McMillian v. Coating Specialists, Inc.

• Decision Date: 17 November 1976
• Docket Number: Civ. A. No. 75-3250.
• Citation: 1978 AMC 690,427 F. Supp. 54
• Parties: James I. McMILLIAN, Plaintiff, v. COATING SPECIALISTS, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

427 F. Supp. 54

1978 AMC 690

James I. McMILLIAN, Plaintiff, v. COATING SPECIALISTS, INC., et al., Defendants.

Civ. A. No. 75-3250.

United States District Court, E. D. Louisiana.

November 17, 1976.

Roger H. Fellom, New Orleans, La., for plaintiff.

Terriberry, Carroll, Yancey & Farrell, John A. Bolles, New Orleans, La., for Steamship Mut. Underwriting Ass'n Ltd.

Porteous, Toledano, Hainkel & Johnson, James L. Donovan, New Orleans, La., for Transamerica Ins. Co.

Deutsch, Kerrigan & Stiles, Christopher Tompkins, New Orleans, La., for Ins. Co. of N. A.

Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Edward P. Lobman, New Orleans, La., for North River Ins. Co. and Westchester Fire Ins. Co.

Beard, Blue, Scmitt & Mathes, Robert M. Johnston, and Christovich & Kearney, Lawrence J. Ernst, New Orleans, La., for Pulmosan Safety Equipment Corp.

Hammett, Leake, Hammett, Hulse & Nelson, Craig R. Nelson, New Orleans, La., for Commercial and Clemco.

Drury, Lozes & Curry, Felicien P. Lozes, New Orleans, La., for Commercial Union Co., Employers Liability Assur., and Northern Assur. Co.

Adams & Reese, Robert A. Vosbein, Trial Atty., New Orleans, La., for Market Ins. Co.

Eugene J. Gomes, Jr., New Orleans, La., for Continental Casualty.

Chaffe, McCall, Phillips, Toler & Sarpy, Robert B. Deane, Trial Atty., New Orleans, La., for Underwriters at Lloyd's and Harbor Ins. Co.

Jones, Walker, Waechter, Poitevant, Carrere & Denegre, Fred E. Salley, John H. Stibbs, Jr., New Orleans, La., for Mission Ins. Co.

Charles R. Capdeville, New Orleans, La., for Coating Specialists.

ALVIN B. RUBIN, District Judge.

A Jones Act seaman¹ contracted silicosis during the course of his employment as a sandblaster over a period of 5 years by the same employer. His employer changed insurers several times during the plaintiff's employment. One group of policies contains identical language, extending coverage "only to injury . . . by disease caused or aggravated by exposure of which the last day of the last exposure, in the employment of the insured, to conditions arising the disease occurs during the policy period." Emphasis supplied. The plaintiff continued in the same employment after these policies terminated and continued to be exposed to silica dust thereafter.

If the inverse word order is altered, the policy covers disease only if "the last exposure . . . to conditions that caused or aggravated the disease" occurred "during the policy period." These insurers² contend that they are entitled to summary judgment because only the insurance company that had the risk on the last day of exposure to silica dust could be liable. This position is supported by the decision of the late Judge Herbert Christenberry in Froust v. Coating Specialists, Inc., E.D.La.1973, 364 F.Supp. 1154, aff'd 5 Cir. 1974, 494 F.2d 1352. In the light of this authority, the only argument plaintiff can muster is that, even if he was last exposed to conditions that might have caused silicosis after the policies had expired, there is no evidence that the later exposure did cause the disease and that the policy requires that the conditions to which the employee is exposed be those that actually "caused" the disease. This argument proves too much; the medical testimony shows that silicosis is caused by the inhalation of dust and is aggravated by continued exposure; to be redundant for the sake of emphasis, the condition becomes more severe as exposure lengthens. When the disease is diagnosed after a long period of exposure, it is difficult or impossible to determine when it began, that is when it was "caused," and how it...