motion in limine to exclude the plaintiffs' experts on general causation, so the plaintiffs' experts may testify that automotive friction products increase the risk of asbestosis, lung cancer and mesothelioma.
• Grenier v. General Motors Corp. (In re Asbestos Litigation) (April 8, 2009). On remand from the Delaware Supreme Court, the Superior Court concluded that, despite factual errors in its earlier opinion, it properly denied General Motors' and Ford's motion to exclude plaintiffs' general causation expert testimony, so Grenier's experts remained admissible.
• Freeman v. Georgia-Pacific (In re Asbestos Litigation) (January 13, 2011). The court denied Georgia-Pacific's motion for summary judgment because plaintiffs raised a genuine dispute of fact about whether Wilburn Freeman was exposed to Georgia-Pacific's asbestos-containing joint compound.
• Olson v. Crane Co. (In re Asbestos Litigation) (January 18, 2011). The Delaware Superior Court granted summary judgment to defendants Crane Co. and CBS Corp. (Westinghouse) against plaintiffs, holding Idaho law would not make them liable for other manufacturers' asbestos-containing parts.
• Cruz v. Georgia-Pacific (In re Asbestos Litigation) (January 19, 2011). The court granted Georgia-Pacific's motion for summary judgment, ruling that plaintiffs could not show under Texas law that exposure to its Ready Mix joint compound was a substantial factor in causing Cruz's mesothelioma.
• Ashworth v. Pneumo Abex (In re Asbestos Litigation) (February 14, 2011). The court granted Pneumo Abex's summary judgment motion on the survival action as time-barred, but denied it on the wrongful death claim, which was timely and had factual disputes on causation and product identification.
• James v. Albany Int'l (In re Asbestos Litigation) (February 16, 2011). The court granted Albany International's motion for summary judgment against plaintiff Charlene James because there was no non-speculative evidence that Robert James was exposed to an asbestos-containing Albany product.
• Newman v. Avocet Enterprises (In re Asbestos Litigation) (March 15, 2011). The court denied Avocet Enterprises' motion for summary judgment on the Newmans' remaining claims, because Newman's testimony about using Ventbestos raised a factual dispute on causation, and found the motion moot as to the withdrawn conspiracy claim.
• Henderson v. Dana Companies (In re Asbestos Litigation) (March 22, 2011). The court granted in part and denied in part the plaintiffs' post-trial motion for costs against Dana and Zoom, awarding $14,597.12 in costs plus pre- and post-judgment interest.
• Foucha v. CertainTeed Corp. (In re Asbestos Litigation) (May 31, 2011). The court granted CertainTeed Corp.'s motion for summary judgment, ruling against plaintiffs Raymond and Sussanah Foucha because they lacked evidence that he was exposed to an asbestos-containing CertainTeed product.
• Foucha v. Georgia-Pacific (In re Asbestos Litigation) (June 3, 2011). The court granted Georgia-Pacific's motion for summary judgment against Raymond and Sussanah Foucha because they could not show without speculation that Foucha was exposed to asbestos from Georgia-Pacific joint compound.
• Bowser v. Parker-Hannifin Corp. (In re Asbestos Litigation) (June 3, 2011). The court granted Parker-Hannifin's summary judgment motion in part (strict liability count and helicopter brake exposures before 1967) and denied it as to the airplane brake claims, so Plaintiff Jenny Bowser's remaining claims proceed.
• Davis v. Crane Co. (In re Asbestos Litigation) (June 7, 2011). The court granted Crane Co.'s motion for summary judgment against plaintiff Wesley Davis, finding he had not shown Crane-supplied asbestos products were a substantial factor in causing his mesothelioma.
• Clineff v. BP Amoco Chemical Co. (In re Asbestos Litigation) (July 8, 2011). The court granted summary judgment to BP Amoco Chemical Company, BP Corporation North America Inc., and Kvaerner U.S. Inc. because the plaintiffs' claims were filed after the two-year limitations period expired.
• Gordon v. Dana Companies (In re Asbestos Litigation) (November 16, 2011). The court granted summary judgment to Dana (Victor gaskets) and UOP, and denied summary judgment to Elliott, Armstrong and Born, so the plaintiffs' claims against those three go forward.
• McCoy v. PolyVision Corp. (In re Asbestos Litigation) (February 21, 2012). The court granted summary judgment to PolyVision Corp. against Janine and Marvin McCoy, predicting Pennsylvania law imposes no duty on an employer or premises owner to an employee's spouse for take-home asbestos exposure.
• Galliher v. R. T. Vanderbilt (In re Asbestos Litigation) (May 9, 2012). The court allowed plaintiff's late-disclosed geologist (Fitzgerald) to testify, excluded plaintiff's other late expert (Dr. Rigler), continued the trial to July 16, 2012 so defendant R. T. Vanderbilt could develop rebuttal evidence, and sanctioned defendant's out-of-state counsel $5000.
• Farrall v. Ford Motor Co. (In re Asbestos Litigation) (August 19, 2013). The court denied the plaintiff's motion for reargument, leaving in place its grant of summary judgment for Ford Motor Company on the failure to warn claim about asbestos-containing replacement parts.
• Muse v. Honeywell Int'l (In re Asbestos Litigation) (December 31, 2014). The court denied the plaintiffs' motion for reargument, leaving in place summary judgment for Honeywell International Inc. against James Muse and Clarice Roberts-Muse.
