Reulet v. Lamorak Ins. Co. (M.D. La., Oct. 24, 2022)

Our plain-English summary of Reulet v. Lamorak Ins. Co. (U.S. District Court, Middle District of Louisiana, October 24, 2022).

The family of Kirk Reulet sued dozens of defendants in a wrongful death and survival action after he died in January 2019 of mesothelioma. They allege he was exposed to asbestos during a career in marine-economy trades from 1972 to 2013. This ruling concerned Aerojet Rocketdyne, which plaintiffs say is the successor to Barnard and Burk (B&B), a contractor that employed Reulet as a carpenter in 1974 for maintenance work at CF Industries. Avondale and its former executive Albert Bossier filed cross-claims against Aerojet. Aerojet moved for summary judgment, arguing there was no proof of exposure at B&B and that it was not B&B's legal successor. The court denied the motion. A friend, Charles Becnel, testified that he and Reulet worked side by side on a 1974 plant shutdown, where Reulet built scaffolding near insulation being torn off steam lines and breathed asbestos dust. The court found his testimony created a fact dispute and said credibility is for the jury. It also found that Aerojet's 1981 purchase agreement expressly assumed B&B's litigation liabilities.

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, Middle District of Louisiana
• Decided: October 24, 2022
• Docket: Civil Action No. 20-00404-BAJ-EWD
• Stage: Summary judgment
• State: Louisiana

Outcome. The district court denied Aerojet Rocketdyne's motion for summary judgment, finding fact disputes on whether the decedent was exposed to asbestos at Barnard and Burk and whether Aerojet inherited its liabilities, so plaintiffs and Avondale prevailed on the motion.

What the court held. Plaintiffs need only show a reasonable jury could find it more likely than not that the decedent inhaled the defendant's asbestos fibers, even from slight exposures; credibility determinations are not made at summary judgment. A purchase agreement expressly assuming the predecessor's litigation liabilities can make the buyer a successor to those liabilities.

Issues decided: Wrongful Death and Survival, Employer and Contractor Liability, and Workers' Compensation, Product Identification, Successor Liability.

The people and their exposure

• Kirk Reulet: mesothelioma; died

The defendants

• Aerojet Rocketdyne, Inc. (employer)
• Barnard and Burk, Inc. (contractor)
• CF Industries, Inc. (premises owner)
• Huntington Ingalls Incorporated (Avondale) (employer)
• Albert Bossier, Jr.
• Lamorak Ins. Co. (insurer)

Other decisions in this case

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

• Reulet v. Lamorak Ins. Co. (October 19, 2022). The court granted in part the motion by insurers Wausau and Liberty and stayed the plaintiffs' direct action claims against them pending the Reilly-Benton bankruptcy; the claims were not dismissed.
• Reulet v. Lamorak Ins. Co. (October 21, 2022). The court granted the plaintiffs' motion for partial summary judgment, finding no genuine dispute that Kirk Reulet had mesothelioma and that it resulted in his death, over the opposition of Bayer CropScience, Hopeman Brothers and Liberty Mutual.
• Reulet v. Lamorak Ins. Co. (October 21, 2022). The court denied American Insurance Company's motion for summary judgment on coverage, so the plaintiffs prevailed, and ordered American's counsel to show cause why sanctions should not be imposed.
• Reulet v. Lamorak Ins. Co. (October 31, 2022). The court denied the summary judgment motions of General Electric and ViacomCBS/Westinghouse, so the plaintiffs' claims against the two turbine manufacturers go forward.
• Reulet v. Lamorak Ins. Co. (October 31, 2022). The court granted in part and denied in part Berkshire's summary judgment motion: claims tied to the second policy period and to the father's second-hand exposure were dismissed with prejudice, while the claim of direct exposure during the first policy period survived for Plaintiffs and Avondale.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Williams v. Boeing Company (U.S. Court of Appeals, Fifth Circuit, 2022). The Fifth Circuit reversed summary judgment for Boeing on the survival action and remanded, directed the district court to reconsider the plaintiffs' request for more discovery, and affirmed dismissal of the wrongful death claims as time-barred.

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.

JOANNE REULET, ET AL.,

v.

LAMORAK INS. CO., ET AL.

Civil Action No. 20-00404-BAJ-EWD.

October 24, 2022.

United States District Court, M.D. Louisiana.

RULING AND ORDER

BRIAN A. JACKSON, District Judge.

This wrongful death and survival action seeks damages related to the death of Decedent Kirk Reulet in January 2019. Plaintiffs allege that during the course of his career, Decedent—a tradesman that worked various marine-economy jobs between the years 1972 and 2013—was exposed to asbestos, ultimately causing him to develop terminal mesothelioma. Plaintiffs seek damages from dozens of Defendants— including Decedent's employers, owners of premises where

Decedent worked, asbestos manufacturers and distributors, and multiple insurers.

