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742 F. Sup p. 10 62, *; 1990 U.S. Dist. LE XIS 930 2, **
4 of 6 DOCUMENTS
CARGE JOH NSON, JR., et al., Plaintiffs, v. NATIONAL STEEL &
SHIPBUILDING COM PANY, et al., Defendants. AND ALL CO NSOLIDATED
ACTIONS
Civ il Nos. 87-1361-G(M ), Con solidated with C ase Nos. 87-13 62-G(M ), 87-1363-G (M ),
87-1453-G(M), 87-1716-G(M ), 88-0141-G(M), 88-0142-G(M ), 88-0202-G(M), 88-
0294-G(M), 88-1025-G(M ), 88-0788-G(M), 88-1029-G(M ), 88-1028-G(M), 88-1024-
G(M ), 88-1011-G (M ), 88-1010-G (M ), 88-1001-G (M ), 88-1007-G (M )
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
CA LIFO RN IA
742 F. Supp. 1062; 1990 U.S. Dist. LEXIS 9302
July 3, 1990, Decided
July 3, 1990, Filed
LexisNexis(R) Headnotes
Maynard O. K artved t, Esq., E l Cajon, California,
Co-counsel for Plaintiff, Lila Joann Starke.
CO UN SEL: Janet E. Sob el, Esq ., Susan C. Stevenso n, Esq .,
Jennings, Engstrand & Henrikson, San Diego, California,
[**1] Preston Easley, Esq., San Pedro, California,
[**2] Attorneys for Plaintiff, Carlos Martin Ortiz.
Attorney for Plaintiffs, Johnson, Miller, Wilson, Pulley
and Magana. John M . Schau, Esq., San Diego, California,
Attorney for George Sumner.
Rocky K. Copley, Esq., Borton, Petrini & Conron,
San Diego, California, A ttorneys for Defendant, Robert E. Couhig, Jr., Esq., Adams & Reese, New
Microdot, Inc./Minne Liquidating, Inc. Orleans, Louisiana, Co-counsel for Defendant, AMCA
International Corp.
L. Richard Rawls, Esq., Palmieri, Tyler, W iener,
W ilhelm & W aldro n, Ne wpo rt Beach, California, Sterling Hutcheson, Esq ., Regina A. P etty, Esq .,
Attorneys for Delda and Tyson Unser. Gra y, Cary, Ames & Frye, San Diego, California, Co-
counsel for Defendant, AMCA International Corp.
Kathleen Cuffaro, Esq., Law Offices of Virginia C.
Nelson, San Diego, California, Attorney for Estrella and David B. Ob erholtzer, Esq., Post, Kirby, Noonan &
Delgadillo. Sweat, San Diego, California, Attorneys for Defendant,
Cleveland Ma chine Co ntrols.
Mark D. Adelman, Esq., Law Offices of Mark
Adelman, San Diego, California, Attorney for Patricia
Mc Clure. JUD GES :
James C. Holzmann, Esq., San Diego, California, Earl B. Gilliam, United States District Judge.
Attorney for P laintiff, Hugh C. H ump hrey.
Alvin G. Kalmanson, Esq., National Steel & OP INION BY :
Shipbuilding, San D iego, C alifornia, Co-counsel for
GILLIAM
Defendant, Nassco.
Sidney A. Stutz, Mark A. Schwartz, Stutz, Gallagher
OP INION :
& Artiano, San Diego, California, Counsel for Nassco.
[*1063] MEMORANDUM DECISION AND
Gerald R. Solomon, Esq., El Cajon, California, Co-
ORDER
counsel for Plaintiff, Lila Joann Starke.
