Fifth Circuit Decision Could Have Impact on Louisiana Maritime Employers

In this blog, I will be discussing a decision of the federal Fifth Circuit Court of Appeals in the case of Lynn Barrosse; Raegan Holloway; McKenzie Stricker v. Huntington Ingalls, Inc., formerly known as Northrup Grumman Ship Systems, Inc., formerly known as Avondale Industries, Incorporated, No. 21-30761, 5th Cir. (06/12/2023).

Mr. Barrosse worked as an electrician for Avondale from February 1969 until June 1977. He was diagnosed with mesothelioma in March 2020, following which he filed a state law tort suit (Louisiana) against Avondale, alleging that Avondale, among other defendants, exposed him to asbestos.

Very Important Note:  This discussion assumes that the injurious exposure continued throughout the employment, which ended in June 1977. This cannot be ascertained from the court's decision. The court simply cites "significant exposure" in 1969 as the basis for its decision.

If the last exposure was, in fact, in 1969, then I can understand the decision. The court's reasoning and reliance are based on the case, Hahn v. Ross Island Sand & Gravel Co. 358 U.S. 272, which I believe is an incorrect basis for the Barrosse case. Unlike Hahn, Barrosse is not a "twilight zone" case, and unlike the injury in the Hahn case, Barrosse is an occupational disease (O.D.) case.

In 1969 Mr. Barrosse, a land-based worker, was covered by neither the state of Louisiana's workers' compensation law nor the federal Longshore and Harbor Workers' Compensation Act, leaving him in the pre-workers' compensation era where a tort suit based on negligence was the injured worker's only remedy. But if the last exposure was in 1977, then I believe that the decision is wrong for the reasons spelled out below.

Discussion:

The case against the employer should have been dismissed under the exclusivity provision of the Longshore and Harbor Workers' Compensation Act (LHWCA or Longshore Act). The federal district court for the Eastern District of Louisiana agreed, granting Summary Judgment to Avondale.

Section 5(a) of the LHWCA (33 U.S.C. 905(a)): "The liability of an employer … shall be exclusive and in place of all other liability of such employer to the employee, his legal representative … and anyone otherwise entitled to recover damages from such employer at law or in admiralty … except that if an employer fails to secure payment of compensation as required by this Act, an injured employee … may elect to claim compensation under the Act or to maintain an action at law or in admiralty …."

That's as clear a statement of federal pre-emption as you could expect to find. Does it apply in the Barrosse case?  The federal Fifth Circuit Court of Appeals didn't think so and reversed the district court's grant of Summary Judgment to the employer. No pre-emption. Tort suit against the employer allowed.

Here are some factors to keep in mind during the discussion:

• As noted above, it appears but is not certain that Mr. Barrosse was exposed to asbestos continuously from 1969 to 1977;
• The Louisiana state workers' compensation statute did not cover mesothelioma until the law was amended in 1975;
• The Longshore Act was amended in 1972 to cover land-based maritime workers like Mr. Barrosse. Prior to the 1972 Amendments, the Longshore Act only covered injuries over navigable waters;
• Mr. Barrosse did not file a claim, nor did he receive benefits under the Longshore Act;
• The defendant Avondale was authorized as a self-insured employer by the U.S. Department of Labor, thus meeting the insurance requirement referenced in Section 5(a);
• In 1969, Mr Barrosse was not covered by either the Longshore Act or the Louisiana state workers' compensation law;
• By the (presumed) date of last exposure (1977), he was covered by both laws;
• Longstanding principle – federal maritime statutes such as the Longshore Act, Jones Act, and the Death On the High Seas Act pre-empt state law based on field pre-emption. Also, Section 5(a) of the Longshore Act expressly pre-empts state tort law;
• The "twilight zone" is the name given to the period of jurisdictional confusion from 1927 to 1972 between state act workers' compensation laws and the Longshore Act;
• The "Manifestation Rule" in occupational disease cases (like Mr. Barrosse's) provides that the date of manifestation (usually the date of diagnosis) is the "date of injury" (here March 2020) and determines most issues, viz., average weekly wage, statute of limitations, choice of law;
• The date of last exposure determines the responsible employer/carrier (here 1977);
•  If the employer is properly insured, then the injured employee does not have an election of remedies under Section 5(a);
• The injured worker doesn't decide if the Longshore Act covers him. This is determined by the coverage principles of "situs" and "status ." In a "concurrent" state, the worker may be covered by both state act workers' compensation and the Longshore Act;
• Finally, this case is not a "twilight zone" case. 
  

In 1969, Mr. Barrosse was not covered by any workers' compensation law. The Fifth Circuit relied on a 1959 non-occupational disease, twilight zone decision by the U.S. Supreme Court (Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272) to decide that under the facts in the Barrosse case, the injured worker could elect to sue his employer in tort.