• Harris v. Deere & Co. (In re Asbestos Litigation) (May 10, 2017). The court granted Deere & Company's motion for summary judgment, ruling for Deere against the plaintiff, because under North Carolina law the plaintiff offered no evidence beyond speculation that the asbestos-containing parts he worked on were made or sold by Deere.
• Kivell v. Air Prods. and Chemicals (In re Asbestos Litigation) (August 30, 2017). The court granted Air Products and Chemicals Inc.'s motion for summary judgment on the negligence, strict liability and wrongful death claims, ruling against plaintiff Sandra Kivell.
• Kivell v. Murphy Oil USA (In re Asbestos Litigation) (August 30, 2017). The court granted Murphy Oil USA Inc.'s motion for summary judgment on the negligence and strict liability claims brought by Sandra Kivell, so the plaintiff lost.
• Walsh v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (October 27, 2017). The court granted summary judgment to Air & Liquid Systems Corp. (successor to Buffalo Pumps) against plaintiffs Phillip and Naomi Walsh, finding no evidence Mr. Walsh was exposed to asbestos parts the defendant was responsible for.
• Leathers v. Pneumo Abex (In re Asbestos Litigation) (November 8, 2017). The court denied Pneumo Abex LLC's motion for summary judgment, so plaintiff Raymond Leathers' claims against Abex go forward to trial.
• Walsh v. Aurora Pump Co. (In re Asbestos Litigation) (November 29, 2017). The court granted Aurora Pump Company's motion for summary judgment against Phillip and Naomi Walsh because they did not show that Mr. Walsh was exposed to asbestos from Aurora's products.
• Sykes v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (February 7, 2018). The Superior Court affirmed the Special Master's order excluding William Don Sykes's videotaped trial deposition at trial, a ruling for the defendants and against the plaintiff estate.
• Kivell v. Georgia Pacific Consumer Prods. LP (In re Asbestos Litigation) (March 26, 2018). The court granted Georgia Pacific's motion for judgment on the pleadings, holding that Sandra Kivell's wrongful death and survival claims were time barred under Louisiana's one-year limit.
• Richards v. Copes-Vulcan (In re Asbestos Litigation) (August 8, 2018). The court denied the Richards plaintiffs' motion for leave to supplement their expert's report and for reargument, leaving in place summary judgment for Copes-Vulcan, Fairbanks, Ford and Goodyear.
• Call v. Ford Motor Co. (In re Asbestos Litigation) (December 12, 2018). The court granted Ford Motor Company's motion for summary judgment against plaintiff Marilyn Kay Call, holding Indiana's "but for" causation standard applies and her expert's opinion did not meet it.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (January 31, 2019). The Delaware Superior Court denied Ford Motor Company's renewed motion for judgment as a matter of law, its alternative motion for a new trial, and its motion for a new trial or remittitur, leaving the plaintiff's jury verdict in place.
• Rowland v. Union Carbide Corp. (In re Asbestos Litigation) (April 24, 2019). The Delaware Superior Court granted Union Carbide's motion for summary judgment against Jane and Douglas Rowland because they could not show that the joint compound they used contained Union Carbide's asbestos.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (March 3, 2020). On remand from the Delaware Supreme Court, the Superior Court denied Ford Motor Company's motion for a new trial or remittitur, leaving the $40.625 million compensatory verdict for Paula Knecht in place.
• Petit v. Hennessy Indus. (In re Asbestos Litigation) (August 31, 2020). The Delaware Superior Court granted Hennessy Industries' motion for summary judgment against the Petit plaintiffs, because plaintiff did not show exposure to asbestos-containing brakes or to friable asbestos with the AMMCO machines.
• Pearsons v. Heidelberg USA (In re Asbestos Litigation) (December 23, 2020). The court denied Heidelberg USA's summary judgment motion on causation, statute of repose and product misuse, and granted it only on the willful and wanton conduct claim, which Mrs. Pearsons did not contest.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (April 11, 2023). The court denied Hennessy Industries' motion for reargument, so its earlier oral denial of summary judgment on the duty-to-warn claim stood and the plaintiff, Lisa Estrada, prevailed on this motion.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (April 25, 2023). The Superior Court denied defendant Hennessy Industries' request to certify an interlocutory appeal to the Delaware Supreme Court of the earlier denial of its summary judgment motion, so plaintiff Estrada prevailed on this request.
• Braxton v. J-M Mfg. Co. (In re Asbestos Litigation) (December 17, 2024). The court granted defendant J-M Manufacturing's motion for leave to designate responsible third parties, rejecting plaintiff Braxton's objections on pleading sufficiency, limitations timing and bankruptcy proofs of claim.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Thomas v. AP Green Industries, Inc. (Louisiana Court of Appeals, 4th Circuit, 2006). The appeals court amended the judgment to cut the surviving spouse's wrongful death award against Entergy Louisiana from $2.75 million to $1 million, and otherwise affirmed the jury verdict for the plaintiffs, including the directed verdict for McCarty and the jury's finding of no fault by Johns Manville.
• Jefferson v. Cooper/T. Smith Corp. (Louisiana Court of Appeals, 4th Circuit, 2003). The appeals court reversed the summary judgment that had dismissed the Dock Board from the plaintiffs' suit and remanded for further proceedings, ruling for the plaintiffs against the Dock Board; rehearing was denied.