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742 F. Sup p. 10 62, *; 1990 U.S. Dist. LE XIS 930 2, **
NASSCO, AMC A, Microdot, Minnesota Liquidating and
E ARL B . GILLIAM , UNIT E D ST A T ES
Cleveland Machine Controls. As stated above, NASSCO
DISTRICT JUDGE
was the employer of plaintiffs and their decedents at the
The motion by National Steel and Shipbuilding time of the accident. Cleveland M achine Co ntrols is a
Comp any (NA SSC O) fo r summ ary judgment came on successor in interest to Randtronics, the company which
for hearing in Courtroom 7 before the Honorable Earl B . alleged ly manufactured and installed the control system
Gilliam on June 4, 1990 at 10:30 a.m. Stutz, Gallagher & for the electric motor used to ho ist the whip line of Crane
Artiano (Sidney Stutz and M ark Schwartz of co unsel) No. 7.
appeared for NASSC O, the moving party. Gray, Cary,
The role of the other three defendants, M icrod ot,
Ames & Frye (R egina Petty of counsel) and A dams &
M inneso ta [**5] Liquidating and AM CA, is somewhat
Reese (Kirk Gasperecz of counsel) appeared for AMCA
more complicated. Crane No. 7 was manufactured by
International Corporation (AM CA). Bo rton, P etrini &
Clyde Iron Works, Inc. in 1964 or 1965. Sometime
Conron (Roberta Fairbanks and David O lan of co unsel)
around 1970, Clyde Iron W orks became a wholly-owned
appeared for Microdot, Incorporated (M icrod ot). Post,
subsidiary of M icrodot. In 1973, Microd ot sold the
Kirb y, Noonan & Sweat [**3] (David Oberholtzer of
business of Clyde Iron Works to Dombrico, Inc. Under
counsel) appeared for Cleveland M achine Co ntrols.
the sales agreement, Microdot kept all of the sales
Preston Easley appeared for the Johnson, Miller, Wilson,
proceeds and cha nged the nam e of Clyde Iro n W orks to
Pulley and M agana plaintiffs. Palmieri, Tyler, Wiener,
M inneso ta L i q u id a t in g C o m p any. M i n n e so ta
W ilhelm & W aldro n (Richard Rawls of counsel)
Liquidating remained a shell corporation and fo r all
appeared for the Unser plaintiffs. Jennings, Engstrand &
intents and purposes ceased business activity. After
Henrikson (Susan Stevenson of counsel) appeared for
purchasing Clyde Iron W orks in 1973, Dombrico used
plaintiff Carlos Martin Ortiz. John Schau appeared for
the factory to continue to p roduce the same line of cranes
plaintiff George Sum ner. Virginia Nelson [*1064] and
under the name "Clyde Iron." AMCA is the successor
Kathleen Cuffaro appeared for the Estrella and
corporation of Dom brico. n1
Delgad illo plaintiffs.
At the conclusion of the hearing, the court took
NASS CO's motion under submission. The court now n1 The issue o f whether AM CA, Micro dot or
issues its ruling denying the motion for summary Minneso ta Liquidating should be liable for cranes
judgment without prejudice to renew. The court instead manufactured before 1973 has not yet been
construes the mo tion as a motio n to dism iss with leave to resolved.
amend and hereby dism isses the cross-claims against
NASSCO by AM CA, M innesota Liquidating and
AMCA, Microdo t and Minnesota Liquidating have
Microd ot.
filed cross-claims against NASSCO for full or partial
FACTS equ itable indemnity, full or partial comparative
indem nity [**6] and declarato ry relief. NA SSC O is
On July 10, 1987, the U.S.S. Sacramento was shifted
seeking summ ary judgment on these cro ss-claims.
from a drydock to Berth 5 in NASSC O's shipyard. The
operation was performed under the supervision of the DISCUSSION
United States Navy and a San Diego H arbo r pilot.
NASSCO subm its that the cro ss-claims for
Plaintiffs and their decedents were employees of
indem nity are barred by the exclusive liability provisions
NASSCO with various duties relating to moving the
of the Longshore and Harbor Workers' Compensation
U.S.S. Sacramento. [**4] After the U.S.S. Sacrame nto
Act (LH W CA). See 33 U.S.C.A. § 901 et seq. (West
was shifted, a p erson nel basket was lowered b y crane to
1986 & Supp. 1990). The LHW CA provides a workers'
retrieve the NASSCO employees to transport them to the
compensation scheme for maritime employees such as
dock. The personnel basket was attached to the whip line
longshoremen and certain other harbor work ers. See 33
of a Clyde W hirley crane, C-W num ber 3864, NASSCO
U.S.C .A. § § 902(3), 904. N ASS CO has pa id benefits to
number 7 ("Crane N o. 7" ). As the basket moved over the
the deceased and injured workers and their families
U.S.S. Sacramento, it suddenly fell to the deck of the
under the LHWCA, and it sub mits that tho se payments
ship. Of the twelve workers in the basket, six were killed
are the employer's exclusive liability. NASSCO relies on
and six were injured.
