16 So.3d 1065 (La. 2009), 2008-C-1163, Rando v. Anco Insulations Inc.

Docket Nº2008-C-1163, 2008-C-1169.
Citation16 So.3d 1065, 2008-1163 La. 5/22/09
Opinion JudgeKNOLL, Justice.[*]
Party NameRay F. RANDO v. ANCO INSULATIONS INC., et al.
AttorneyMcGlinchey Stafford, Arthur H. Leith, New Orleans, Dan Edward West, Baton Rouge, Sharrolyn Jackson Miles, New Orleans, for Applicant (2008-C-1163). Jeansonne & Remondet, Scott F. Higgins, Donovan Jay O'Pry, II, Lafayette; Baron & Budd, Jody Edward Anderman, Dallas, TX, Cameron Ray Waddell, Jason ...
Judge PanelVICTORY, J., dissents and assigns reasons. WEIMER, J., dissents for the reasons assigned by VICTORY, J. VICTORY, J., dissenting.
Case DateMay 22, 2009
CourtSupreme Court of Louisiana

Page 1065

16 So.3d 1065 (La. 2009)

2008-1163 La. 5/22/09

Ray F. RANDO

v.

ANCO INSULATIONS INC., et al.

Nos. 2008-C-1163, 2008-C-1169.

Supreme Court of Louisiana.

May 22, 2009

Rehearing Denied Sept. 4, 2009.

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McGlinchey Stafford, Arthur H. Leith, New Orleans, Dan Edward West, Baton Rouge, Sharrolyn Jackson Miles, New Orleans, for Applicant (2008-C-1163).

Jeansonne & Remondet, Scott F. Higgins, Donovan Jay O'Pry, II, Lafayette; Baron & Budd, Jody Edward Anderman, Dallas, TX, Cameron Ray Waddell, Jason Kyle Placke, Baton Rouge, Renee Marie Melancon, Dallas, TX; Robert Elton Arceneaux, Metairie, for Respondent (2008-C-1163).

Jeansonne & Remondet, Scott F. Higgins, Donovan Jay O'Pry, II, Lafayette, for Applicant (2008-C-1169).

Baron & Budd, Jody Edward Anderman, Dallas, TX, Cameron Ray Waddell, Jason Kyle Placke, Baton Rouge, Renee Marie Melancon, Dallas, TX; Robert Elton Arceneaux, Metairie; McGlinchey Stafford, Arthur H. Leith, New Orleans, Dan Edward West, Baton Rouge, Sharrolyn Jackson Miles, New Orleans, for Respondent (2008-C-1169).

Edwin A. Ellinghausen, III, Brian Carl Bossier, Erin Helen Boyd, Mandeville, for American Motorists Insurance Company, Northrop Grumman Ship System, Inc., Amicus Curiae.

David Mark Bienvenu, Jr., William Shelby McKenzie, Lexi Trahan Holinga, Baton Rouge, for Dow Chemical Co., Union Carbide Corp., Ethyl Corporation, Amicus Curiae.

Kelly Lynn Callahan, Jonathan Brett Clement, Lauren Roussel Clement, Gerolyn Petit Roussel, Perry Joseph Roussel, Jr., La Place, for Josie Legendre Grainer, widow-Byron Granier, Amicus Curiae.

Rodney P. Vincent, Louis Lowell Plotkin, Mike Gertler, Louis Leopold Gertler, New Orleans, Marcia Ann Frinkelstein, for Lorena Belsome Lajaunie and other Similarly Plaintiffs, Amicus Curiae.

Floyd J. Falcon, Jr., Baton Rouge, for Louisiana AFL-CIO, Amicus Curiae.

