PRESENT: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and Powell, JJ., and Koontz, S.J.
EXXON MOBIL CORPORATION OPINION BY v. Record No. 111775 JUSTICE LEROY F. MILLETTE, JR. JANUARY 10, 2013 CONNIE MINTON, EXECUTOR OF THE ESTATE OF RUBERT E. MINTON
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Timothy S. Fisher, Judge
This appeal arises out of a jury verdict against Exxon
Mobil Corporation (Exxon) based on injuries that Rubert E.
Minton suffered as a result of developing mesothelioma from
exposure to asbestos while working on Exxon ships during his
employment at the Newport News Shipbuilding and Dry Dock
Company (Shipyard).
On appeal, Exxon assigns error to: (1) the circuit court's
finding that the evidence was sufficient to show that Exxon
either actively controlled Minton's work or that Exxon failed
to intervene to protect him in the face of actual knowledge
that the Shipyard was ignoring an obvious risk to his safety;
(2) the circuit court's finding that the evidence was
sufficient to show that Minton's mesothelioma was proximately
caused by Exxon's breach of a maritime law duty; (3) the
circuit court's exclusion of all evidence that the Shipyard
knew of the relevant hazard and had asbestos controls in place; and (4) the award of punitive damages. For the reasons stated
herein, we reverse and remand.
I. Facts and Proceedings
Minton was employed at the Shipyard from 1956 until 1993,
except for two years spent in the Army Reserves. From 1956 to
1960, Minton worked as an apprentice shipfitter in the
construction of new ships. When he returned from the Reserves
in 1962, he worked as a shipfitter and became a supervisor of
other shipfitters. During this time period Minton worked on
the construction of new vessels and never worked aboard any
Exxon vessels. He was regularly exposed to asbestos from
asbestos-containing materials as well as from asbestos dust
from a dusty worksite and does not claim that Exxon is liable
for this asbestos exposure.
In 1966, Minton was promoted to ship repair staff
supervisor and was responsible for supervising and coordinating
the repair of vessels. As the position did not involve hands-
on participation in the vessels' repair work, Minton did not
personally handle asbestos products. Nonetheless, Minton spent
approximately half of his day walking through vessels on which
repairs were being made with each vessel's repair supervisor or
port engineer, to start new jobs and to inspect the repair work
that was being done or that was recently completed. During
these inspections, Minton and the ship's port engineer viewed
2 various rooms in which asbestos was used, including the boiler
and engine rooms.
Between 1966 and 1977, Exxon frequently brought their
vessels to the Shipyard's facilities for repair. Over Minton's
eleven years as repair supervisor, Exxon owned seventeen of the
approximately two hundred vessels repaired by the Shipyard.
In 2009, sixteen years after the conclusion of his
employment with the Shipyard, Minton was diagnosed with
malignant mesothelioma, a form of cancer caused by exposure to
asbestos. Minton filed suit against Exxon under the federal
Longshore and Harbor Workers' Compensation Act (LHWCA), 33
U.S.C. § 905(b), for failure to warn Minton of, and protect him
from, the dangers associated with asbestos. The jury found in
favor of Minton and awarded him $12,000,000 in compensatory
damages, $430,963.70 in medical expenses, plus punitive damages
in the amount of $12,500,000. Exxon's motions to set aside the
verdict, for a new trial, and for remittitur were denied,
except that the punitive damage award was reduced to
$5,000,000, the amount sought in Minton's ad damnum clause.
Exxon timely filed its appeal.
II. Analysis
A. Sufficiency of the Evidence to Show Duty of Care
Exxon first challenges the sufficiency of the evidence to
establish that it violated the requisite duty of care. We
3 review the sufficiency of evidence on appeal by "examin[ing]
the evidence in the light most favorable to . . . the
prevailing party at trial, and the trial court's judgment will
not be disturbed unless it is plainly wrong or without evidence
to support it." Nolte v. MT Tech. Enters., LLC, 284 Va. 80,
90, 726 S.E.2d 339, 345 (2012) (internal quotation marks
omitted); see also Code § 8.01-680.
Under 33 U.S.C. § 905(b) of the LHWCA, a vessel owner must
use ordinary care in maintaining the vessel and its equipment
so that an expert and experienced stevedore can load and unload
cargo with reasonable safety. Included under the protection of
the LHWCA are ship repairmen and shipbuilders. 33 U.S.C.
§ 902(3). Under the version of the LHWCA in effect prior to
1972, liability could be imposed upon a vessel owner by showing
either that the vessel owner negligently caused the worker's
injuries, or that the vessel itself was unseaworthy. Green v.
United States, 700 F.Supp.2d 1280, 1296 (M.D. Fla. 2010).
Unseaworthiness did not require a showing of fault by the
vessel owner, because the creation of an unsafe condition was
enough to create liability. Id. In 1972, Congress amended the
LHWCA to "shield shipowners from strict liability," imposing a
negligence standard and removing the ability of a worker to
bring a claim against the vessel owner for unseaworthiness.
Id. (internal quotation marks omitted); see also LHWCA
4 Amendments of 1972, Pub. L. No. 92-576, 86 Stat. 1263 (codified
as amended at 33 U.S.C. § 905(b)). As a result, an injured
worker seeking to sue a vessel owner must now show that the
owner of the vessel "violated a duty owed to the injured
worker" before liability can be established under the Act.
Lormand v. Superior Oil Co., 845 F.2d 536, 541 (5th Cir. 1987).
In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S.
