Cole v. Celotex Corp.

• Decision Date: 28 May 1992
• Docket Number: 91-C-2539,Nos. 91-C-2531,s. 91-C-2531
• Citation: 599 So.2d 1058
• Parties: Outher COLE, et al. v. CELOTEX CORPORATION, et al. 599 So.2d 1058, Prod.Liab.Rep.(CCH)P. 13,191
• Court: Louisiana Supreme Court

Page 1058

599 So.2d 1058

Outher COLE, et al. v. CELOTEX CORPORATION, et al.

Nos. 91-C-2531, 91-C-2539.

599 So.2d 1058, Prod.Liab.Rep.(CCH)P. 13,191

Supreme Court of Louisiana.

May 28, 1992.

Rehearing Denied June 30, 1992.

William B. Baggett, William B. Baggett, Jr., and Rebecca Sue Young, Baggett, McCall & Burgess, Lake Charles, for applicants.

William T. McCall, Robert E. Guillory, Guillory & McCall, Lake Charles, Dermot S. McGlinchey, Victoria K. McHenry James M. Garner, Martha M. Young, McGlinchey, Stafford, Cellini & Lang, New Orleans, Richard M. Shusterman, David E. Sandels, Jr., Patricia A. Henry, White and Williams, Philadelphia, Pa., James L. Pate, Laborde & Neuner, Lafayette, Richard N. Dicharry, Stephen P. Hall, Phelps Dunbar, New Orleans, David L. Hoskins, Scofield, Gerard, Veron, Hoskins & Soileau, Lake Charles, Michael T. Cali, Gerald J. Talbot, Lemle & Kelleher, J. Michael Johnson, Galloway, Johnson, Tompkins & Burr, New Orleans, Thomas M. Bergstedt, Scofield, Bergstedt, Gerard, Mount & Vernon, Kenneth R. Spears, Jones, Tete, Nolen, Hanchey, Swift & Spears, Lake Charles, Maria I. O'Byrne Stephenson, Jesse R. Adams, Jr., Adams & Johnson, New Orleans, Christopher P. Ieyoub, Plauche, Smith & Nieset, Lake Charles, Robert E. Kerrigan, Jr., A. Wendel Stout, III, Janet L. MacDonell, Marc J. Yellin, Gary B. Roth, Deutsch, Kerrigan & Stiles, Lawrence G. Pugh, III, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, and Vance Edward Ellefson, Ellefson, Pulver & Staines, Metairie, for respondents.

Gary Allen Lee, Faris, Ellis, Cutrone & Gilmore, New Orleans, for Underwriters at Lloyd's London Co., amicus curiae.

Brian Carl Bossier, Robert Edgar Caraway, III, and Robert E. Williams, IV, Metairie, for J. Melton Garrett, George Kelmell, Peter Territo, Steven Kennedy, Albert Bossier, Edward Blanchard, Ollie Gatlin Edwin Hartzmann, John Chantrey, Charles Calzada, and Paul Tregre, Jr., amici curiae.

Edward John Lilly, Dymond, Crull, Castaing & Lilly, New Orleans, for Uniroyal Inc., amicus curiae.

Rockne Locke Moseley, Lea, Plavnicky & Moseley, New Orleans, for McDermott Inc., amicus curiae.

Charles S. McCowan, Jr., Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Baton Rouge, for Louisiana Chemical Ass'n, amicus curiae.

Carey J. Guglielmo and Daniel Joseph Balhoff, Mathews, Atkinson, Guglielmo, Marks & Day, Baton Rouge, for Dow Chemical Co., amicus curiae.

HALL, Justice.

This case involves injuries to workers caused by long-term exposure to asbestos at their workplace, and presents several significant issues of law upon which a divergence of opinion exists among our state and federal courts. ¹ Plaintiffs, three workers, and defendant, the insurer of plaintiffs' employer's executive officers, both filed writ applications. We granted both writs ² to consider three principal issues: ³ (1) whether the law to be applied in allocating liability among the parties to the instant suit is comparative, or pre-comparative, fault; ⁴ (2) whether, assuming pre-comparative fault law applies, the virile share of the nine executive officers found at fault should be considered as one single share or as nine separate shares; and (3) whether the coverage provided by the defendant-insurer can be "horizontally stacked." ⁵

I.