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.

IN RE: ASBESTOS LITIGATION,

SANDRA KIVELL, individually and as Personal Representative of the Estate of MILTON J. KIVELL,

deceased, Plaintiff,

v.

UNION CARBIDE CORP. etal., Defendants.

C.A. No. N15C-07-093 ASB.

August 30, 2017.

Superior Court of Delaware.

Upon Defendant Union Carbide's Motion for Summary Judgment.

GRANTED.

ORDER

CALVIN L. SCOTT, Jr., Judge.

Plaintiff Sandra Kivell ("Plaintiff") cannot satisfy the summary judgment criteria.[1]

Plaintiff alleges that her husband, Milton Kivell ("Mr. Kivell") contracted mesothelioma which ultimately caused his death. Plaintiff alleges that Defendant Union Carbide ("Defendant") was the premises owner of a petrochemical facility in Taft, Louisiana where Mr. Kivell worked. Between January 1967 and October 1969 Mr. Kivell worked as a union pipefitter and welder. Defendant's Taft facility was a large industrial plant, and Mr. Kivell was involved in initial construction. Mr. Kivell did not work for Union Carbide directly, and he had no interaction with, and received no direction from Union Carbide personnel while at the Taft facility. Rather, he was employed by different third-party contractors, including Kiewitt Corporation and Stearns Roger Corporation. Union Carbide hired these third-party contractors to design and construct various process units. Mr. Kivell's duties included running pipe, and he stated that he worked "side-by-side" with insulators.