156 (1981), the United States Supreme Court established the
standard of care owed by a vessel owner to shipyard workers
such as Minton under the current version of the LHWCA. The
three separate duties set forth in Scindia have been termed the
"turnover duty," the duty of "active control," and the "duty to
intervene." Howlett v. Birkdale Shipping Co., S.A., 512 U.S.
92, 98 (1994) (citing Scindia, 451 U.S. at 167-78).
Exxon argues on appeal that the evidence presented at
trial was not sufficient to prove a violation of any of the
duties of care established by Scindia to create liability for a
vessel owner under the 1972 amendments to the LHWCA. We
disagree and conclude that the evidence was sufficient for a
reasonable jury to find that both the active control duty and
the duty to intervene were owed to Minton and subsequently
breached.
5 1. Turnover Duty
Exxon contends that Minton waived the turnover duty, which
relates to the condition of the ship at the commencement of
stevedoring operations. Howlett, 512 U.S. at 98. We agree, as
the turnover duty was not argued at trial, and Minton expressly
withdrew his argument as to the presence of a turnover duty
pre-trial.
2. Active Control
Under the active control duty, a "vessel may be liable if
it actively involves itself in the cargo operations." Scindia,
451 U.S. at 167. Exxon argues that there was no active
involvement because its supervision did not extend beyond
general oversight. Using the language of the court in Dow v.
Oldendorff Carriers GMBH & Co., 387 Fed. Appx. 504, 507 (5th
Cir. 2010), Exxon claims that Minton was required to prove that
Exxon actively controlled the "methods and operative details"
of the Shipyard workers' repair work. Exxon argues that Minton
provided no evidence to show that Exxon told the Shipyard
workers how to complete their repair jobs on its vessels.
Exxon also contends that Minton did not present any
evidence to show that Exxon employees worked with asbestos in
the vicinity of Minton, with Minton's witnesses testifying only
that some of the Exxon employees' work might have included work
with asbestos. Exxon argues that Minton was unable to put
6 forward concrete evidence that any asbestos was being used in
repair work without the necessary controls while Minton was on
board the vessel. We disagree.
a. Control Over Specific Activities
In order to establish the duty of active control, "the
vessel must have substantially controlled or been in charge of
(i) the area in which the hazard existed; (ii) the
instrumentality which caused the injury; or (iii) the specific
activities the stevedore undertook." Davis v. Portline
Transportes Mar. Internacional, 16 F.3d 532, 540 (3rd Cir.
1994). Sufficient evidence of any one of the three components
triggers the duty of active control.
Regarding Exxon's control over the specific activities
that the Shipyard undertook, C. Lloyd Ware, a former estimating
supervisor for the Shipyard, testified that Exxon's port
engineer maintained "overall authority," leaving the Shipyard
unable to tell Exxon's crew working on the vessel what to do.
This exercise of authority was part of Exxon's designated
procedure, evidenced by a portion of Exxon's 1974 Repair
Procedures:
The Repair Inspector[, with the assistance of the officers and crew,] has the responsibility of supervising the overhaul. He issues all necessary instructions to the shipyard foremen, inspects the work to see that it is properly done and coordinates the necessary . . . inspections.
7 Moreover, Julian Draper, the Shipyard's pipefitter
foreman, explained in his testimony that the Shipyard's trade
foreman would contact Exxon's chief engineer, chief mate, or
port engineer after receiving the job orders for repairs on
Exxon's vessels to make sure that the Shipyard's personnel
understood the job order, and to assure that the job would be
completed to Exxon's satisfaction. Sometimes, as Draper
explained, the job orders would specifically require
consultation with the chief or port engineer before a job order
was commenced. When no such requirement was in place, the job
repair specifications, such as the 1975 job order which was
presented to the jury, nevertheless provided detailed
specifications for each step of each individual repair to be
completed by the Shipyard.
The evidence presented at trial as to Exxon's control over
the repair work was sufficient for a reasonable jury to find
that Exxon had a duty to Minton based on its control of the
specific activities undertaken by the Shipyard employees.
b. Presence of the Hazard
Not only was the evidence sufficient to show that Exxon
actively controlled the activities on its vessels, but the
evidence also supports the jury's finding that the hazard at
issue, asbestos, was present in the areas under Exxon's
control. Despite Exxon's argument that manufacturers were
8 using asbestos substitutes as early as 1971 because of
widespread knowledge of the health risks surrounding the use of
asbestos-containing materials, Minton presented evidence that
Exxon's vessels contained asbestos during the period of time
when Minton worked with Exxon at the shipyard. Notably, Minton
produced for the jury piecework orders for the Exxon New
Orleans, the newest vessel that Minton worked on during his
time as ship repair staff supervisor. In the orders, asbestos
blankets, asbestos plaster, and asbestos cloth are all listed
with frequency.
Multiple witnesses, including Draper, also testified to
the use of asbestos-containing materials on Exxon vessels
through the mid-1970s. Draper recounted the methods and
processes of using asbestos in the Exxon vessels, stating that
the use of asbestos and the methods of using asbestos was "the
way you did business" on the Exxon ships during the time he
worked with Minton. The evidence was therefore sufficient to
establish that Exxon had active control of the asbestos, a
hazard present on Exxon vessels during the 1966-1977 period
during which Minton was employed as ship repair staff
supervisor.
3. Duty to Intervene
The duty to intervene applies when a shipyard's judgment
is "obviously improvident," and the vessel owner both "knew of
9 the defect [or hazard] and that [it] was continuing to [be]
use[d]," and "should have realized the defect [or hazard]
presented an unreasonable risk of harm to the longshoremen."
