Ragusa v. Louisiana Guaranty Insurance Association (E.D. La., Mar. 31, 2023)

Our plain-English summary of Ragusa v. Louisiana Guaranty Insurance Association (U.S. District Court, Eastern District of Louisiana, March 31, 2023).

Frank Ragusa, Jr. sued several companies after developing mesothelioma. He worked as a crane operator for B&G Crane Services from 1989 to 2017 at plants and refineries owned by the defendants. He alleged exposure to asbestos from friction materials in the cranes and from pipefitters and insulators working nearby. Twelve defendant premises owners moved for partial summary judgment, arguing only about the cranes. They said the cranes belonged to a third party and were run by his employer, so the owners did not have care, custody or control of them under former Louisiana Civil Code article 2317, which applied until 1996. The court agreed. Ragusa pointed to no evidence that the defendants required asbestos in the cranes or knew of its use. It granted the motion for exposures in 1996 or earlier. It denied the motion for later years because the defendants had not briefed the law governing those years or said when he worked at each facility. The court did not address his negligence claims.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Eastern District of Louisiana
• Decided: March 31, 2023
• Docket: Civil Action No. 21-1971
• Stage: Summary judgment
• State: Louisiana

Outcome. The court granted the premises-owner defendants' partial summary judgment on strict liability under former article 2317 for crane exposures in 1996 or earlier, and denied it for any later years; Ragusa lost on the earlier years.

What the court held. To hold a premises owner strictly liable under former Louisiana Civil Code article 2317, the plaintiff must show the owner had care, custody or control of the asbestos-containing thing. A third party's cranes operated by the plaintiff's employer on the owner's premises did not meet that test absent evidence the owner required or knew of asbestos use.

Issues decided: Premises Owner Liability.

The people and their exposure

• Frank P. Ragusa, Jr.: mesothelioma

The defendants

• Legacy Vulcan, LLC (premises owner)
• CF Industries Nitrogen, LLC (premises owner)
• The Dow Chemical Company (premises owner)
• Entergy Louisiana, LLC (premises owner)
• Exxon Mobil Corporation and ExxonMobil Oil Corporation (premises owner)
• Hexion, Inc. (premises owner)
• Marathon Petroleum Company, LP (premises owner)
• Murphy Oil, LLC (premises owner)
• Pharmacia LLC (premises owner)
• Rubicon, LLC (premises owner)
• Syngenta Crop Protection, LLC (premises owner)
• Union Carbide Corporation (premises owner)

Other decisions in this case

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

• Ragusa v. Louisiana Insurance Guaranty Association (March 7, 2022). The court denied plaintiff Frank Ragusa's motion for a preferential trial setting, ruling for defendant Huntington Ingalls because an expedited trial would not allow enough time for discovery and preparation.
• Ragusa v. Louisiana Guaranty Insurance Association (March 8, 2023). The court granted LIGA's summary judgment motion as to coverage of Avondale itself, because Avondale is a high net worth insured, and denied it without prejudice as to coverage of Avondale's executive officers.
• Ragusa v. Louisiana Guaranty Insurance Association (March 20, 2023). The court granted summary judgment to Avondale (Huntington Ingalls) and to Travelers as insurer of Avondale's alleged executive officers, dismissing Ragusa's negligence and intentional tort claims as barred by the LHWCA.
• Ragusa v. Louisiana Guaranty Insurance Association (March 22, 2023). The court granted Avondale's motion for partial summary judgment on strict liability, direct negligence and intentional tort claims for the 1989 exposures, and denied it on vicarious liability, so Ragusa lost on three theories and won on one.
• Ragusa v. Louisiana Guaranty Insurance Association (March 22, 2023). The court granted plaintiff Frank Ragusa Jr.'s motion for summary judgment that he has mesothelioma and that asbestos caused it, over opposition from Amdura, Syngenta, Rubicon and FMC.
• Ragusa v. Louisiana Guaranty Insurance Association (March 27, 2023). The court denied plaintiff Frank Ragusa's motion to remand the case to state court, keeping it in federal court against Avondale (Huntington Ingalls) and the other defendants.
• Ragusa v. Louisiana Guaranty Insurance Association (March 29, 2023). The court denied all nine summary judgment motions by premises owners and product companies, so Ragusa's asbestos claims against Pharmacia, Legacy Vulcan, Syngenta, Marathon, Murphy Oil, International Paper, Westinghouse and Riley Power continue.
• Ragusa v. Louisiana Guaranty Insurance Association (March 30, 2023). The court denied the defendants' Daubert motion to exclude plaintiff Frank Ragusa's experts Dr. Kraus and Dr. Landreneau, so plaintiff's specific-causation testimony on his mesothelioma may be presented at trial.
• Ragusa v. Louisiana Insurance Guaranty Association (October 8, 2024). The court granted the Louisiana Insurance Guaranty Association's motion for summary judgment and dismissed the Ragusa family's wrongful death claims as not timely "covered claims"; LIGA won and the plaintiffs lost on those claims.

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.

FRANK P. RAGUSA, JR.,

v.

LOUISIANA GUARANTY INSURANCE ASSOCIATION, ET AL., SECTION: "J"(5).

Civil Action No. 21-1971.

March 31, 2023.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

CARL J. BARBIER, District Judge.