Defendants contend that Union Carbide never employed Mr. Kivell directly, and instead, he was employed by several different third-party engineering and construction firms. Defendant contends that these firms exercised exclusive control over Mr. Kivell's work area, and Mr. Kivell had no interaction with, and received no direction from Union Carbide personnel. Additionally, Defendant contends that these employers supplied their own tools and materials, and Union Carbide was not in custody or control of asbestos that Mr. Kivell was allegedly exposed to. Plaintiff argues that Mr. Kivel needed permission from Union Carbide staff before performing a "tie in" to an existing system,[2] and Mr. Kivell "performed a fair bit of maintenance at Union Carbide."

Plaintiff cites to Thomas v. A.P. Green Indus., Inc., a Louisiana case that dealt with a similar scenario to the case at bar.[3] In Thomas, the plaintiff's employer signed a contract with a company, ELI, to "design, engineer, and construct" two power generation facilities.[4] The plaintiff "never worked directly for ELI; rather, he worked for three other companies involved in the construction of the [generation] facilities."[5] Thus, ELI raised the independent contractor defense to plaintiff's claim. The court stated:

In resolving this issue, it is necessary to distinguish between the two ways in which a premises owner can be liable to employees of contractors who are injured while working on its premises: "(1) directly, for its own negligence; (2) vicariously, for the negligence of the independent contractor."[6]

Here, Plaintiff concedes that Defendant is not vicariously liable for the negligence of Mr. Kivell's employer. "Although the independent contractor defense is a bar to a vicarious liability claim, it is not a bar to direct liability claim arising out of a premises-owner's own negligence."[7] Generally, "a premises owner has a duty of exercising reasonable care for the safety of persons on its premises and a duty of not exposing such persons to unreasonable risks of injury or harm," and "[t]his duty

extends to employees of independent contractors for whose benefit the owner must take reasonable steps to ensure a safe working environment."[8] Plaintiff argues that because the Thomas court relied heavily on the development of the evidence at trial regarding ELI's breach of duty, summary judgment is inappropriate in Mr. Kivell's case. Additionally, Plaintiff cites to Smith v. Union Carbide Corp., a 2014 decision from the United States District Court for the Eastern District of Louisiana.[9] In Smith, Union Carbide argued that it was "entitled to summary judgment on [p]laintiff's survival and wrongful death claims because Union Carbide owed no duty to Mr. Smith. . . under Louisiana law, `no legal duty exists between a premises owner and the employee of a contractor, unless the premises owner exercised control over the work of the contractor'."[10] Citing Thomas, the court stated that the duty of reasonable care extends to employees of independent contractors, thus, it was clear that Union Carbide owed a duty to the plaintiff, and the "question then becomes whether [d]efendants are correct in arguing that there is insufficient evidence to prove any breach of duty."[11] The Smith court cited Jefferson v. Cooper/T Smith Corp., demonstrating that the Jefferson trial court was reversed where it granted summary judgment in favor of the premise owner when the "plaintiff presented a genuine issues of material fact as to whether the premises owner breached its independent duty to its contractor's workers on its premises."[12] In Jefferson, the plaintiff was a longshoreman along a river, and he loaded, unloaded, transported, and handled asbestos cargo on the owner's premises for independent companies on the premises.[13] The Smith court analyzed Jefferson and stated:

[T]he plaintiff presented no evidence showing that the premises owner ever handled, stored, or controlled the asbestos. Instead, the plaintiff provided evidence revealing that the workers on defendant's property were exposed to asbestos during their work, suggesting that the premises owner was aware of the risks that

asbestos posed, and indicating that the premises owner defendant had the authority to prevent asbestos-

containing products from entering the premises. The court concluded that although it was clear that the

defendant's contractors maintained control and custody of the asbestos at all times, plaintiff had presented a genuine issue of material fact precluding summary judgment as to "whether [defendant] knew or should have known of the dangers posed by asbestos at the time [the deceased worked on defendant's premises],

whether [defendant] knew or should have known that its facilities were inadequate for the handling and

storage of asbestos on or in its premises, and whether it could have refused such hazardous cargo."[14]