Scindia, 451 U.S. at 175-76. In order to establish the duty to
intervene, Minton needed to show that:
the vessel owner ha[d] (1) actual knowledge that a dangerous condition exist[ed] and (2) actual knowledge that the stevedore or independent contractor, or its employees, [could not] be relied upon to remedy the condition, and that if unremedied it [would] pose a substantial risk of injury.
Lormand v. Superior Oil Co., 845 F.2d at 542.
Exxon claims that no evidence was presented to show that
any Exxon employee had actual knowledge that Minton was working
amid conditions that were obviously dangerous. Exxon argues
that Minton proved only that Exxon should have known about the
danger, but that this is not the standard to be applied to
establish a duty to intervene.
a. Actual Knowledge of the Dangerous Condition
The first step in establishing the presence of a duty to
intervene requires an evaluation of whether Exxon had actual
knowledge that a dangerous condition existed. James W.
Hammond, Exxon's director of industrial hygiene, testified that
the danger of pulmonary injury to humans from asbestos exposure
was known by 1934. Dr. Neill Kendall Weaver, Exxon's associate
medical director, stated in a deposition presented to the jury
10 that industrial hygienists were aware of the dangers of
asbestos exposure as early as the 1930s. He indicated that,
not only did Exxon know of the danger in the 1930s, but it also
took precautionary measures in its refineries to protect
workers from the harmful effect of asbestos.
Dr. Weaver testified that in the 1950s he became aware
that high exposures of asbestos were present in the
shipbuilding industry. According to Dr. Weaver, during the
1950s, Exxon's industrial hygienists took voyages on Exxon
vessels and reported their observations, including measurements
of the amount of asbestos dust present on the vessels during
the voyage.
Dr. Weaver further testified that the scientific community
was aware of the causal connection between asbestos and
mesothelioma by 1964. Significantly, Dr. R.E. Eckhardt,
Exxon's director of medical records, attended a three-day
conference in October, 1964, on the "Biological Effects of
Asbestos," sponsored by the Section of Biological and Medical
Sciences of the New York Academy of Sciences. The conference
would later come to be known as the Selikoff asbestos
conference. When he returned, Dr. Eckhardt wrote a summary of
the conference for Exxon, which was presented to the jury as
evidence of Exxon's knowledge. In this summary, after devoting
five pages to the many presentations detailing the harmful
11 effects of asbestos exposure, Dr. Eckhart gives his own
opinion:
I would say that this three-day conference clearly suggests that exposure to asbestos is a most serious situation [and] it is very important to eliminate all unnecessary exposure to asbestos dust in the future. . . . Certainly this appears to be a problem that cannot be taken lightly, and certainly it would seem that very careful control of exposures to asbestos throughout refinery operations should be instituted.
(Internal quotation marks omitted.) In his summary, he also
specifically recognized the danger asbestos posed to
bystanders, such as Minton, stating that "the foreman whose
exposure is presumably quite light does not develop asbestosis
but may in subsequent years go on to develop mesothelioma."
Not only did Minton's evidence show that Exxon was aware
that asbestos-containing products created dangerous working
conditions, Minton's evidence as discussed in Part II.A.2.b.,
supra, also established that Exxon's vessels did contain
asbestos throughout the period at issue, 1966-1977.
b. Actual Knowledge That the Shipyard Would Not Act, and That the Condition, if Unremedied, Would Pose a Substantial Risk of Injury
Minton also presented evidence of Exxon's actual knowledge
that the Shipyard could not be relied on to protect Minton,
thereby exposing him to the dangerous conditions present in an
asbestos-containing environment without the protection of
safety controls. A 1972 letter from T.J. McTaggart, Exxon's
12 head port engineer, to captains and chief engineers on Exxon
vessels prohibits the use of asbestos-containing materials on
vessels, mandating that "[p]ersons packing the cartons . . .
wear dust masks," and that "supplies of asbestos insulating
materials . . . be packed in . . . sealed [boxes] and marked
'Asbestos[:] Not To Be Used On This Vessel – Do Not Open Unless
A Dust Mask Is Worn.' "
Draper, the Shipyard's pipefitter foreman, testified that
he did not, however, see any Exxon crew members use asbestos
safety measures in the 1960s and 1970s, nor did he ever receive
a warning from the Exxon crewmembers that asbestos was
hazardous. Ware, the former estimating supervisor for the
Shipyard, testified that at no time prior to the late 1970s did
he see any signs warning against asbestos exposure or any
effort by Exxon crew members to isolate areas so that the
Shipyard workers would not be exposed to asbestos dust, to take
air samples, or to employ wet-down methods to hold down the
dust. Ware also testified that the Shipyard workers did not
have showers or clean clothes provided to them when they worked
around asbestos, nor did he see anyone, Exxon worker or
Shipyard worker, wearing a respirator when working with or
around asbestos products. Nor did he see any warnings or
barriers to protect the Shipyard workers. The testimony of Dr.
David Egilman, Minton's treating physician, emphasized the
13 extent of the danger created by these working conditions that
existed without any warning to the Shipyard workers,
analogizing the situation to a fire in a theatre to which no
one speaks a word of warning.