Before the Court is a Joint Motion for Partial Summary Judgment on Alleged Exposure to Asbestos from Cranes (Rec. Doc. 340) filed by Defendants, Legacy Vulcan, LLC; CF Industries Nitrogen, LLC; The Dow Chemical Company; Entergy Louisiana, LLC; Exxon Mobil Corporation and ExxonMobil Oil Corporation; Hexion, Inc.; Marathon Petroleum Company, LP; Murphy Oil, LLC; Pharmacia LLC; Rubicon, LLC; Syngenta Crop Protection, LLC; and Union Carbide Corporation (the "Moving Defendants.") The motion is opposed by Plaintiff, Frank P. Ragusa (Rec. Doc. 454), and Defendants have replied. (Rec. Doc. 573). The Dow Chemical Company ("Dow") has also filed a separate reply (Rec. Doc. 575). Having considered the motion and legal memoranda, the record, and applicable law, the Court finds that the motion should be GRANTED in part and DENIED in part.

FACTS AND PROCEDURAL BACKGROUND

Relevant to the present motion, Plaintiff worked for non-party B&G Crane Services, LLC ("B&G") as a crane operator from 1989 to 2017. While working for B&G, Plaintiff worked in various plants and refineries, including those owned by the Defendants who have herein moved for summary judgment. Plaintiff was allegedly exposed to asbestos both from the friction materials in the cranes and from his work next to other crafts, including from pipefitters and insulators performing maintenance work in the plants. Later in life, he contracted mesothelioma. On July 16, 2021, Plaintiff filed suit in the Civil District Court for the Parish of Orleans, Louisiana, and on October 26, 2021, Defendants removed the case to this Court Defendants have moved for summary judgment only as it relates to his exposure from the cranes.

LEGAL STANDARD

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56); see Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, a court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be satisfied that "a reasonable jury could not return a verdict for the nonmoving party." Delta, 530 F.3d at 399.

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). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or "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 merely 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 trial. See id. at 325; Little, 37 F.3d at 1075.

DISCUSSION

Defendants have moved for summary judgment as to Plaintiff's claims regarding his alleged asbestos exposure from cranes owned by a third party and operated on Defendants' premises. Louisiana Civil Code article 2317, which was effect until 1996, provided strict liability for "things which we have in our custody" or garde. To establish strict liability under article 2317, plaintiffs must prove 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." Migliori v. Willows Apartments, 727 So.2d 1258, 1260 (La. App. 4 Cir. 1999). Non-owner defendants have custody over something if they exercise direction and control of the thing or derive some benefit from it. Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 565 (5th Cir. 2003). "In a strict liability determination, `defect' is an imperfection or deficiency which inheres with relative permanence in a thing as one of its qualities." Haydel v. Hercules Transport, Inc., 94-0016, 654 So.2d 408, 415 (La. App. 1 Cir. 1995).

Defendants argue that they cannot be held liable for Plaintiff's exposures caused by the cranes because Plaintiff cannot show that any of the cranes were in the care, custody, or control of any of the Moving Defendants. Defendants argue that any operation or maintenance of a crane would have occurred solely under the direction and control of Plaintiff's employer, B&G. In response, Plaintiff addressed each Moving Defendant separately, and testified that each of them dictated the work that was done on its premises and was responsible for safety on the job. (Rec. Doc. 454, at 4-7). However, even with this testimony, Plaintiff cannot establish that the Moving Defendants had the right of supervision, direction, and control, or the right to benefit from the asbestos-containing products.

Similar to a previous order issued in this case (Rec. Doc. 588), this Court finds Smith v. Union Carbide, 2014 WL 4930457, at [*7] (E.D. La. Oct. 1, 2014) to be instructive. In Smith, this Court held that premises owners could not be liable under article 2317 even though they specifically required contractors on their premises to use asbestos in installations that the plaintiff worked on. In this case, Plaintiff has not pointed to any evidence that Defendants required the use of asbestos in the cranes Plaintiff operated or even were aware of its use. Plaintiff cannot establish that any of the Moving Defendants had care, custody, or control over the asbestos in this case as is required by article 2317. Therefore, the motion is GRANTED as to Plaintiff's claims regarding premises owner strict liability.

Plaintiff dedicates a large portion of his opposition to addressing his negligence claims against the Moving Defendants. However, Defendants' Motion for Summary Judgment is solely dedicated to their potential liability as premises owners under article 2317 for the cranes Plaintiff operated while on their premises. Therefore, the Court will not address Plaintiff's claims for negligence at this time. Additionally, Defendants only refer to their potential liability under article 2317 which was in effect until 1996. In their motion, Defendants never specify what years Plaintiff worked at each of their facilities. Plaintiff's opposition states that he worked for B&G until 2017, but he also fails to specify the time periods at which he worked at the facilities of a majority of the Defendants herein. The Court will not grant summary judgment for unspecified years governed by law which the Defendants did not brief. Therefore, to the extent that Defendants' motion seeks summary judgment for any years after 1996, the motion is DENIED.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Defendants' Motion for Partial Summary Judgment on Alleged Exposure to Asbestos from Cranes (Rec. Doc. 340) is GRANTED as to any exposures which occurred in 1996 or prior and DENIED to the extent that the motion was intended to address exposures in any later years.

Sources

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