In this mesothelioma case, the decedent worked for a vessel repair company and performed repair work on a vessel involving pipe insulation possibly containing asbestos. His estate sued the vessel owner under “both the Longshore & Harbor Workers’ Compensation Act, 33 United States Code section 905(b) (the Act, or section 905(b)) and state law.” The vessel owner moved for summary judgment on a number of  grounds, including that it did not actively control the area where the alleged exposure occurred. The lower court granted the defendant’s motion, which was affirmed on appeal, with the California Court of Appeal stating: “We conclude that summary judgment was properly granted. Based on our independent review of the record, we have found no triable issues of material fact. Plaintiffs’ contention that the trial court erred in failing to consider the duty of active control is not persuasive. That duty is inapplicable where, as here, there is no evidence that the vessel owner retained active control of the area where the injury occurred. [*14] (Davis, supra, 16 F.3d at pp. 540-541.) The fact that the vessel owner retained control over the engine room does not create a triable issue of material fact under these circumstances, because there is no evidence as to the manner in which Mr. Murat was exposed to asbestos. The evidence, at best, showed only a mere possibility of exposure.”

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If you have questions about how this decision may impact your business, please contact:

• Joseph J. Welter (716.566.5457; jwelter@goldbergsegalla.com)
• Jason A. Botticelli (716.566.5460; jbotticelli@goldbergsegalla.com)
• Susan E. Van Gelder (716.566.5463; svangelder@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Toxic Torts Practice Groups