If accepted by the jury, the evidence of Exxon's knowledge
regarding the dangers of asbestos both before and during
Minton's employment at the Shipyard and the Shipyard's failure
to warn its workers or protect individuals such as Minton in
the presence of the danger was sufficient to establish Exxon's
actual knowledge of the failure of the Shipyard to take the
requisite steps to protect their employees. Thus, if Minton's
evidence was accepted by the jury, it would have been
sufficient for the jury to conclude that Exxon failed
unreasonably to protect Minton when the Shipyard had failed to
do so.
B. Sufficiency of the Evidence to Show Proximate Cause
Exxon's second challenge is to the sufficiency of the
evidence presented to establish that Exxon's breach of its duty
of care caused Minton's injury. The aforementioned standard of
review for a challenge to the sufficiency of the evidence
supporting a jury finding requires an "examin[ation of] the
evidence in the light most favorable to . . . the prevailing
party at trial" that is not to be disturbed unless "plainly
wrong or without evidence to support it." Nolte, 284 Va. at
14 90, 726 S.E.2d at 345 (internal quotation marks omitted); see
also Code § 8.01-680.
In arguing that the evidence was not sufficient to support
a finding of causation, Exxon claims that the inability of
Minton's medical experts to testify that Minton's prior
exposure to asbestos could not have, on its own, caused
Minton's mesothelioma precluded a finding that Exxon caused
Minton's injury. According to Exxon, because the experts
testified that Minton's prior work in vessel construction was
sufficient exposure to cause mesothelioma, any breach by Exxon
could not be established as the cause of Minton's subsequently-
diagnosed mesothelioma. Exxon argues that any finding of
causation would be based on mere conjecture.
We disagree with Exxon's argument and find that the
evidence was sufficient for a reasonable jury, as instructed,
to find that Exxon's actions were a substantial contributing
factor in causing Minton's injury. Although Minton's experts
did testify that Minton's prior exposure to asbestos could have
been, on its own, enough to cause mesothelioma, it is
established maritime law that "an injured party [may] sue a
tortfeasor for the full amount of damages for an indivisible
injury that the tortfeasor's negligence was a substantial
factor in causing." Edmonds v. Compagnie Generale
Transatlantique, 443 U.S. 256, 260 (1979). This is true "even
15 if the concurrent negligence of others contributed to the
incident." Id. Based on this principle, the jury was not
precluded from finding that Minton's exposure to asbestos
materials on Exxon's ships was a cause sufficient to establish
liability for Minton's resulting indivisible harm.
The question before the jury was therefore whether the
evidence was sufficient to show that Minton's exposure to
asbestos while on Exxon's vessels was a substantial
contributing factor in the development of Minton's injury,
mesothelioma. 1 To answer this question, the jury was given an
instruction that defined substantial, "not . . . by quantity
but [by] quality[, meaning] that the exposure aboard Exxon's
vessels was not an imaginary or possible factor or having only
an insignificant connection with the harm."
Based on this definition contained within an uncontested
instruction, the evidence regarding the presence of
1 We have today rejected the substantial contributing factor analysis of proximate causation in cases tried under Virginia law when multiple sufficient causation is alleged. Ford Motor Co. v. Boomer, 285 Va. ___, ___, ___ S.E.2d ___, ___ (2013) (this day decided). In the case at bar, however, the appropriate theory of causation is not before us. At trial, the substantial contributing factor theory of causation was presented to the jury in a jury instruction without objection by either party to the case. In the absence of a contemporaneous objection, "[r]ight or wrong, the instruction given [becomes] the law of the case on that point, and [is] binding upon both the parties and the jury." Hilton v. Fayen, 196 Va. 860, 867, 86 S.E.2d 40, 43 (1955). It cannot be questioned on appeal. Id.
16 uncontrolled asbestos aboard Exxon vessels and the testimony by
Minton's medical experts regarding the effect of such levels of
asbestos were sufficient to support a finding of causation. As
noted in Part II.A.2.b., supra, the evidence made clear that
asbestos, and repairs involving asbestos, were present on Exxon
vessels in the 1960s and 1970s. There was also evidence that
Minton visited the Exxon ships in the course of his employment
with the Shipyard, spending approximately half of every day
walking through the vessels. Exxon had seventeen vessels
docked at the Shipyard during the eleven year period that
Minton served as ship repair staff supervisor, when Minton
spent over one thousand days walking through the asbestos-
containing area. The evidence shows that Minton was not
protected from asbestos exposure through the use of safety
controls on any of those days, nor that he was aware of the
risk.
The testimony also included the details of daily repairs,
including a description of work on asbestos-containing areas of
the engine rooms of a vessel, which would include asbestos
insulation being "thrown on the deck," after which cleaners
would sweep the material, allowing the dust particles to
repeatedly fly into the air. Evidence was also presented
regarding the "taking out of valves" on the vessel, which
would, on a "case-by-case basis" require the removal of
17 asbestos insulation to reach the valve. Based on this
testimony and the extensive lists of asbestos-containing
materials installed on the vessels, there was sufficient
evidence to support a finding of significant asbestos exposure
to Minton, who was frequently present on the ships while
repairs were being completed.
Dr. Egilman and Dr. John Coulter Maddox, a pathologist who
has studied asbestos-related disease since the 1970s, testified
as to the link between the prevalence of asbestos on Exxon's
vessels and the injury to Minton. Both Dr. Egilman and Dr.
Maddox opined that the exposure to asbestos on Exxon's vessels
when work was performed on pumps insulated with asbestos
materials was a substantial contributing factor in Minton's
injury. Dr. Egilman opined that such work caused fibers of
asbestos to circulate around the vessel, reaching bystanders at
the time of repair. Dr. Egilman attributed Minton's injury, at
least in part, to his exposure as a frequent bystander during
the repair work.
