NEW ORLEANS – A federal judge won’t dismiss an indemnity action as part of a larger wrongful death lawsuit involving CertainTeed Corp.
In January 2019, Pennsylvania-based CertainTeed Corp. filed a motion seeking declaratory judgment against Dorothy Mayfield, of Louisiana, connected to the 2016 death of her husband, CJ Mayfield. According to that motion, the Mayfields resolved a personal injury lawsuit with CertainTeed before his death, including an agreement the Mayfields would indemnify the company in any subsequent claims connected to asbestos exposure that allegedly contributed to Mayfield’s malignant squamous cell carcinoma.
In its motion, CertainTeed said that agreement means Dorothy Mayfield should cover its obligations in an Orleans Parish wrongful death action in which her children are plaintiffs. Mayfield later joined that action as a plaintiff against defendants aside from CertainTeed.
In arguing to have CertainTeed’s motion dismissed or stayed, Mayfield said the agreement doesn’t apply to wrongful death claims brought by her adult children, who were not signees to the release resolving the personal injury claim. In an opinion filed April 23, U.S. District Judge Wendy Vitter, of the Eastern District of Louisiana, denied Mayfield’s request.
The release agreement, Vitter noted, stipulated the Mayfields executed the deal “on our behalf and also on behalf of our administrators, assigns, executors, heirs and representatives.” Further, because of the clause covering “any and all claims, demands, cause of action” related to asbestos exposure, regardless of the moving party, CertainTeed’s filing survived a motion to dismiss, the ruling states.
Vitter also rejected Mayfield’s alternative request to stay CertainTeed’s proceeding until the wrongful death litigation concludes in state court.
“...A stay is not warranted because this case and the state court case are not parallel proceedings,” Vitter wrote. “Although Mrs. Mayfield and CertainTeed are also parties in the state court proceeding and the state court could determine whether Mrs. Mayfield has a duty to defend CertainTeed against the wrongful death claims under the release, that issue has not been raised in the state court proceeding.”
However, Vitter rejected CertainTeed’s motion for summary judgment. She said there is no support for CertainTeed’s assertion summary judgment is allowable under a motion to dismiss and declined to consider the company’s request.
CertainTeed is represented in the matter by lawyers from Deutsch Kerrigan of New Orleans.