Present: All the Justices
GARLOCK SEALING TECHNOLOGIES, LLC
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 050002 November 4, 2005
MICHAEL LITTLE, EXECUTOR OF THE ESTATE
OF ZEBULON A. LITTLE, JR.
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge
I.
The primary issue that we consider in this appeal is
whether federal maritime principles apply to plaintiff's cause
of action against a manufacturer of products used during the
construction and repair of submarines situated in navigable
waters.
II.
Zebulon A. Little, Jr., filed his motion for judgment
against Garlock Sealing Technologies ("Garlock Sealing") and
14 other defendants. Plaintiff alleged in his motion that he
was exposed to asbestos contained in products manufactured by
Garlock Sealing and that he contracted mesothelioma as a
result of such exposure. Little died before trial and his
action was revived as a wrongful death action by the executor
of his estate, hereinafter referred to as plaintiff.
Prior to trial, plaintiff settled, nonsuited, or
dismissed his claims against all defendants except Garlock
Sealing. Plaintiff proceeded against Garlock Sealing, the
sole defendant.
Plaintiff presented the following evidence at a jury
trial. Little began work as a machine installation worker at
the Newport News Shipbuilding and Drydock Company in April
1961. He left his employment at the Newport News Shipbuilding
and Drydock Company in December 1963 and served in the United
States Marine Corps. He returned to the Newport News
Shipbuilding and Drydock Company in February 1968 and resumed
his duties as a machine installation worker.
Little performed repairs on submarines, and he worked on
construction of submarines that were located on the navigable
waters of the James River. The submarines were moored to the
piers owned by the Newport News Shipbuilding and Drydock
Company. He worked for almost a year on a project that
overhauled the submarine named the Shark. He also performed
work on the following vessels: the Henry Clay, the John
Marshall, the Sam Houston, the Sam Rayburn, the Hunley, and
the Thomas Jefferson.
Little installed and repaired valves and replaced packing
in valves to prevent or repair leaks. He also installed and
replaced gaskets on flanges. A flange is a connection between
two sections of pipe, and a gasket is used to seal that
connection.
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On a daily basis, Little constructed gaskets from sheets
of gasket material by cutting the material to a desired size
with a knife or saw, punching holes in the gaskets, and
grinding the edges of the gaskets. The creation of the
gaskets created visible airborne dust that contained asbestos.
This dust covered Little's hands and clothing, and he inhaled
asbestos-laden dust. Garlock Sealing manufactured the
material that Little used to create the gaskets.
Little was also exposed to asbestos when he repaired or
replaced gaskets or packing. He removed asbestos pipe
covering that was attached to valves or flanges. The removal
of these materials, which were not manufactured by Garlock
Sealing, caused Little to be exposed to asbestos dust.
Little contracted mesothelioma, which is a fatal form of
cancer in the lining of the lungs or stomach. Mesothelioma is
"a signal tumor" for asbestos exposure, and there is
"virtually no other cause of mesothelioma." Mesothelioma has
a latency period of 15 to 50 years or more following the first
exposure to asbestos fiber.
Even though Garlock Sealing was the only defendant at
trial, Garlock Sealing presented evidence that Little had been
exposed to asbestos contained in products that had been
manufactured or distributed by other entities. Garlock
Sealing, over plaintiff's objection, requested that the jury
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apportion damages among several entities that had manufactured
products that contained asbestos that Little may have
encountered when he worked on submarines, including three
entities that were bankrupt. Some of these manufacturers of
products that contained asbestos were not defendants in the
circuit court and other manufacturers settled with plaintiff
before trial. The circuit court permitted the jury to
apportion damages among Garlock Sealing, manufacturers who
settled before trial, and manufacturers who were never parties
to this litigation.
The jury returned a verdict for the plaintiff in the
amount of $467,818.59 and apportioned 30% of the damages to
Garlock Sealing and 29% of the damages to three entities that
were bankrupt. The circuit court entered a final judgment
that required that Garlock Sealing pay the 29% of damages
apportioned to the bankrupt entities as well as the 30% of
damages apportioned to Garlock Sealing. Thus, Garlock
Sealing's total liability was 59% of the verdict or
$276,012.96. Garlock Sealing appeals.
III.
A.
Garlock Sealing assigned the following error in its
brief: "The trial court erred in allowing evidence that
Garlock Sealing was responsible for other manufacturers'
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products." However, in its brief, Garlock Sealing argues that
a manufacturer of a product has no duty to warn of the dangers
or defects of products manufactured by others. We will not
consider this assignment of error because Garlock Sealing's
legal argument in its brief – whether the circuit court
improperly imposed certain legal duties against Garlock
Sealing – is different from its assignment of error that
challenges whether the circuit court properly admitted certain
evidence. See Rule 5:17(c).
B.
Garlock Sealing argues that maritime principles of law
should not control the resolution of plaintiff's claims
because purportedly Little's exposure to "asbestos-containing
products while working aboard ships either pre- or post-
launch, has no effect on maritime activities." Continuing,
Garlock Sealing asserts that because of "the uncertainty of
contracting disease following exposure and the latency between
exposure and disease, there can be no relationship between the
alleged tort of negligent failure to warn and/or breach of
warranty by an asbestos product manufacturer and traditional
maritime activity." We disagree with Garlock Sealing.