Sections 5(a) and 5 (b) of the LH W CA for this
Plaintiffs (the workers and their families) filed a proposition. Section 5 (a) provides in pertinent part:
complaint against various defendants under numerous
The liability of an emp loye r
theories, including the Jones Act, common law
prescribed in section 904 of this title shall
negligence, products liability and breach of warranty.
be exclusive and in place of all other
The defendants have filed numero us cross-claims against
liability [*1065 ] of such employer to the
each other. The defendants at issue in this motion are
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742 F. Sup p. 10 62, *; 1990 U.S. Dist. LE XIS 930 2, **
employee, his legal representative . . . and indicated that the LHW CA does not change the judicially
anyone otherw ise entitled to recover created rules for maritime liability except where
damages from su ch em ployer at law or in Congress uses explicit language in the statute to do so.
adm iralty on account of such injury or See, [**9] e.g. Edm ond s, 443 U.S. at 271-73; Coo per,
dea th . . . . 33 U.S.C.A. § 905(a) 417 U.S. at 112-13. Therefore, within the exceptions of
(emphasis added). the LHW CA, the cross-claima nts may a lso allege third
party claims against NASSCO in the cases where the
Section 5(b) provid es in pertinent part: plaintiffs properly state a cause of action against them
under maritime tort law.
In the event [**7] of injury to a
person covered under this chapter caused The confusion over the effect of the exclusive
by the negligence of a vessel, then such liability provisions of the LHW CA therefore begins
person, or anyone otherw ise entitled to where neither the Jones Act nor m aritime law applies.
recover dam ages b y reaso n thereof, may For example, in Edmonds, the jury determined that an
bring an ac tion aga inst such vessel as a injured longshoreman was ten percent at fault during the
third party . . . and the employer shall not incident that caused his injury, that the longshorema n's
be liable to the vessel for such damages employer was seventy percent at fault and that the vessel
directly or indirec tly and any agreements owner was twenty perc ent at fault. Edmonds, 443 U.S. at
to the contrary shall be void. 33 U.S.C.A. 258. The trial court applied maritime law and required
§ 905(b) (emphasis added). the vessel owner to pay ninety percent of the
lo ng sh or em an 's da ma ge s, w ithout reduction or
NASSCO corre ctly concedes that regardless of the
contribution. Id. The Supreme Court, affirming the
LHWCA, it can be adjudged jointly and severally liable
district court's ruling, held that the explicit language of
with the cross-claimants in the cases where plaintiffs or
section 905(b) of the LHWCA prohibited the vessel
their deced ents were seamen pursuant to the Jones Act,
owner from seeking contribution from the stevedore-
46 U.S.C.A.App § 688 (West 1975 & Supp. 1990). See
employer and that despite the harsh result for the vessel
Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1430-32
owner, Congress did not intend to alter the established
(5th Cir. 19 88), reh'g denied, 860 F.2d 12 55 (5th C ir.
[**10] maritime rule of joint and several liability. Id. at
1988 ), cert. denied, 490 U.S. 110 6, 10 9 S. C t. 3156, 104
259-73. See also Dodge v. Mitsui Shintaku Ginko K.K.
L. Ed. 2d 1 019 (198 9). Therefore, A MCA, Minneso ta
Tokyo, 528 F.2d 669, 671-73 [*1066] (9th Cir. 1975),
Liquidating and M icrod ot may allege valid co ntribution
cert. denied, 425 U.S. 944, 48 L. Ed . 2d 18 8, 96 S. Ct.
and indemnity claims in the five cases where N ASS CO is
1685 (197 6). However, the Edmonds Court exp licitly
named as a primary defendant under the Jones Act. Since
noted that "[its] decision does not necessarily have any
coverage under the Jones Act and coverage under the
effect on situations where [the L HW CA] p rovides the
LHWCA are mutually exclusive (see Bertrand v.
workers' compensation scheme but the third party action
International Mo oring & Ma rine, Inc., 700 F.2d 240,
is not go verned by p rinciples of maritime law."