Among the employer Defendants is Aerojet Rocketdyne, Inc. ("Aerojet"), who is alleged to be "successor to the liability" of Barnard and Burk, Inc. ("B&B"), a now defunct contracting company that performed maintenance services for premises-Defendant CF Industries, Inc. in the 1970s. (Doc. 95 at ¶¶ 2, 86). Plaintiffs contend that, in 1974, B&B employed Decedent as a carpenter and that, in this role, Decedent worked onsite at CF Industries, where "[o]n a daily basis ... he was exposed to dangerously high levels of ... asbestos, in the normal routine course of his work." (Doc. 95 at ¶¶ 10, 13). Plaintiffs attribute Decedent's exposure to B&B's failure to "provid[e] a safe place to work," (Doc. 95 at ¶ 13), and now seek damages from Aerojet (as B&B's successor) under various theories, including negligence and strict liability. (Doc. 95 at ¶¶ 94-95) After Plaintiffs filed suit, employer-Defendant Huntington Ingalls Incorporated ("Avondale"), and Defendant Albert Bossier, Jr. —Avondale's former executive officer—each filed cross-claims against Aerojet, adopting Plaintiffs' allegations and deflecting to Aerojet any fault attributable to Avondale and Bossier resulting from Decedent's employment at B&B. (Doc. 1-9 at pp. 260-264 (Avondale's Answer and Cross-Claim); id. at pp. 265-269 (Bossier Answer and Cross-Claim)).

Now, Aerojet moves for summary judgment, (Doc. 299, the "Motion"), arguing that Plaintiffs cannot establish that Decedent was exposed to asbestos while employed at B&B, and that, in any event, "Aerojet is not the legal successor to [B&B] and cannot be held liable for its alleged tortious conduct." (See Doc. 299-2 at pp. 5-10). Plaintiffs and Avondale each oppose Aerojet's Motion. (Doc. 373; Doc. 376). For reasons below, Aerojet's Motion will be denied.

The summary judgment standard is well-set: to prevail, Aerojet must show that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In making this assessment, the Court must view all evidence and make all reasonable inferences in the light most favorable to Plaintiffs (and Avondale)—the non-moving parties. Owens v. Circassia Pharms., Inc., 33 F.4th 814, 824 (5th Cir. 2022).

To defeat Aerojet's first argument, "Plaintiffs need only show that a reasonable jury could conclude that it is more likely than not that [Decedent] inhaled [B&B's] asbestos fibers, even if there were only `slight exposures.'" See Williams v. Boeing Co., 23 F.4th 507, 512 (5th Cir. 2022) (citing Held v. Avondale Indus., Inc., 95-1788, p. 5 (La. App. 4 Cir. 4/3/96), 672 So. 2d 1106, 1109). Aerojet cannot credibly dispute that Decedent worked for B&B in 1974.[1] Thus, the only real question is whether an evidentiary basis exists to support a finding that Decedent suffered asbestos exposure while working for B&B. And here, Plaintiffs carry their burden. Charles Becnel, Decedent's childhood friend, testified at his July 7, 2020 deposition that he joined Decedent's union (Carpenter's Local 2258) in August 1974, after his discharge from the Army. (Doc. 304-1 ("Becnel Depo."[2]) at pp. 42:6-43:8). At the time, Mr. Becnel was a millwright and Decedent was a carpenter. Yet, despite different "trades," the two worked closely on union jobs, allowing Mr. Becnel to observe Decedent on a daily basis. (Id. at p. 12:4-16; id. at pp. 14:24-15:6). Mr. Becnel's first job after joining Local 2258 was working with Decedent for B&B, providing

"shutdown" services onsite at CF Industries. (Id. at p. 43:15-18). This first "shutdown" lasted 15 to 20 days, and involved disassembling, cleaning/refurbishing, and re-assembling plant facilities and machinery. (See id. at pp. 13:8-14:7). Mr. Becnel testified that during the shutdown he and Decedent worked side-by-side, (id. at pp. 14:24-15:6); that the work required Decedent to build scaffolding in areas where asbestos-based insulation was being "torn off" steam lines, (id. at p. 16:2-14; see id. at pp. 24:20-25:16); and that as a result of these operations Decedent was exposed to and breathed asbestos-laden dust, (id. at p. 16:15-17:16; id. at pp. 84:7-85:17). Based in part on Mr. Becnel's testimony, Plaintiffs' industrial hygiene expert, Frank M. Parker, III, opines that Decedent's exposure to asbestos at B&B "most likely frequently exceeded contemporary occupational exposure limits," and "placed Decedent at significant risk for developing mesothelioma." (Doc. 376-10 at p. 4).