In light of the Thomas, Smith, and Jefferson cases, it seems that a key issue the court looks at in negligence actions against the premises owner under Louisiana law is whether genuine issues of material fact exist as to defendant's knowledge of the dangers posed by asbestos at the time plaintiff was employed on the premises. Plaintiff's case is distinguishable from Thomas, Smith, and Jefferson. First, Roach v. Air Liquide America, a United States District Court for the Western District of Louisiana held that the Smtih court expanded the general land owner duty to include that a land owner "had a duty to take reasonable steps to ensure a safe working environment for the employees of an independent contractor."[15] In Roach, the court held that Smtih was an "improper expansion of Louisiana law," and "there is a distinction between hazards that are inherent in a defendant's premises (for which a premises owner owes a duty) and hazards inherent in an independent contractor's job (for which a premises owner does not owe a duty)."[16] The Roach court pointed out that the hazard to the plaintiff in that case, silica, was "not inherent in defendant's premises; the airborne silica which was temporary in nature and transported to the facility by the plaintiff's employer and/or supplier. The hazard was inherent in the performance of the sandblasting."[17] Thus, the court found that the it was "employer's duty to ensure plaintiff's safety with respect to the specific hazards created by the performance of [plaintiff's] work."[18] Likewise, Plaintiff claims that her husband was exposed to asbestos from products used while employed by an independent contractor at Defendant's facility. Following the Roach decision, there is nothing in the facts for a jury to infer that asbestos was inherent in Defendant's premises. However, assuming that the Defendant owed Plaintiff a duty pursuant to Smith, Plaintiff has not presented evidence that Defendant in this case knew of the risks of asbestos, specified the use of asbestos in the construction, or that Mr. Kivell used asbestos products in the construction of the building. For example, in Thomas, the employer's "construction manager, testified that in early 1970s [the company] was constructing and engineering power plants on a world-wide basis and knew of the hazards of asbestos exposure," and there was evidence of contracts for asbestos containing products to be used on the premises.[19] Similarly, in Jefferson, the plaintiff unloaded, handled, and transported asbestos on the defendant's premises. Additionally, in Smith, the plaintiff presented evidence that he was exposed to asbestos while working on the defendant's premises. Here, Plaintiff has not presented any evidence to create a genuine issue of material fact that Defendant breached a duty owed to Mr. Kivell under Louisiana law. Therefore, Defendant Union Carbide's Motion for Summary Judgment on Plaintiff's negligence claim is granted.

Likewise, summary judgment on Plaintiff's strict liability claim is also granted. In Louisiana, to hold a defendant strictly liable, "the plaintiff must prove: (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 the defect." [20] Additionally, custody, "for the 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."[21] The "[m]ere physical presence of the thing on one's premises does not constitute custody."[22] Defendant is entitled to summary judgment on the strict liability claim as well because there is nothing in the record indicating that Defendant had any type of direction, control, or ownership of an asbestos product used by Plaintiff. Therefore, Defendant's Motion for Summary Judgment is GRANTED. IT IS SO ORDERED.

[1] Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 2013 WL 6920864, at [*3] (Del. Super. Dec. 30, 2013); see Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979); Nutt v. A.C. & S., Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986); In re Asbestos Litigation (Helm), 2012 WL 3264925 (Del. Aug. 13, 2012).

[2] Plaintiff did not offer a citation to the record for this proposition.

[3] 933 So.2d 843 (La.Ct.App. 2006).

[4] Id. at 848.

[5] Id.

[6] Id. at 852.

[7] Id.

[8] Id.

[9] 2014 WL 4930457 (E.D. La. Oct. 1, 2014).

[10] Id. at [*2].

[11] Id. at [*4].

[12] Id. at [*5]

[13] See Jefferson v. Cooper/T. Smith Corp., 858 So.2d 691, 695 (La.Ct.App. 2003).

[14] Smith, 2014 WL 4930457, at [*5] (citing Jefferson v. Cooper/T Smith Corp., 858 So.2d 691 (La.Ct.App. 2003)). [15] Roach v. Air Liquide America, 2016 WL 1453074, at [*4] (W.D. La. Apr. 11, 2016).

[16] Id.

[17] Id.

[18] Id.

[19] Thomas, 933 So.2d at 853.

[20] Migliori v. Willows Apartments, 727 So.2d 1258, 1260 (La.Ct.App. 1999)(citing Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990)).

[21] Haydel v. Hercules Transport, Inc., 654 So.2d 408, 414 (La.Ct.App. 1995).

[22] Id.

Sources

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