243 [**8] (5th Cir. 198 3), reh'g denied 710 F.2d 837
Edmonds, 443 U.S. at 272 n. 31.
(5th Cir.), cert. denied 464 U.S. 1069, 79 L. Ed . 2d 212,
104 S. Ct. 974 (1 984 )), this court must determine which Because of the lack of guidanc e from Congress or
of the cross-claims are proper against a maritime the Supreme Court regarding LHWCA employer liab ility
emplo yer in non-Jones Act cases. to non-vessel third-parties in cases governed by state law,
several lower courts have struggled with the issue
Similarly to the Jo nes Act, maritime tort law
presented in this motion. See Annotation, Right of
generally provide s for joint and several liability among
Tortfeasor Other Than Vessel Join tly Respon sible w ith
tortfeasors. An injured party may sue a tortfeasor under
Stevedore or O ther E mp loyer for Inju ries to E mp loyee to
maritime law for the entire amount o f damages even if
R e c o v e r I n d e m n i ty f ro m E m p l o y e r U n d e r
other tortfeasors were concurrently liable. See Edmonds
Longshorem en's and Harbor Workers' Compensation
v. Compagnie Generale Transatl., 443 U.S. 256, 259-60
Act, 47 A.L.R. Fed. 416 (1980) (collecting and
& nn. 7 -8, 61 L. Ed . 2d 521, 99 S. Ct. 27 53 (1 979 ), reh'g
summarizing the caselaw). M ost courts have refused to
denied, 444 U.S. 889, 62 L. Ed. 2d 126, 100 S. Ct. 194
extend section 905 (b)'s blan ket pro hibition of
(197 9); Coope r Steve doring C o. v. Fritz Kopke, Inc., 417
contribution and indem nity actions by vessel owners
U.S. 106 , 113, 4 0 L. E d. 2d 694 , 94 S . Ct. 21 74 (1 974 ).
against employers to other types of third parties. [**11]
"A conc urrent tortfeaso r generally may seek contribution
The majority of cases have held that contribution or
from another, but he is not relieved from liability for the
indem nity actions by non-vessels against the employer
entire damages even when the nondefendant tortfeasor is
are not barred by the LHWCA if they are based on either
immune from liability." Edmonds, 443 U.S. at 260-61 n.
an express or implied contractual obligation between the
8 (citations omitted); see also M iller v. Ch ristophe r, 887
third party and the employer, or an obligation in tort
F.2d 902 , 904 (9th C ir. 198 9). The Supreme Court has
between the employer and the third party. See, e.g.
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742 F. Sup p. 10 62, *; 1990 U.S. Dist. LE XIS 930 2, **
Couch v. Cro -Marine Tran sport, Inc., 725 F . Sup p. 978 NASSCO which contain broad language indicating that
(C.D . Ill. 198 9); Horton v. Sun Exploration and there is no right to contribution or indemnification
Production Co., 616 F. Su pp. 1 30, 131 (W.D. La. 1985) against an em ployer under the LHW CA. See, e.g. Drake
(citing Pippen v. Shell Oil Co., 661 F.2d 378, 386-88 v. Raym ark Ind ustries, Inc., 772 F .2d 10 07, 10 22 (1st
(5th Cir. 19 81)). See also M. Yeates, P. Dye & R. Cir. 198 5), cert. denied, 476 U.S. 1126, 90 L. Ed. 2d
Garcia, Contribution and Indemnity in Maritime 675, 106 S. Ct. 1994 (1986) (holding [**14] that the
Litigation, 30 S . Tex. L. Rev. 215 , 257 -61 (198 9). LHWCA barre d non-vessel third party claims for
contribution and noncontractual indemnity against an
Section 905(a) states that the liability of the
employer); S.S. Seatra in Lo uisian a, etc. v. Cal.
