70 F.4th 315
5th Cir.2023Background
- Ronald Barrosse worked as a shipyard electrician for Avondale (now Huntington Ingalls) from 1969–1977 and was diagnosed with mesothelioma in 2020.
- He sued in Louisiana state court alleging negligence for asbestos exposure; the case was removed to federal court under the federal-officer removal statute.
- Barrosse never sought benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA).
- Under the pre-1975 Louisiana Workers’ Compensation Act (WCA), mesothelioma was not a listed compensable disease, so Barrosse’s only state remedy for those historic exposures is a tort claim.
- The district court granted summary judgment for the employer, holding the LHWCA preempted the state tort claims; the Fifth Circuit reversed and remanded, holding the tort claims are not preempted on these facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the LHWCA expressly preempts state tort claims in a twilight-zone case | LHWCA exclusivity does not operate in the twilight zone; no express preemption | §905(a) exclusivity shows congressional intent to preempt state remedies | Express preemption does not apply; twilight-zone doctrine controls |
| Whether state tort claims are conflict-preempted because they frustrate LHWCA purposes | Permitting the state tort does not create an "unacceptable obstacle"; LHWCA supplements state law | State torts undermine LHWCA quid pro quo and predictable liability scheme | No conflict preemption; concurrent jurisdiction in twilight zone preserves claim |
| Whether Hahn and related precedents limit tort recovery to torts expressly contemplated by state compensation statutes | Hahn permits some state torts and does not require express statutory authorization for every tort | Hahn should be read to limit torts to those provided by state compensation regimes or where employer obtained state coverage | Hahn is inapposite; torts like Barrosse’s are permissible in the limited category at issue |
| Scope of the decision | Barrosse seeks to proceed in state tort | Employer warns broad disruption of LHWCA balance if allowed | Narrow holding: applies only to maritime workers injured in the twilight zone in Louisiana whose injuries were excluded from the pre-1975 WCA and who did not seek LHWCA benefits |
Key Cases Cited
- Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980) (reaffirmed "twilight zone" concurrent jurisdiction and that LHWCA supplements rather than supplants state law)
- Davis v. Dep’t of Labor, 317 U.S. 249 (1942) (created twilight-zone of concurrent jurisdiction)
- Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272 (1959) (per curiam) (permitted state-law tort recovery in a twilight-zone context under state scheme)
- Calbeck v. Travelers Ins. Co., 370 U.S. 114 (1962) (approved concurrent state and LHWCA payments with crediting to avoid double recovery)
- Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020) (addressed federal-officer removal in similar maritime/asbestos context)
- Hetzel v. Bethlehem Steel Corp., 50 F.3d 360 (5th Cir. 1995) (recognized that the LHWCA’s exclusivity does not effect total preemption in the twilight zone)
- Janvey v. Democratic Senatorial Campaign Comm., Inc., 712 F.3d 185 (5th Cir. 2013) (articulated standards for conflict preemption review)
- Rando v. Anco Insulations Inc., 16 So. 3d 1065 (La. 2009) (held exposure timing governs which version of Louisiana WCA applies)
- DiBenedetto v. Noble Drilling Co., 23 So. 3d 400 (La. Ct. App. 2009) (state appellate decision holding LHWCA did not preempt similar Louisiana tort claims)