A litigant seeking the application of federal maritime
tort law must satisfy both a locality test, demonstrating that
the alleged negligence occurred on the navigable waters of the
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United States, and a nexus test, demonstrating that the wrong
bears a significant relationship to traditional maritime
activity and has a potentially disruptive impact upon maritime
commerce. Jerome B. Grubart, Inc. v. Great Lakes Dredge &
Dock Co., 513 U.S. 527, 534 (1995); Matthews v. Commonwealth,
253 Va. 180, 182, 482 S.E.2d 810, 811-12 (1997); Mizenko v.
Electric Motor & Contracting Co., 244 Va. 152, 156, 419 S.E.2d
637, 640 (1992) (citing East River S.S. Corp. v. Transamerica
Delaval Inc., 476 U.S. 858, 863-64 (1986)).
The Supreme Court held in Sisson v. Ruby, 497 U.S. 358,
364 (1990), that in order to determine whether an activity has
a significant relationship to a traditional maritime activity
and a potentially disruptive impact on maritime commerce, the
relevant activity is not defined by the particular
circumstances of the incident. Rather, the relevant activity
is determined by the general conduct from which the incident
arose.
The record in the case before this Court shows that
Little performed work with gaskets on at least 10 submarines
lying in navigable waters and that he was injured while
performing this work. The installation and maintenance of
these gaskets was necessary to enable the submarines to
operate properly. The Supreme Court has uniformly and
consistently held that ship repair is a maritime activity.
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John Baizley Iron Works v. Span, 281 U.S. 222, 232 (1930);
Messel v. Foundation Co., 274 U.S. 427, 432 (1927); Robins Dry
Dock & Repair Co. v. Dahl, 266 U.S. 449, 457 (1925); Great
Lakes Dredge & Dock Co. v. Kierejewski, 261 U.S. 479, 480-81
(1923). We hold that plaintiff's cause of action is governed
by maritime tort principles. Plaintiff has shown that:
Garlock Sealing's tortious acts or omissions were a proximate
cause of Little's injuries; that the acts or omissions
occurred on navigable waters; that the acts or omissions had a
significant connection with maritime activity; and that
Garlock Sealing's tortious conduct has a potentially
disruptive impact upon maritime commerce.
We find no merit in Garlock Sealing's argument that its
wrongful act and the manifestation of injury in Little were
not sufficiently close in time to satisfy the exercise of
admiralty jurisdiction. The Supreme Court specifically
rejected this argument in Grubart. 513 U.S. at 536-38.
In Grubart, the City of Chicago hired a contractor to
replace wooden pilings around the piers of certain bridges
spanning the Chicago River. In 1991, the contractor replaced
the pilings. Approximately seven months later, an eddy formed
in a river near a bridge, and the walls and ceiling of a
freight tunnel that extended beneath the river collapsed,
thereby causing a flood. The Supreme Court rejected the
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City's argument that admiralty jurisdiction did not lie
because the damage must be close in time and space to the
activity that caused the damage. The Court stated that in
admiralty jurisdiction, the classic principles of proximate
causation are applicable, and the use of proximate causation
principles "should obviate not only the complication but even
the need for further temporal or spatial limitations" between
the defendant's negligence and damage caused by that act. 513
U.S. at 536. See also id. at 538.
We also note that in Mizenko, we held that a pipefitter
who inhaled toxic solvent fumes while engaged in ship repair
aboard a vessel lying in navigable waters could assert a
maritime tort claim. 244 Va. at 156. The facts of this case
are distinguishable from those of Mizenko only on the basis
that the harm resulting from Little's injury was not immediate
– a distinction that the Supreme Court rejected in Grubart.
Grubart, 513 U.S. at 535-38.
C.
Garlock Sealing argues that the circuit court erred in
its apportionment of damages. Garlock Sealing asserts that
pursuant to principles of maritime law, damages are assessed
according to the percentage of fault assigned by a jury and
that principles of joint and several liability do not apply.
Continuing, Garlock Sealing claims that once the jury
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apportioned fault to three bankrupt insolvent entities, the
circuit court erred by requiring that Garlock Sealing
compensate the plaintiff for damages apportioned to those
insolvent entities.
We will not consider Garlock Sealing's contentions. We
note that the procedural posture of this case is very unusual.
As we have already stated, Garlock Sealing, over the
plaintiff's objections, convinced the circuit court to permit
the jury to apportion fault among certain entities that were
not parties to this litigation. We will not permit Garlock
Sealing to obtain an apportionment of liability among itself
and 10 entities that were not parties to this litigation and
then complain about the method of apportionment. As we have
repeatedly stated, "no litigant . . . will be permitted to
approbate and reprobate – to invite error . . . and then to
take advantage of the situation created by his own wrong."
Cohn v. Knowledge Connections, Inc., 266 Va. 362, 367, 585
S.E.2d 578, 581 (2003) (quoting Fisher v. Commonwealth, 236
Va. 403, 417, 374 S.E.2d 46, 54 (1988)); Hansen v. Stanley
Martin Cos., 266 Va. 345, 358, 585 S.E.2d 567, 575 (2003). We
also observe that we have serious reservations whether federal
maritime principles permit a court to enter a judgment
reflecting a jury's apportionment of damages among entities
who were never named defendants in the lawsuit before the
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court and from whom plaintiff has received no compensation for
his injuries.*
For the foregoing reasons, we will affirm the judgment of
the circuit court.
Affirmed.
*
The Supreme Court has held that the principle of joint
and several liability is applicable in admiralty jurisdiction
and that principle was not abrogated by the proportionate
share approach rule. And, we note, that the Supreme Court
stated that this principle can result in "one defendant's
paying more than its apportioned share of liability when the
plaintiff's recovery from other defendants is limited by
factors beyond the plaintiff's control, such as a defendant's
insolvency." McDermott, Inc. v. AmClyde, 511 U.S. 202, 220-21
(1994).
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