employer "shall be exclusive . . . to the employee, his
Stevedore, 424 F. Su pp. 1 80, 1 83-85 (N .D. Cal. 1976)
legal representative, husband or wife . . . and anyone
(holding that absent an express or implied contract for
entitled to recover damages from such employer at law or
indem nity, no indemnity in tort can be obtained by a non-
in adm iralty on accou nt of such injury or dea th . . . ." 33
vessel third party from a LHW CA emp loyer). In Drake,
U.S.C.A. § 905(a) (emphasis added). The majority of
the non-vessel third party was an asbestos manufacturer
cases have reasoned that nonvessel third party actions
who alleged that the employer (a ship repairer) breached
based on contractual indemnity are not barred by the
its duties to its employees by failing to protect the
statute because they do not arise "on account of" the
employees from po tential harm in the use of the asbestos.
injury [**12] or death of the employee, the actions are
Id. at 1009-1 0. T he court noted that the third party was
on acco unt of the express or im plied indemnity contract
seeking contribution based on a breach of duty between
between the employer and the third party. See, e.g.
the employer and the employee, not the employer and the
Pippen, 661 F.2d at 386-87; Zap ico v. B ucyrus-E rie Co .,
third party. Id. at 1022. Therefore, the Drake court could
579 F.2d 714, 721 -22 (2nd Cir. 19 78); Horton, 616 F.
have dismissed the third party claims by following the
Supp. at 131; Holden v. Placid Oil Co., 473 F. Supp.
majo rity rule developed in Pippen and the other cases
1097, 1099 -1100 (E .D. La. 19 79). Likewise, numerous
cited above, and the sweeping language in the opinion
courts have held that non-ve ssel third p arty contribution
stating that sectio n 905 bars even non-vessel third party
actions against employers are not barred if based on the
contribution actions would have bee n unnecessary for the
employer's breach of a tort duty it owed to the third
court's holding.
party, since such a tort duty would not arise "on account
of" the emp loyee's death or injury. See, e.g. Horton, 616 Instead, the Drake court relied on a statement by
F. Supp. at 131; Holden, 473 F. Supp. at 1100-01. [**15] Senator D onald Nickles, the chair o f the Senate
Labor Subcom mittee in 1984, at a time when Congress
This view is entirely consistent with the Supreme
was amending the LHWCA. See Drake, 772 F.2d at
Court's analysis of section 8116(c) of the Federal
1022. Senator Nickles stated that the committee was
Emp loyees' Comp ensation Act (FECA), an analogous
aware of the Lockheed decision and concerned that
provision to sectio n 905(a) of the LHW CA. See
courts might begin to allow contribution claims against
Lockheed Aircraft Corp. v. United States, 460 U.S. 190,
employers by non-vessels, but that the clear language of
74 L. Ed. 2d 911, 103 S. Ct. 10 33 (1983 ). The FECA
section 905 (a) indicated that Co ngress intended to
provides a workers' com pensation p rogra m for certain
prohibit all third party liability claims against the
federal emp loyees. See 5 U.S.C.A. § 8101, et seq. (W est
employer. 130 Cong. Rec. S11621 (daily ed. Sept. 20,
1980 & Supp. 1990). Section 8116(c) of the FECA
1984). The Drake court interpreted Senator N ickles'
prohibits actions against the United States [**13] by an
statement as an "authoritative expression of Congress"
"employee, his legal representative, . . . [or] any other
which reinforced the view that section 905(a) was
person otherwise entitled to recover damages from the
intended to bar all indemnity and contribution actions
United States . . . because of the [employee's] injury or
against LHW CA emp loyers. See Drake, 772 F.2d at
death . . . ." 5 U.S.C.A. § 8116(c). In Lockheed, a civilian
1022. NASSCO in this motion also urges this court to
United States N avy em ployee died in the crash of a
adopt Senator N ickles' statement as reflective of
United States Air Force aircraft which had been
Congressional intent. However, the statement was m erely
manufactured by Lockheed. Pursuant to the FECA, the
Senator Nickles' own personal view. O n that sam e day,
Un ited States paid death benefits to the employee's
Senator Orrin Hatch testified that the committee did not
survivors. Loc kheed, 460 U .S. at 191. The em ployee's
address the issue o f third pa rty liability of em ployers to
administrator thereafter filed suit against Lockheed, and
non-vessels following the Lockheed decision, and
Lockheed impleaded the United States under an
therefore they did not [**16] attempt to amend the
indem nification theory. Id. at 191-92. The Supreme
section in this regard. 13 0 Cong. R ec. S1 162 5-26 (daily
Court held that "any other person otherwise entitled to
ed. Sept. 20, 1984). Senator H atch also expressed his
recover damages" in section 8116(c) did [*1067] not
own opinion that section 905(a) should bar all third party
include an unrelated third party such as Lockheed
actions against LHW CA emp loyers, but it was not the
seeking indemnification und er tort law . Id. at 193-98.