KNOLL, Justice.[*]

[2008-1163 La. 1] We granted these consolidated writ applications to resolve a conflict among the appellate courts of this state on the issue of whether mesothelioma is a compensable occupational disease under the pre-1975 version of the Louisiana Workers' Compensation Act (the " Act" ). Rando v. Anco Insulations, Inc., et al., 08-1163 c/w 08-1169 (La.9/26/08), 992 So.2d 972,973. Specifically, a review of the jurisprudence reveals that tort claimants in the First and Fourth Circuit Courts of Appeal may recover against their employers for mesothelioma under the pre-1975 Act, while tort claimants in the Second and Fifth Circuit Courts of Appeal cannot. After reviewing the record and the applicable law, we find mesothelioma resulting from contact with asbestos is not a covered occupational disease under La.Rev.Stat. § 23:1031.1 (1952). Accordingly, we affirm the judgment of the court of appeal, First Circuit, and find the plaintiff's tort claim against his employer for mesothelioma is not barred by the exclusive remedy provision of the Act. We further find no error in the lower court's interpretation of

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La.Rev.Stat. § 9:2772, a peremptive provision applicable to actions involving deficiencies in surveying, design, supervision, or [2008-1163 La. 2] construction of immovables or improvements thereon, its liability findings, and the determination of quantum.

FACTS AND PROCEDURAL HISTORY

On September 23, 2005, at 59 years of age, Ray Rando (" Rando" ) was diagnosed with mesothelioma, a rare cancer caused by exposure to asbestos. 1 On November 22, 2005, Rando filed suit against H.E. Wiese, Inc., n/k/a Jacobs Contractors, Inc. (" JCI" ), and Parsons Infrastructure & Technology Group, Inc. (" Parsons" ), alleging that his disease was caused by his exposure to asbestos while working as a pipe fitter during his employment with those companies in the early 1970s.2 At trial, Rando presented evidence of his exposure to asbestos while working for JCI in late 1970 and early 1971, and Parsons from April 1972 to December 1972; although both exposures were at the Shell Oil facility in Norco, these exposures were at two separate sections of the plant. In both employments Rando alleged onlooker exposure to asbestos used by insulators who were not employees of JCI and Parsons. As a result of this Court's holding in [2008-1163 La. 3] Austin v. Abney Mills, Inc., 01-1598 (La.9 4/02), 824 So.2d 1137,3 the trial court applied the 1952 version of La.Rev.Stat. § 23:1031.1, the law effective on the date of Rando's " significant exposure" to asbestos. La.Rev.Stat. § 23:1031.1 (1952) provided in pertinent part as follows:

Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the Compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.

(A) An occupational disease shall include only those diseases hereinafter listed when contracted by an employee in the course of his employment as a result of the nature of the work performed ...

1. Poisoning by or other disease resulting from contact with:

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(a) the halogens, halogen compounds, and halogenated hydrocarbons

(b) alkaline materials

(c) arsenic, phosphorus, xilenium, sulfur, tellurium, and their compounds

(d) oxygen, nitrogen, carbon, and their compounds

(e) cyanides and cyanogen compounds

(f) lead and lead compounds

(g) metals other than lead and their compounds

(h) aliphatic hydrocarbons and their nitro, diazo and amino compounds

(i) aromatic and cyclic hydrocarbons and their nitro, amino and other compounds

...

2. Diseased condition caused by exposure to X-rays or radioactive substances

[2008-1163 La. 4] 3. Asbestosis[4]

4. Silicosis

5. Dermatosis

6. Pneumoconiosis

(Emphasis added). Subsection F of the 1952 statute further provided that " [t]he rights and remedies herein granted to an employee or his dependent on account of an occupational disease for which he is entitled to compensation under this chapter shall be exclusive of all other rights and remedies of such employee ..." La.Rev.Stat. § 23:1031.1 (1952).

