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JOHNSON v. NATIONAL STEEL & SHIPBUILDING CO.

March 18, 1991

CARGE JOHNSON, JR., et al., Plaintiffs,
v.
NATIONAL STEEL & SHIPBUILDING COMPANY, et al., Defendants. AND ALL CONSOLIDATED ACTIONS



The opinion of the court was delivered by: GILLIAM

 EARL B. GILLIAM, UNITED STATES DISTRICT JUDGE

 On November 13, 1990, plaintiffs' motion to amend complaints and for partial summary judgment, defendant National Steel and Shipbuilding Company's ("NASSCO") motion to dismiss amended cross claims, and defendant Cleveland Machine Controls' ("CMC") motion for leave of court to file counterclaims and cross-claims came on for hearing before the Honorable Earl B. Gilliam. Virginia C. Nelson and Kathleen Cuffaro appeared for the Estrella and Delgadillo plaintiffs. Sidney A. Stutz and James F. Holtz appeared for NASSCO. DeEtte L. Loeffler and A. Kirk Gasperecz appeared for AMCA. Roberta R. Fairbanks and Thomas J. Stoddard appeared for defendant Microdot and Minnesota Liquidating. David B. Oberholtzer appeared for CMC.

 At the conclusion of the hearing, the court denied plaintiffs' motion for partial summary judgment, and granted plaintiffs permission to file an amended complaint. The court took NASSCO's motion to dismiss amended cross-claims and CMC's motion for leave to file counterclaims and cross-claims under submission pending decision by Magistrate Judge Harry R. McCue of the Southern District of California on motions for good faith settlement determination. *fn1"

 After considering all of the pleadings, memoranda of points and authorities, and other documents on file herein, and after having heard and considered oral argument, the court grants NASSCO's motion to dismiss amended cross-claims and denies CMC's motion for leave to file counterclaims and cross-claims.

 FACTS

 On July 10, 1987, the U.S.S. Sacramento was shifted from a drydock to Berth 5 in the shipyard of NASSCO. Plaintiffs and plaintiffs' decedents, all NASSCO employees, were performing duties relating to the movement of the Sacramento and the shifting of a barracks barge to the outboard of the Sacramento. This operation was performed under the supervision of the United States Navy and a San Diego Harbor pilot.

 After the Sacramento was shifted, a personnel basket was lowered by crane to retrieve the plaintiffs and plaintiffs' decedents from the barge and transport them to the dock. The personnel basket was attached to the whip line of a Clyde Whirley crane, C-W number 3864, NASSCO number 7 ("Crane No. 7"). As the basket moved over the Sacramento, it fell to the deck of the ship. Of the twelve workers in the basket, six were killed and six were seriously injured. The Sacramento was on navigable waters at the time of the accident.

 Plaintiffs filed a complaint against various defendants under theories including the Jones Act, common law negligence, products liability and breach of warranty. The defendants have filed numerous cross-complaints against one another.

 The defendants at issue in this motion are NASSCO, AMCA, Microdot and Minnesota Liquidating, and CMC. As stated above, NASSCO was the employer of plaintiffs and their decedents at the time of the accident. CMC is a successor in interest to Randtronics, the company which allegedly manufactured and installed the control system for the electric motor used to hoist the whip line of Crane No. 7.

 The role of the other three defendants, Microdot and Minnesota Liquidating, and AMCA, is more complicated. Crane No. 7 was manufactured by Clyde Iron Works, Inc. in 1964 or 1965. Sometime around 1970, Clyde Iron Works became a wholly-owned subsidiary of Microdot. In 1973, Microdot sold the business of Clyde Iron Works to Dombrico, Inc. Under the sales agreement, Microdot kept all of the sales proceeds and changed the name of Clyde Iron Works to Minnesota Liquidating Company. Minnesota Liquidating remained a shell corporation and for all intents and purposes ceased business activity. After purchasing Clyde Iron Works in 1973, Dombrico used the factory to continue to produce the same line of cranes under the name "Clyde Iron." AMCA is the successor corporation of Dombrico. *fn2"

 AMCA and Microdot have filed amended cross-claims against NASSCO for full or partial equitable indemnity, full or partial comparative indemnity and declaratory relief. CMC moved for leave to file counterclaims and cross-claims which essentially make the same claims of indemnity and contribution against NASSCO as asserted by the other cross-claimants in this motion. NASSCO is seeking to dismiss these cross-claims, and opposes granting CMC request for leave to file cross-claims.

 DISCUSSION

 The exclusive liability provision of the Longshore and Harbor Workers' Compensation Act ("LHWCA") ...


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