opinion of the entire Senate sub com mittee, let alone of
This court declines to follow the cases relied on by
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742 F. Sup p. 10 62, *; 1990 U.S. Dist. LE XIS 930 2, **
the entire Congress. Id. Significantly, Congress amended agreement between itself and NASSCO. Instead, AMCA
subsections (a) and (b) of the LHW CA in 1984, but they alleges that it provided numerous warnings to NASSCO
did not add further restrictions to actions against not to use the c ranes to transp ort pe rsonnel, and that
employers to includ e claims by non-vessels. See NASSCO ignored those warnings and failed to post them
Longshore and Harbor Workers' Compensation Act for their employees. AMCA argues that this "special
Amendments of 19 84, P ub. L. No. 98 -426 § § 4(b ), relationship" between the parties required NASSCO to
5(a)(1), (b), 98 Stat. 1641 (1984). either use the warnings or to indemnify AMCA if AMCA
is found liable and those warnings [**18] could have
The court in S.S. S eatra in reasoned that allowing
prevented the accident. However, Microdot's contribution
third party claims against employers by non-vessels
and indem nity claims are based at least partially on
would run co ntrary to the purp oses o f Congress when it
NASS CO's alleged failure to provide a safe working
amended the Act in 1972 to add section 90 5(b). See S.S.
environment for its employees. This allegation has
Sea train, 424 F. Supp. at 183-85. However, the language
nothing to do with a duty of care between NASSCO and
of the 1972 Amendment indicates that the Congressional
Microdot and therefore should be dism issed. T he specific
intent was not so broad. The explicit language of section
theories of the individual cross-claims are unclear to the
905(b) prohibits third party claims against LHWCA
court. Therefore, to clarify the rec ord, the court will
employers by vessel owners, and no one else. There is no
dismiss all of the cross-claims aga inst NA SSC O with
legislative history which indicates that Congress intended
leave to amend, with the proviso that the allegations fit
[**17] to pro hibit other third party claims. See Pippen,
the framework described above.
661 F.2d at 386-88 & n. 15; Zapico, 579 F.2d at 721-22.
To conclude, the court construes NASSCO's motion
Therefore, this court holds that as long as AMCA,
for summ ary judgment as a motion to dismiss and
Minneso ta Liquidating and Microdot find some basis for
dismisses all cross-claims against NASSCO with leave to
their rights to [*1068] contrib ution and/or indem nity,
amend as described in this opinion. A MCA, Minneso ta
there is no blanket preclusion by the LHW CA. The final
Liquidating and M icrodot shall have 45 days to amend
question is whether the causes of action for contribution
from the date of entry of this order. After amendme nt,
or indemnity stated by AMCA , Minnesota Liquidating
NASSCO may renew its motion for summary judgment
and Microdo t are based on either an express or implied
if desired.
contractual obliga tion between the third party and the
employer, or an obligation in tort between the employer IT IS SO ORDERED.
and the third party. It is very unclear exac tly what
Dated: July 3, 1990.
theories AM CA, M innesota Liquidating and Microdot
are using to plead contribution or indemnity. AMCA
concedes that there was no exp ress hold-harm less