Based therefore on the evidence of asbestos-containing
materials on the Exxon vessels in the 1960s and 1970s, Minton's
daily exposure to the asbestos, and the danger present in such
exposures, we agree with Minton that there was sufficient
evidence for a reasonable jury to find that Exxon's actions
were a substantial contributing factor in Minton's injury.
18 C. Exclusion of Evidence on the Shipyard's Knowledge
Exxon also assigns error to the circuit court's exclusion of
evidence regarding the Shipyard's knowledge of the danger of
asbestos exposure and its policies in place to protect the
Shipyard workers from the hazard. Exxon contends that, due to
the court's denial of its requests to introduce evidence about
the Shipyard's knowledge and safety measures, the jury was
given the false impression that Exxon had unique knowledge and
was therefore the only actor with the ability to protect Minton
from harm. Exxon argues that this error was highly prejudicial
and therefore warrants reversal.
Minton contends that the evidence is not relevant. He
argues that the sole purpose for admitting evidence of the
Shipyard's knowledge of the danger of exposure to asbestos-
containing materials was to direct blame at a statutorily
immune employer. 2 Furthermore, even if attributing blame to the
immune Shipyard was permitted, Minton claims that it would not
be relevant to Exxon's duty of care. Minton argues that the
two elements he needed to prove were that the Shipyard's
conduct was obviously improvident and that Exxon did nothing to
remedy it. As the Shipyard's knowledge was not relevant to
2 The Supreme Court has held, consistent with the Congressional intent underlying 33 U.S.C. § 905(b), that no attribution of liability may be made, either directly or indirectly, against a longshoreman's statutory employer. Edmonds, 443 U.S. at 263, 270 n.8.
19 either of these two elements of proof, Minton contends that it
was properly excluded. We disagree.
When reviewing the discretionary exclusion of evidence by
a trial court, the decision "will not be overturned on appeal
absent evidence that the trial court abused [its] discretion."
May v. Caruso, 264 Va. 358, 362, 568 S.E.2d 690, 692 (2002)
(citation omitted). An abuse of discretion can occur when "a
relevant factor that should have been given significant weight
[was] not considered." Landrum v. Chippenham & Johnston-Willis
Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)
(internal quotation marks omitted).
As described in Part II.A., supra, the 1972 amendments to
the LHWCA as interpreted by the Supreme Court of the United
States in Scindia established the standard of care owed by a
vessel owner to an injured worker. The three duties are the
aforementioned "turnover duty," duty of "active control," and
"duty to intervene." Howlett, 512 U.S. at 98; see also
Scindia, 451 U.S. at 167-78.
The turnover duty is violated by the actions of the vessel
owner, applicable when the owner fails to turn the vessel over
free of "hidden dangers" and without any warning of dangers
that do exist. Scindia, 451 U.S. at 167. The second duty, the
active control duty, is also based on the vessel owner's
actions. It is violated if the vessel owner fails to "exercise
20 reasonable care to prevent injuries to longshoremen in areas
that remain under the active control of the vessel." Howlett,
512 U.S. at 98 (internal quotation marks and citation omitted).
The duty to intervene, the third duty, requires that the vessel
owner have "actual knowledge that an unsafe condition exists
and that the stevedore is allowing that condition to continue,"
leaving the vessel owner under a duty to intervene if the
stevedore, or shipyard, is "obviously improvident" in failing
to remedy the danger. Elberg v. Mobil Oil Corp., 967 F.2d
1146, 1150 (7th Cir. 1992) (internal quotation marks and
citation omitted).
Although all three duties are based in whole or in part on
a vessel owner's acts or omissions, the duty to intervene
stands alone in relying in part on the acts or omissions of the
plaintiff's employer in improvidently allowing an unsafe
condition to go unremedied. In order for a jury to determine
whether the evidence was sufficient to show that the vessel
owner unreasonably failed to intervene in the face of a
shipyard's failure to act, evidence is admissible to show that
there was a basis for the vessel owner not to rely on the
shipyard to provide the necessary protective measures. This is
a crucial consideration because the shipyard has the duty to
"provide a reasonably safe place to work and to take safeguards
necessary to avoid injuries," and a vessel owner may rely upon
21 the shipyard's concomitant responsibility to avoid exposing its
employees to unreasonable hazards. Howlett, 512 U.S. at 101
(citing Scindia, 451 U.S. at 170); see 33 U.S.C. § 941. The
vessel owner can rely upon the shipyard's "expertise and
reasonableness," Duplantis v. Zigler Shipyards, Inc., 692 F.2d
372, 374 (5th Cir. 1982), as the shipyard is "in the best
position to avoid accidents during cargo operations." Howlett,
512 U.S. at 101 (internal quotation marks omitted). The
shipowner has "justifiable expectations that those duties" will
be performed by the repair company without the shipowner's
supervision. Scindia, 451 U.S. at 176.
In order to establish a vessel owner's duty to intervene,
a jury must be able to consider evidence of the employer's
knowledge of the danger and ability to protect the employee.
Until it is shown that the employer, who is presumed to have a
higher level of expertise than the vessel owner, lacked the
knowledge, intent, or ability to protect the employee, no duty
to intervene can be attributed to the vessel owner, who "has no
duty to anticipate inaction or carelessness of a ship
repairer." Bergeron v. Main Iron Works, Inc., 563 So.2d 954,
957, 959 (La. Ct. App. 1990) (citation omitted). It is only if
there is sufficient evidence that the vessel owner could not
rely on the employer or its expertise that the vessel owner,
"if it has actual knowledge, is required to overrule the ship
22 repairer's judgment and correct the hazard." Id. (citation
omitted).
