No Pro-Tanto Credit in Maritime Asbestos Case: Another E.D. La. Judge Denies Insurer’s MSJ
Marsh v. The Continental Insurance Company, 2023 U.S. Dist. LEXIS 50100 *, 2023 WL 2632798 (E.D. La. March 24, 2023, Guidry, J.)
Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana in Hutchins v. Anco Insulations, Inc.[1] first addressed the issue of pro-tanto credit as opposed to apportionment of damages in a Jones Act, maritime law asbestos suit involving multiple claimants and defendants. In Hutchins as in Marsh, the subject of this note, Continental Insurance Company as successor in interest to The Marine Office of America Corporation, the insurer of Lykes Bros. Steamship Company and employer of the decedent, sought summary judgment seeking a pro-tanto, that is, dollar for dollar credit, for any sums the claimant received or may in the future receive “from asbestos trusts or settlements with other companies.”[2]
As in the Hutchins matter, Continental urged the court to follow the precedent of the U.S. Court of Appeals for the Seventh Circuit in Schadel v. Iowa Interstate R.R., Ltd.[3] Judge Guidry, however, chose to follow the lead of Judge Barbier in Hutchins who analyzed the Schadel decision and found its reasoning flawed.[4] The U.S. Supreme Court in United States v. Reliable Transfer Co, Inc.[5] abandoned the divided damages rule in maritime collision cases adopting a proportionate fault rule for assessing damages and extended the applicability of the proportionate damage rule in McDermott, Inc. v. Amclyde[6] to other maritime torts. The pro-tanto rule should only be applied in cases in which “proportionate fault could not be reasonably allocated.”[7]
Hence the pro-tanto approach will not be applied. The Motion was denied.
[1] 2022 U.S. Dist. LEXIS 158002 *; 2022 WL 3998694 (E.D. La. 2022).
[2] 2023 WL 2632798 at *1.
[3] 381 F.3d 671 (7th Cir. 2004).
[4] Hutchins, 2022 U.S. Dist. LEXIS 158002 at *21-22.
[5] 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975).
[6] 511 U.S. 202, 114 S.Ct. 1461, 128 L.Ed.2d 148 (1994).
[7] 2023 WL 2632798 at *2 citing Amclyde.
