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EAGLE-PICHER INDUS. v. UNITED STATES

April 30, 1985

EAGLE-PICHER INDUSTRIES, INC., Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, District Judge:

 Again, this Court is faced with the claim of a manufacturer of asbestos products seeking relief from the United States for damages allegedly sustained in settling various private "underlying" suits brought against it. Plaintiff Eagle-Picher Industries ("Eagle-Picher") has sued the United States seeking indemnity, contribution, apportionment and other money damages under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, and the provisions of several admiralty statutes. *fn1" Eagle-Picher contends that the underlying suits were brought by various plaintiffs who alleged personal injury and death resulting from their exposure to harmful quantities of asbestos fibers contained in thermal insulation products which it manufactured. Eagle-Picher then filed a single omnibus action seeking reimbursement for 559 underlying claims which has culminated in this litigation.

 Pursuant to Rule 12(b)(1) Fed.R. Civ. P., the government has moved to dismiss the complaint on several jurisdictional grounds: the plaintiff's claim for various damages is barred by applicable statute of limitations; the administrative claim fails to provide sufficient information and thus the minimal notice requirements of the FTCA has not been satisfied resulting in failure to exhaust administrative remedies; and lack of admiralty jurisdiction because none of the wrongs alleged in the complaint bear a significant relationship to maritime activities.

 The matter has been exhaustively briefed and ably argued by counsel for the parties. For the reasons stated below, the Court grants the government's motion to dismiss.

 BACKGROUND FACTS

 On July 27, 1983, Eagle-Picher submitted an administrative claim to the Department of the Navy and to six other federal agencies. *fn2" The claim sought nearly $5 million in damages under the FTCA. Eagle-Picher alleged that the United States was liable for indemnity, contribution, apportionment and other monetary relief for its costs in defending and settling 559 underlying asbestos-related actions. In support of its claim for damages as to the 559 underlying actions, Eagle-Picher submitted one Standard Form 95 *fn3" with attachments. The attachments included documents identifying Eagle-Picher's "primary" and "excess" asbestos insurance coverage (Attachment I), *fn4" a list of agencies to which plaintiff forwarded copies of its administrative claim (Exhibit A), information about each of the underlying plaintiffs (Exhibit B), and the alleged damages incurred by Eagle-Picher as to each underlying plaintiff (Exhibit C). The claim itself consisted of a 42 page narrative statement of background factual information and a description of the legal claims.

 In early November 1983, the government sent Eagle-Picher identical individual letters regarding approximately 343 of the underlying claimants advising that its administrative claim did "not satisfy the notice requirements of section 2675(a) of the Federal Tort Claims Act . . ." *fn5" Plaintiffs' Opposition to Motion to Dismiss at Exhibit L. The letters contained specifications for information which the government considered necessary before it would declare the claims to have been filed in compliance with § 2675(a). *fn6" Eagle-Picher responded in a single letter to the Department of Labor on November 29, 1983 and stated that it construed the Department's letters as a denial of its administrative claim. Defendant's Motion to Dismiss at Exhibit D. Six months after receiving the first set of letters from the government, Eagle-Picher filed this complaint.

 ANALYSIS

 A.

 In its motion to dismiss, the government argued that Eagle-Picher is barred by the statute of limitations from including 219 of the 559 underlying claims in its omnibus claim. 28 U.S.C. § 2401(b) (two year statute of limitations for tort claims against the government). In its opposition to the motion, Eagle-Picher conceded that it would only be pursuing 343 of the underlying claims. Plaintiff's Opposition to Motion to Dismiss at 2 n. 1. Because of the disposition of the adequacy of the claim issue, the Court need not make a finding as to the few disputed claims. *fn7"

 In its complaint, Eagle-Picher invoked this Court's admiralty jurisdiction. The defendant argues that admiralty jurisdiction does not arise from the type of claims which Eagle-Picher presents. That proposition is unopposed by the plaintiff. It is clearly the law that admiralty jurisdiction does not lie with claims arising from asbestos exposure in shipyards or aboard vessels. See, e.g., Harville v. Johns-Manville Products Corp., 731 F.2d 775, 781 (11th Cir.1984); Lowe v. Ingalls Shipbuilding, 723 F.2d 1173, 1190 (5th Cir.1984); Austin v. Unarco Industries, Inc., 705 F.2d 1, 14 (1st Cir.1983), cert. denied, 463 U.S. 1247, 104 S. Ct. 34, 77 L. Ed. 2d 1454 (1983); Keene Corp. v. United States (Keene I) ; 700 F.2d 836, 844-45 (2d Cir. 1983), cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983); Owens-Illinois, Inc. v. United States District Court, 698 F.2d 967, 969 (9th Cir.1983).

 B.

 Section § 2675(a) of the Federal Tort Claims Act requires that an administrative complaint be filed with an appropriate federal agency prior to bringing an action in court under the Act. It is widely accepted that the filing requirement contained in that section is jurisdictional. See, e.g., Warren v. United States Department of Interior, 724 F.2d 776 (9th Cir.1984); Bush v. United States, 703 F.2d 491, 494 (11th Cir.1983); Tucker v. United States Postal Service, 676 F.2d 954, 959 (3rd Cir.1982); Adams v. United States, 615 F.2d 284, 290 (5th Cir.1980), opinion clarified, 622 F.2d 197 (5th Cir.1980). The government contends that Eagle-Picher has not adequately presented its claim to an agency prior to filing this action. Because the Court finds that the administrative claim ...


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