The circuit court found the Shipyard's knowledge of the
danger of exposure to asbestos and its ability and intent to
remedy that danger irrelevant. We hold, however, that evidence
tending to show the Shipyard's knowledge of the danger and its
ability and intent to remedy the danger is relevant in the
determination of whether Exxon had a duty to intervene to
protect Minton. Exxon's proffered evidence of the Shipyard's
knowledge, intent, or ability to protect Minton through
programs created by the Shipyard included: annual physicals
for workers, the use of respirators when working with
insulation projects, and the application of wet-down techniques
to keep asbestos fibers from becoming airborne. Such evidence
was relevant to the jury's determination of whether the
existence of these programs supported Exxon's argument that it
had no duty to intervene because Exxon would have been acting
reasonably in relying upon the Shipyard to adequately protect
the Shipyard's own workers.
We therefore hold that the trial court erred in refusing
to admit evidence of the Shipyard's knowledge of the dangers of
asbestos exposure and its procedures regarding precautions to
be taken around asbestos, whether or not implemented. Although
we have determined that the evidence that Minton presented, if
23 accepted by the jury, was sufficient to support a verdict for
Minton based upon a violation of Exxon's duty to intervene, we
cannot say that the jury would still have concluded that Exxon
violated the duty if it was presented with the excluded
evidence. Whether Exxon violated its duty to intervene was one
of the two potential bases for the verdict in favor of Minton.
Because we cannot determine from the record whether the jury
found in favor of Minton based upon the duty to intervene
without the opportunity to consider the excluded evidence, or
because of Exxon's violation of the active control duty, we
will reverse the judgment of the circuit court.
D. Punitive Damages
Finally, Exxon challenges the award of punitive damages,
basing its argument on the language of 33 U.S.C. § 905(b),
which it argues forecloses the remedy. Exxon contends that, by
stating that the allowance under the LHWCA for recovery against
a vessel owner for negligence is "exclusive of all other
remedies against the vessel," 33 U.S.C. § 905(b), the statute
eliminates the ability of a court to supplement the statute's
provided remedies.
Minton argues that the award of punitive damages was not
contrary to the statutory language of 33 U.S.C. § 905(b), which
he claims does not address damages at all. Without any express
language departing from the common law understanding, Minton
24 argues that the common law must be applied. As a result,
Minton contends that punitive damages, which were available at
common law and have been extended to federal maritime claims,
should be affirmed in the case at hand.
We recognize that a number of courts have allowed punitive
damages in accordance with Minton's reading of the statute,
holding that 33 U.S.C. § 905(b) is silent as to availability of
punitive damages. See, e.g., Kahumoku v. Titan Mar., LLC, 486
F.Supp.2d 1144, 1151 (D. Haw. 2007) (finding the language of 33
U.S.C. § 905(b) silent "as to punitive damages[,] indicat[ing]
Congress' intent for the remedy to remain available under
maritime law"); Wheelings v. Seatrade Groningen, BV, 516
F.Supp.2d 488, 496 (E.D. Pa. 2007) (stating that "[because] the
LHWCA is silent on the availability of punitive damages, the
court follows general maritime law").
We reject this interpretation of 33 U.S.C. § 905(b) as
contrary to the statute's plain language. In making this
determination, we review this question of law de novo. David
White Crane Serv. v. Howell, 282 Va. 323, 327, 714 S.E.2d 572,
575 (2011). The Supreme Court of the United States has
established that "the general rule that punitive damages were
available at common law extended to claims arising under
federal maritime law." Atlantic Sounding Co. v. Townsend, 557
U.S. 404, 411 (2009). This remedy was applied with frequency
25 in lower federal courts "for tortious actions of a particularly
egregious nature," thereby establishing itself as a recognized
and often-applied remedy. Id. at 411-12. Accordingly, the
common law remedy of punitive damages in the context of federal
maritime law claims can be denied only if "Congress has enacted
legislation departing from this common-law understanding." Id.
at 415.
The LHWCA constitutes legislation that explicitly departs
from the general rule under common law that punitive damages
are an available remedy in federal maritime law claims. The
language of 33 U.S.C. § 905(b) states, in relevant part:
In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title. . . . The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this [Act].
(Emphasis added.) The plain language of the statute clearly
limits the remedies available for a negligence action under the
LHWCA to those included within the terms of the statute. We
have previously held that "[w]here the legislature has used
words of plain and definite import the courts cannot put upon
them a construction which amounts to holding the legislature
did not mean what it has actually expressed." Barr v. Town &
26 Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674
(1990). Consequently, as punitive damages are not a remedy
made available within the terms of the LHWCA, and the language
plainly restricts the damages to those remedies explicitly made
available, they are extinguished as a category of recovery in
LHWCA claims. See Miller v. American President Lines, Ltd.,
989 F.2d 1450, 1457 (6th Cir. 1993) (stating that "[t]his
statute creates a worker's compensation scheme for certain
maritime workers which is exclusive of other remedies and does
not provide for punitive damages"); McConville v. Reinauer
Transp. Cos., 835 N.Y.S.2d 711, 713 (N.Y. App. Div. 2007)
(indicating that "[p]unitive damages are not available in an
action brought pursuant to the LHWCA"); Welsh v. Fugro
Geosciences, Inc., 804 So.2d 710, 716-17 (La. Ct. App. 2001)
(recognizing the "trend in federal jurisprudential and
statutory law to bar claims for nonpecuniary loss," including
punitive damages) (internal quotation marks omitted).
