Melancon v. Insurance Company of North America

Citation482 F.2d 1057
Decision Date10 September 1973
Docket NumberNo. 73-2007. Summary Calendar.,73-2007. Summary Calendar.
PartiesLearness MELANCON, Plaintiff, v. INSURANCE COMPANY OF NORTH AMERICA et al., Defendants. COATING SPECIALISTS, INC., Defendant-Third Party Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Third Party Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Rudolph R. Schoemann, New Orleans, La., for plaintiff appellant.

John M. Duhe, Jr., New Iberia, La., Thomas M. Bergstedt, Reid K. Hebert, Lake Charles, La., for Ins. Co. of North America.

John Rixie Mouton, J. Minos Simon, Lafayette, for Melancon.

Lawrence J. Ernst, New Orleans, La., for Highlands and others.

John M. Shaw, Opelousas, La., for Fireman's Fund and others.

Donald V. Organ, New Orleans, La., for State Auto and others.

Before BELL, GODBOLD and INGRAHAM, Circuit Judges.

GODBOLD, Circuit Judge:

Melancon, alleging that his work aboard the M/V SNIPE from September 7, 1968 to January 1969 aggravated or caused his silicosis or pneumonoconiosis condition, sued his employer Coating Specialists, Inc. (Coating) and its insurer Insurance Company of North America (INA),1 for damages under the Jones Act and maintenance under the general maritime law. The District Court entered orders granting summary judgment for INA on the ground of lack of coverage and denying Coating's subsequent motion for leave to file a third-party complaint against INA.2 Coating appealed from both orders. We dismissed for lack of jurisdiction because the District Court had not accompanied its summary judgment for INA with a F.R.Civ.P. 54(b) certificate and, because, assuming that the denial of Coating's motion to file a third-party complaint might be appealable if certified under R. 54(b), it was clearly not appealable without such certification. Melancon v. Ins. Co. of North America, 476 F.2d 594 (CA5 1973).

Subsequently the District Court expressly determined that there was no just reason to delay and directed that final judgment for INA be entered upon the two orders. Coating appeals from this judgment. We reverse.

On the appeal from the summary judgment, the record must be viewed in the light most favorable to Coating, which opposed the motion. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed. 2d 458, 464 (1962); Pogue v. Great A&P Tea Co., 242 F.2d 575, 576 (CA5, 1957). INA bears the burden of showing both that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. F.R.Civ.P. 56(c) and Steed v. Central of Georgia Ry. Co., 477 F.2d 1303 (CA5 1973).

The insurance agreement between INA and Coating provided:

This policy applies only to injury (1) by accident occurring during the policy period, or (2) by disease caused or aggravated by exposure of which the last day of the last exposure, in the employment of the insured, to conditions causing the disease occurs during the policy period.

INA's theory of lack of coverage is first that there was no "accident" during the policy period, and, second, that the last day of the exposure to conditions causing or aggravating plaintiff's disease occurred after its policy had terminated. To establish factual bases for summary judgment in its favor, INA presented and relied upon the following: (1) Melancon's allegations in his complaint that he was employed as a seaman by Coating aboard the M/V SNIPE from about September 7, 1968, to January, 1969;3 that his duties included filling sand pots in the vessel's hatch with sand; that he was exposed to particles of foreign matter created or thrown in the air by sandblasting activities Coating conducted on the oil platforms to which the SNIPE was moored; and that "the performance of his duties for Coating aboard the SNIPE caused or aggravated the disease of silicosis or pneumonoconiosis which now totally and permanently disables complainant from pursuing any gainful employment." (2) The policy dates which appear on the face of the insurance agreement (April 24, 1968 to April 24, 1969) and the uncontroverted affidavit of an INA underwriter stating that the policy expired on April 24, 1969, and was not renewed. (3) The uncontroverted affidavit of Coating's general counsel admitting that Melancon worked for Coating from September 4, 1968, through July 3, 1969. (4) Melancon's testimony by deposition which INA claims establishes without contradiction that when he worked as a "helper" for Coating on shore after the April 24, 1969, termination date of the policy his job entailed sandblasting, filling of sand pots, cleaning and painting and that he never went as long as three weeks without performing all of these jobs, including sandblasting.

Coating presented no controverting evidentiary documents in opposition to INA's motion. It relied instead upon Melancon's deposition and also filed with the court memoranda concerning the proper construction to be given the policy provision quoted above and the arguable characterization of silicosis as an "accident" not a "disease".

The District Court made no findings and gave no reasons for granting INA summary judgment.4 The policy would cover Melancon's alleged silicosis or pneumonoconiosis if that condition were determined to be either (1) an injury "by accident occurring during the policy period" or (2) an injury "by disease" caused or aggravated by exposure to conditions causing the disease, the last day of such exposure occurring during the policy period. Since the court granted summary judgment, we must assume that it considered there were no material disputed facts pertaining to either basis of coverage...

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