Partial Summary Judgment Granted to Insurer Under Professional Vendor Analysis

Goldberg Segalla
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Goldberg Segalla

United States District Court for the Eastern District of Louisiana, July 28, 2022

As previously reported in the Asbestos Case Tracker, decedent Callen Cortez alleged direct occupational exposure to asbestos, as well as take-home exposure from his father’s and brother’s work. As pertinent to this motion, the decedent’s father was an insulator for B&B Engineering and Supply Company from 1966 until 1968. The insurer of B&B moved for summary judgment on four grounds.

The insurer first argued that it had no duty of care to the decedent as OSHA promulgated its first standard regarding take-home exposure in 1972. However, the plaintiff pointed to standards showing take-home exposure as potentially dangerous as early as 1943. The plaintiff also pointed to case law finding a duty in this circumstance, which the court deemed enough to deny the insurer’s motion on this issue. Further, plainitiff’s expert Gerard Baril opined that B&B did not take protective measures or provide appropriate warning information to its employees. As such, there remains an issue of fact as to whether B&B breached a duty of care to the decedent and denied this portion of the insurer’s motion.

In addition, the court denied the insurer’s motion as to the applicability of Louisiana Civil Code article 2317. “To establish strict liability under article 2317, a plaintiff must show 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.” The court noted that B&B employed persons like the decedent’s father to install insulation products that B&B supplied. The decedent testified that his father would return home after work “covered in asbestos dust.” In addition, the plaintiff’s medical expert “testified that [Decedent’s] exposures from his father’s employment at B&B were a significant contributing factor in the development of [Decedent’s] mesothelioma.”

However, the court did grant the portion of the insurer’s motion regarding whether B&B was a professional vendor of asbestos. “In order to be held liable as a professional vendor, a seller must: (1) hold a ‘product out to the public as its own’ and (2) operate with the requisite ‘size, volume, and merchandising practices,’ such that the firm is presumed to know the defects of its wares.” The court found that “[t]here is no evidence of re-packaging by BB or of advertising or merchandising practices suggesting that BB held out the brand name products of others as its own.” In addition, “plaintiffs have not produced evidence that B&B sold asbestos material on the scale necessary to be deemed a professional vendor.” Thus, the court denied in part and granted in part the insurer’s motion for summary judgment.

Read the full decision here

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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