Thus, we hold that the award of $12,500,000 in punitive
damages was inappropriately granted because punitive damages
are a remedy prohibited by the terms of LHWCA.
III. Conclusion
For the aforementioned reasons, we will reverse the
judgment of the circuit court based on its exclusion of
relevant evidence regarding the Shipyard's knowledge of the
27 danger of asbestos exposure and its ability to remedy the
danger, and remand for further proceedings consistent with this
opinion. We will also reverse the circuit court's award of
punitive damages and enter final judgment as to that claim.
Reversed and remanded.
JUSTICE MCCLANAHAN, with whom JUSTICE POWELL joins, concurring in part and dissenting in part.
I agree with the majority's holdings that Minton presented
sufficient evidence to prove Exxon violated the second and
third Scindia duties, i.e., the active control duty and the
duty to intervene. I disagree with the majority's conclusion,
however, that the trial court erred in excluding evidence of
the Shipyard's purported "knowledge of the dangers of asbestos
exposure and its policies in place to protect the Shipyard
workers from the hazard." In light of Minton's proof that
Exxon had a duty to intervene, the Shipyard's asbestos-related
knowledge and policies were irrelevant to Exxon's duty to
protect shipyard workers on its ships.
I also disagree with the basis for the majority's reversal
of Minton's award of punitive damages. Title 33 U.S.C. 905(b)
of the Longshore and Harbor Workers' Compensation Act (LHWCA)
does not preclude as a matter of law a shipyard worker from
seeking to recover punitive damages in a negligence action
against a shipowner.
28 1. Shipyard's Knowledge and Policies
The Scindia duty to intervene is violated if the shipowner
(i) fails to intervene when it knows of an unreasonably
dangerous condition that has developed during the course of an
independent contractor's shipboard operations; and (ii) it
knows that the contractor "improvident[ly]" intends to continue
those operations in the face of the danger and thus cannot be
relied upon to protect its workers. Scindia Steam Navigation
Co. v. De Los Santos, 451 U.S. 156, 175-76 (1981).
I agree with the majority's conclusion in Part II.A. of
its opinion that Minton presented sufficient evidence to prove
Exxon violated this duty based on evidence of the following:
(i) Exxon's knowledge, dating back to the 1930's, of the
hazards posed by asbestos exposure from asbestos-containing
products like those located throughout its ships; and (ii)
Exxon's knowledge that, during the eleven year period Minton
worked aboard Exxon's ships, the Shipyard took no asbestos
control measures, and "could not be relied on," to protect its
workers, including Minton, from asbestos exposure when
conducting repairs on Exxon's ships.
However, after reaching that conclusion, the majority
concludes in Part II.C. that the Shipyard's asbestos-related
knowledge and policies, which were excluded from evidence, were
29 relevant to "whether Exxon had a duty to intervene." Those two
conclusions are, in my opinion, patently inconsistent.
Evidence of such knowledge or policies of the Shipyard
would not have changed the uncontroverted fact at trial that
the Shipyard did not act for eleven years to protect its
workers, including Minton, from the hazards of asbestos
exposure when aboard Exxon's ships. And, it was that course of
Shipyard inaction that triggered Exxon's ongoing duty to
intervene to protect those workers in light of the jury's
necessary finding regarding Exxon's own knowledge of the
hazardous circumstances. That duty could not then be negated
by Exxon pointing to evidence of what the Shipyard may have
known about the hazards of such exposure, or policies the
Shipyard may have had "to protect the Shipyard workers from the
hazard" when no such policies were being implemented by the
Shipyard. To be relevant, evidence must have a logical
tendency to prove a fact at issue in the case. Harrell v.
Woodson, 233 Va. 117, 122, 353 S.E.2d 770, 773 (1987). On the
facts here, the Shipyard's actual asbestos-related knowledge
and policies had no logical relation to the issue of Exxon's
own knowledge of the circumstances giving rise to its duty to
intervene. Exxon's proffered evidence of the Shipyard's
knowledge and policies was, therefore, irrelevant relative to
Exxon's duty to act.
30 In deciding the relevancy of the proffered evidence, the
majority correctly states that a shipowner has no duty to
anticipate inaction on the part of a shipyard regarding the
protection of its workers. The majority further asserts,
however, that no duty to intervene can be attributed to the
shipowner until it is shown that the shipyard "lacked the
knowledge, intent, or ability to protect" its own workers. No
part of that assertion is consistent with the Scindia standard
for the duty to intervene. In the face of the shipyard's
inaction to protect its workers from an unreasonably dangerous
condition that has developed during shipboard operations, it
matters not whether the shipyard had the knowledge, intent or
ability to protect its workers. In that instance, it is self-
evident that the shipyard cannot be relied upon to do so, thus
triggering the shipowner's duty to intervene on behalf of those
workers to the extent the shipowner becomes aware of the
hazardous circumstances. At that point, the fact that the
shipowner initially had no duty to anticipate the shipyard's
inaction is not a relevant consideration.
I would therefore hold that the trial court did not abuse
its discretion in excluding Exxon's proffered evidence
regarding the Shipyard's asbestos-related knowledge and
policies. See John Crane, Inc. v. Hardick, 283 Va. 358, 367,
722 S.E.2d 610, 614 (2012) ("[W]e will not disturb a trial
31 court's evidentiary ruling absent an abuse of discretion."