Unlike Barrosse, Hahn was a traumatic injury case, NOT an occupational disease case. The claimant was injured on a barge over the navigable waters. Again, unlike Barrosse, Hahn WAS a "twilight zone" case. It is not a precedent for Barrosse.

Note: An occupational disease (O.D.) is defined as disease caused by hazardous conditions of employment peculiar to the employment. Unlike a traumatic injury, an O.D. exposure does not result in immediate disability. Therefore, there are different rules for exposure, last employer, and statute of limitations in O.D. cases.

The Fifth Circuit cited "significant exposure" to asbestos in 1969 and based its decision on this 1969 exposure. If this had been the last exposure, I could understand the decision. In 1969, Mr. Barrosse was covered neither by the Longshore Act nor the state's workers' compensation law. A tort suit was his only remedy. However, employment and exposure continued until 1977, when he was covered by the state act and the LHWCA. Contrary to the Fifth Circuit's decision, Section 5(a) of the Longshore Act should have applied to bar the tort suit against Avondale.

Note: Curiously, the Fifth Circuit did not consider it to be dispositive whether the pre-72 or post-72 Amendment version of the Longshore Act applied, but it noted that the court below had used the post-72 Amendment version, and neither party had appealed this. 

Here's a look at a timeline of recent cases to illustrate what's happened in the Fifth Circuit:

Hulin v. Huntington Ingalls, Inc., No. 20-924, 2020 U.S. District LEXIS 189824, Eastern District of Louisiana (10/14/2020) – exposure to asbestos pre-1972, manifestation post-1972, manifestation rule controls – tort suit barred. Conventionally and correctly decided.

Becnel v. Lamorak Insurance Company, No. 19-14536, 2022 U.S. District LEXIS 107310, (EDLA) 06/16/2022 – cancer manifests in 2019, so post-72 Amendment LHWCA applies to bar tort suit against employer. Conventionally and correctly decided.

Sentilles v. Huntington Ingalls, Inc., No.21-958, 2022 U.S. Dist. LEXIS 109201 (EDLA) 06/21/2022 – tort suit barred by exclusivity. Conventionally and correctly decided.

Cortez v. Lamorak Insurance Company, No. 20-2389, 2022 U.S. District LEXIS 79756, 85759, 90032, 90033, (EDLA) 05/03 and 05/19/2023 – manifestation rule, state tort suit barred. Conventionally and correctly decided. We're still on track.

Then, Barrosse, 06/12/2023. And with this case, the Fifth Circuit has taken a drastic turn. 

Cadiere v. Huntington Ingalls, Inc., No. 23-432, 2023 U.S. District LEXIS 124922, EDLA (07/20/2023) Tort suit against employer permitted.

Robichaux v. Huntington Ingalls, Inc., No. 22-cv-610, 2023 U.S. District LEXIS 159942, (EDLA) 09/18/2023. Tort suit permitted.  

Conclusion:

We've taken a wrong turn.

This decision is a problem for Louisiana maritime employers operating before the 1975 amendments to the state's workers' compensation law.

If you are interested in learning more, here is some additional reading on the matter:

Texas Employers' Insurance Association v, Jackson, 820 F.2d 1406 (5th Cir., 1987) – "In a nutshell, it is difficult to imagine a more comprehensive scheme of federal regulation – one that leaves no room for state involvement – than that contained in the Longshore Act."

Robin v. Sun Oil Co., 548 F.2d 554 (5th Cir., 1977) – "The Longshore Act's exclusive remedy provision bars civil suits for damages by injured workers. It destroys any underlying tort liability for the employer."

Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935 (3d Cir.) 1990 – civil actions are barred when the employer is insured.

Marvinney v. Australian Spirit, L.L.C., Index No. 151377, 2019, 2023 N.Y. Slip Op 23085, 2023 N.Y. State Misc. Lexis 1391 (N.Y. Sup Richmond Cty) 03/30/2023 – an employee can receive benefits under both the LHWCA and the Jones Act until a final determination as to status is made. 

Section 5(a) of the Longshore Act requires only the employer to secure coverage and not pay Longshore Act benefits to get the exclusive remedy protection. Of course, this is not precedential in the Fifth Circuit but is illustrative of correct reasoning.

Crowe v. C.S.X. Transportation, Inc., No. 922, M.D. App Lexis 727, M.D. App 08/28/2019 – asbestos exposure 1960-69, mesothelioma diagnosis in 2017, post-72 Amendment LHWCA applies to bar suit under FELA. Again, this is just an illustration of a court getting it right.