The trial court denied JCI and Parsons' motion for summary judgment in which they asserted that the exclusivity provisions of the Act barred Rando's tort suit.5 The [2008-1163 La. 5] court of appeal denied Parsons' request for supervisory review, observing that Parsons could address the issue on appeal after trial on the merits. Rando v. Anco Insulations, Inc., 07-0020 (La.App. 1 Cir. 1/8/07) (unpublished). After a bench trial, the trial court determined Rando's cause of action accrued prior to 1975 while working for JCI and Parsons, and that these defendants should have known about the dangers of asbestos materials at that time. The trial court also cited Austin, supra, as conclusively holding that because " the pre-1975 version of La. Rev. Stat. 23:1031.1 did not include mesothelioma as a covered disease or asbestos as a substance that caused disease, the plaintiffs were not precluded from pursuing a negligence action against their employer." The court awarded general damages to Rando for pain and suffering, mental anguish, and loss of enjoyment of life in the amount of $2.8 million along with special damages in the amount of $402,000. The court determined

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there was evidence that eight entities were joint tortfeasors, and applied the pre-1980 " virile share" law under which fault is divided among joint tortfeasors into virile or equal shares regardless of whether one played a greater role in causing damages. Judgment was then entered against JCI for one-eighth of the total amount of the award, or $400,250.00, and against Parsons for the same amount.

JCI and Parsons appealed, arguing they were entitled to tort immunity under the 1952 version of La.Rev.Stat. § 23:1031.1 and that, if not, the trial court erred in finding Rando's exposure to asbestos while employed by them caused mesothelioma, and in finding they should have known Rando was at risk for developing mesothelioma while in their employ. Further, JCI argued Rando's claims were barred by La.Rev.Stat. § 9:2772, which, at the time he worked for JCI, provided a peremptive period of 10 years for actions involving deficiencies in design, supervision or constructions of improvements to immovables, with an exception [2008-1163 La. 6] precluding a person in possession or control, as owner, lessor, tenant, or " otherwise" of such an improvement, from asserting the defense if the deficiency constituted a proximate cause of the injury. La.Rev.Stat. § 9:2772 (1964).

The court of appeal affirmed the trial court's judgment based on that circuit's prior decision in Terrance v. Dow Chemical Co., 06-2234 (La.App. 1 Cir. 9/14/07), 971 So.2d 1058, writ denied, 07-2042 (La.12/14/07), 970 So.2d 534, which held that the 1952 version of La.Rev.Stat. § 23:1031.1 did not include mesothelioma as a covered disease or asbestos as a covered substance that caused a disease, and thus an employee suffering from mesothelioma is not precluded from filing a tort action against an employer for damages. Rando v. Anco Insulations, Inc., et al., 07-2093 (La.App. 1 Cir. 5/2/08), 2008 WL 2068080 (unpublished). The court of appeal also found that Rando's claims were not perempted under La.Rev.Stat. § 9:2772 because JCI had ultimate control over the construction project at the time of plaintiff's exposure. Id. at p. 2, 2008 WL 2068080, at *1. Finally, the court of appeal found no manifest error in the trial court's factual findings on causation and knowledge. Id. at p. 8, 2008 WL 2068080, at *4.

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1 practice notes
  • Crafting an Asbestos Scheduled Compensation Solution for Louisiana and the Nation
    • United States
    • Louisiana Law Review Nbr. 72-3, April 2012
    • April 1, 2012
    ...cons of consolidation and medical criteria statutes as a solution to the asbestos litigation crisis). 3. Rando v. Anco Insulations Inc., 16 So. 3d 1065 (La. 2009). 4. See discussion infra Part II (explaining the use of asbestos case consolidation and medical criteria statutes as solutions t......
1 books & journal articles
  • Crafting an Asbestos Scheduled Compensation Solution for Louisiana and the Nation
    • United States
    • Louisiana Law Review Nbr. 72-3, April 2012
    • April 1, 2012
    ...cons of consolidation and medical criteria statutes as a solution to the asbestos litigation crisis). 3. Rando v. Anco Insulations Inc., 16 So. 3d 1065 (La. 2009). 4. See discussion infra Part II (explaining the use of asbestos case consolidation and medical criteria statutes as solutions t......

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