(citation and internal quotation marks omitted)).
2. Punitive Damages Award
Contrary to the majority, I would hold that a shipyard
worker such as Minton, i.e., a worker covered under the LHWCA
(33 U.S.C. §§ 901-950), is permitted as a matter of law to seek
punitive damages under 33 U.S.C. 905(b) in a negligence action
against a shipowner such as Exxon.
Section 905(b), which was added by amendment in 1972,
provides in pertinent part:
Negligence of vessel. In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly. . . . The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this [Act].
33 U.S.C. § 905(b).
Prior to 1972, a covered worker had a maritime law claim
"against the shipowner if [his] injury was caused by the ship's
unseaworthiness or negligence," Scindia, 451 U.S. at 164.
While the addition of § 905(b) to the LHWCA by the 1972
amendments "abolished" the worker's right to recover for
32 unseaworthiness, "his right to recover from the shipowner for
negligence was preserved in § 905(b)." Id. at 165 (emphasis
added).
A " 'tort of negligence' " claim under general maritime
law has been recognized " 'for more than a century.' " Atlantic
Sounding Co. v. Townsend, 557 U.S. 404, 421 (2009) (quoting
Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811,
820 (2001)). At the same time, federal courts have recognized
that punitive damages are "available in maritime actions for
tortious acts of a particularly egregious nature." Id. at 411.
See Lake Shore & Michigan Southern Ry. Co. v. Prentice, 147
U.S. 101, 108 (1893) ("[C]ourts of admiralty . . . proceed, in
cases of tort, upon the same principles as courts of common
law, in allowing exemplary damages . . . ."); see also Powers
v. Bayliner Marine Corp., 855 F.Supp. 199, 202-03 (W.D. Mich.
1994) ("In admiralty jurisdiction, where Congress has not
spoken, the general maritime law, 'an amalgam of traditional
common law rules developed by the judiciary, applies.' "
(quoting East River S.S. Corp. v. Transamerica Delaval, Inc.,
476 U.S. 858, 864-65 (1986)).
Congress did not indicate in § 905(b), when preserving the
shipyard worker's negligence action against the shipowner, that
it was nevertheless excluding the right of the worker to seek
punitive damages as part of that claim. Indeed, § 905(b) is
33 silent as to the type of damages that may be recovered; it
merely states: "In the event of injury to a person covered
under this Act caused by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover damages by
reason thereof, may bring an action against such vessel[.]"
Furthermore, the House Report accompanying the 1972
amendments to the LHWCA did not give any such indication. The
House Report stated that "nothing in this bill is intended to
derogate from the vessel's responsibility to take appropriate
corrective action where it knows or should have known about a
dangerous condition." H.R. Rep. No. 92-1441 (1972). The House
Report then explained that the issue of whether the vessel was
negligent "can only be resolved through the application of
accepted principles of tort law and the ordinary process of
litigation - just as they are in cases involving alleged
negligence by land-based third parties." Id. (Emphasis
added.)
We are also aided in our construction of § 905(b) by a
long-standing principle of statutory construction under federal
law: "No statute is to be construed as altering the common law,
farther than its words import." Shaw v. Railroad Co., 101 U.S.
557, 565 (1879). Reflective of this principle, the United
States Supreme Court recently held in Townsend that punitive
damages are available under general maritime law except where
34 they have been eliminated by "legislation departing from [the]
common-law understanding" that punitive damages extend to
maritime claims. Townsend, 557 U.S. at 414-15. Consistent
with Townsend, at least one federal court addressing the
instant statutory construction issue has held that punitive
damages are allowable under § 905(b). Kahumoku v. Titan Mar.,
LLC, 486 F.Supp. 2d 1144, 1151-52 (D. Haw. 2007). See also
Thomas J. Shoenbaum, Admiralty and Maritime Law § 5-10 at 439-
40 (5th ed. 2012) (indicating that punitive damages are
allowable under § 905(b)).
The majority points to the last sentence of § 905(b) as
the basis for concluding that punitive damages are precluded
under this subsection as a matter of law. Without dispute, the
last sentence of § 905(b) does limit a covered worker's
"remedy" against a shipowner to a negligence action. That
sentence expressly states: "The remedy provided in this
subsection [a negligence action] shall be exclusive of all
other remedies against the vessel except remedies available
under this Act." But that language does not limit in any way
the damages that the covered worker may seek when bringing his
negligence tort action against the shipowner. A statutory
"restriction on the remedies available" to an injured party is
not a restriction on "damages." Kosar v. Chesapeake and Ohio
Rwy. Co., 449 F.2d 1238, 1240 (6th Cir. 1971). "There is an
35 important distinction between a 'remedy' which Bouvier's Law
Dictionary defines as 'the means employed to enforce a right or
redress an injury,' and 'damages' which are defined as 'the
indemnity recoverable by a person who has sustained an injury
. . . and the term includes not only compensatory, but also
exemplary or punitive or vindictive . . . damages.' " Id. It
is thus a "misuse of the legal terminology" to refer to
punitive damages as a remedy or right of action. Id.
Section 905(b) does not contain language that should be
construed as an explicit departure from the common law
tradition of allowing a party to pursue punitive damages in a
maritime claim; and the legislative history, in fact, indicates
that courts are to continue to adhere to the common law of
torts in adjudicating such claims under § 905(b). I would
accordingly allow Minton to seek punitive damages upon the
remand of this case for further proceedings if he be so
advised.