Aerojet objects to any consideration of Mr. Becnel's testimony, complaining that his memory of dates and events lacks "clarity." (Doc. 299-2 at p. 6). The Court is not persuaded. Perhaps the deposition transcript indicates some confusion and a few temporary lapses, but this is hardly surprising given that the events in question occurred 50 years ago. Additionally, any such confusion is attributable—at least in part—to the format of the deposition itself, which occurred via Zoom and involved a dizzying array of attorneys, who repeatedly interrupted each other (and Mr. Becnel), bickered, and even admitted to "jumping around" and asking "poor question[s]." (See, e.g., Becnel Depo. at pp. 28:8-10; 44:16-46:3; 69:1-4). In other words, to the extent Mr. Becnel's testimony is unclear, counsel shoulders a substantial portion of the blame.

In any event, what Aerojet really wants is a determination that Mr. Becnel lacks credibility. But, of course, "[c]redibility determinations have no place in summary judgment proceedings." Richardson v. Oldham, 12 F.3d 1373, 1379 (5th Cir. 1994). Viewed in the light most favorable to Plaintiffs, Mr. Becnel's testimony sufficiently establishes a genuine dispute as to these key facts: Mr. Becnel joined the union in August 1974; his first job was working a shutdown for B&B at CF Industries; in this job, he worked alongside Decedent; and in this job he and Decedent regularly inhaled asbestos dust. No more is required to defeat Aerojet's Motion. See, e.g., Williams, 23 F.4th at 512-514. It will be for the jury to decide what weight to give Mr. Becnel's testimony at trial.

Aerojet's second argument—that there is no dispute whether it inherited B&B's liabilities—is a nonstarter. In fact, it has already been rejected by Louisiana's state courts, (see Doc. 376-16 at pp. 11-13; Doc. 376-17; Doc. 376-18), and for good reason. When it purchased B&B in 1981, Aerojet executed a Purchase Agreement that expressly assumed all of B&B's "Litigation" liabilities, defined broadly to include "litigation ... aris[ing] after the Closing Date ... demonstrably related to an event which occurred prior to the Closing Date, ... in which B&B or Aerojet or any affiliate of Aerojet is ... a party." (Doc. 373-2 at p. 6). Under the same agreement, B&B "assign[ed] to Aerojet all of its right, title, interest, claims and demands arising from or in connection with the Litigation, including without limitation all claims for reimbursement under applicable insurance policies, and all claims against third parties, and any other benefits which may arise." (Id. at p. 8).[3] There is no ambiguity in these terms, and they are broad enough to encompass Plaintiffs' claims here.

In sum, there is plainly enough evidence to create a contest regarding whether Decedent inhaled asbestos fibers during his employment at B&B and, further, whether Aerojet inherited B&B's liabilities. Accordingly,

IT IS ORDERED that American Insurance Company's Motion For Summary Judgment (Doc. 299) be and is hereby DENIED.

[1] This employment history is reflected on Decedent's certified Social Security records, which show that Decedent received earnings from "Barnard Burk Inc % [sic] Aerojet-General Corp" during each of the first three quarters of 1974—or roughly January through September. (Doc. 376-3 at p. 4). Social Security records are self-authenticating, Fed. R. Evid. 902, Hawbaker v. Danner, 226 F.2d 843, 849 (7th Cir. 1955), and are frequently admitted in asbestos litigation to show a plaintiff's (or decedent's) employment history. E.g., Allen v. Eagle Inc., 2022-0386 (La. App. 4 Cir. 8/10/22), ___ So.3d ___ 2022 WL 3224490 at [*3] n.3; Brindell v. Carlisle Indus. Brake & Friction, Inc., 2022-0153 (La. App. 4 Cir. 9/21/22), ___ So.3d ___, 2022 WL 4363944 at [*4].

[2] Aerojet and Plaintiffs have each produced excerpts of Mr. Becnel's deposition testimony. To avoid confusion, the Court cites only to Aerojet's excerpts, according to the page and line numbers of the original deposition transcript: e.g., Becnel Depo at p. 7:20-24. [3] Aerojet's assumption of B&B's "Litigation" liabilities appears in Appendix J to the Purchase Agreement. (Doc. 373-2 at pp. 6-8). Bizarrely, in its reply memorandum, Aerojet objects to the Court's consideration of Appendix J, asserting that it is "unexecuted" and "wholly irrelevant." (Doc. 436 at p. 3). In a prior asbestos case, however, Aerojet—through its corporate representative Mary Magro—authenticated Appendix J and did not dispute that its plain terms transferred B&B's liabilities to Aerojet. (Doc. 373-2 at p. 4). Competent summary judgment evidence includes Aerojet's sworn statements in prior proceedings. See Marchand v. Asbestos Defendants, 2010-0476 (La. App. 4 Cir. 11/10/10), 52 So. 3d 196, 201, writ denied 2010-2732 (La. 2/11/11), 56 So. 3d 1002; accord Hebert v. Richard, 2015-8 (La. App. 3 Cir. 6/17/15), 166 So.

3d 1265, 1275, writ denied, 2015-1390 (La. 10/2/15), 178 So. 3d 991; Bennett v. Porter, 2010-1088 (La. App. 3 Cir. 3/9/11), 58 So. 3d 663, 669.

Sources

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