In December 1987, plaintiffs, Wilson J. Cormier, Dewey Derouen and John Perry, three former workers at the Cities Service refinery in Calcasieu Parish, commenced suit, claiming damages for injuries caused by long-term exposure to asbestos at their workplace. ⁶ Plaintiffs named as defendants, among others, Insurance Company of North America ("INA"), as the primary liability insurer of certain Cities Service executive officers, ⁷ and eleven manufacturers of asbestos-containing products. ⁸

In their petition, plaintiffs asserted multiple theories of liability against the manufacturer-defendants, including the full gamut of products liability claims. While not directly joined as defendants, eleven Cities Service employees were alleged by plaintiffs to be executive officers. ⁹ Plaintiffs alleged that these purported executive officers negligently failed to provide them with a safe workplace between 1945, the year they began work, ¹⁰ and 1976, the year the Louisiana legislature amended LSA-R.S. 23:1032 of the Louisiana Worker's Compensation Law to eliminate negligence suits against executive officers of corporate employers. ¹¹ INA filed cross-claims against the manufacturer-defendants seeking contribution.

In November 1989, on the eve of trial, plaintiffs settled with the manufacturer-defendants, and the trial judge dismissed INA's cross-claims as no longer viable. Thus, the case was tried against INA as the sole defendant. Nonetheless, it was stipulated that during plaintiffs' employment at Cities Service, they were exposed at the workplace to the manufacturer-defendants' asbestos-containing products, that the manufacturer-defendants' asbestos-containing products were unreasonably dangerous per se and that the manufacturer-defendants were all legally at fault in causing plaintiffs' asbestos-related occupational diseases. It also was stipulated that INA's coverage during the relevant years ranged from a low of $10,000 to a high of $50,000 per accident and/or occurrence.

After a two-week trial, the jury found that nine of the purported Cities Service executive officers were negligent in failing to provide plaintiffs with a safe workplace in every year from 1945 through 1976, inclusive, and awarded damages in the amount of $300,000.00 to each plaintiff. Pursuant to the district court's instruction that they apply comparative fault law in apportioning liability, the jury allocated fault 95% to the nine executive officers and 5% to the eleven manufacturer-defendants. The jury also specifically was questioned as to whether any of the plaintiffs were contributorily negligent, and answered "No." The jury, however, did not decide the issue of insurance coverage; before trial, INA and plaintiffs agreed that the trial judge would decide that issue.

On the insurance coverage issue, the trial judge held that INA provided coverage for the nine negligent executive officers. Rendering written reasons for judgment on this issue, the trial judge concluded:

[P]laintiffs were exposed to different levels of asbestos dust at different times, under a variety of conditions, and at diverse job sites. Furthermore, plaintiffs belonged to different crafts and worked in different crews, and their exposures were scattered and varied throughout the refinery. There was no evidence that plaintiffs were together day in and day out, and this Court will not assume that plaintiffs' injuries were the result of similar occurrences at similar locations. Thus, it is appropriate to consider the harm visited upon each plaintiff as being a separate event, and to consider the event as occurring each year.

Based on the jury's finding that the executive officers were 95% at fault, the trial judge rendered judgment against INA, and in favor of plaintiffs, in the amount of $285,000.00 per plaintiff, plus legal interest. The trial judge further found that more than one of the INA policies were triggered and that the triggered policies were more than sufficient to satisfy each plaintiff's judgment, rendering it unnecessary to allocate the judgments among the policies at risk. From that judgment, INA appealed, raising thirteen assignments of error.

On appeal, the Third Circuit reversed the district court's finding that comparative fault law applied, accepting INA's argument that the case is governed by pre-comparative fault law. Applying pre-comparative fault (virile share) law, the Third Circuit found that there were a total of twenty virile shares, comprised of the eleven released manufacturer-defendants and the nine executive officers, and reduced each plaintiff's $300,000.00 award against INA by 11/20ths to $135,000.00, with interest from the date of judicial demand in this case in state court. The Third Circuit further found that INA's annual policies covering each plaintiff's exposure could be horizontally stacked and concluded, as did the district court, that there was "more than sufficient coverage for each plaintiff's award." The Third Circuit made one other minor amendment to the district court's judgment, ¹² and otherwise affirmed. Cole v. Celotex Corp., 588 So.2d 376 (La.App.3rd Cir.1991). From that judgment, both the plaintiffs and INA applied for writs. As outlined above, we granted both applications to consider a number of issues. 592 So.2d 401 (La.1992). For the reasons detailed below, we find that the Third Circuit correctly resolved all the issues considered herein and affirm.

II.

As noted, the first issue is whether the provisions of the Louisiana Comparative Fault Law, which was enacted by Act 431 of 1979 and which became effective on August 1, 1980, apply to the instant case commenced after the Act's effective date. ¹³ At the outset, we observe that this issue has two facets: (i) whether plaintiffs' direct claims are governed by pre-Act contributory negligence, or post-Act comparative fault, law; and (ii) whether the allocation of fault among the defendants who are found to be solidarily liable is governed by pre-Act virile share, or post-Act comparative fault, law. ¹⁴

A. PROSPECTIVE APPLICATION OF ACT 431

"Prospective operation of statutes is a general rule and, as a general rule, it is respected by the courts." Dixon, Judicial Method in Interpretation of Law in Louisiana, 42 La.L.Rev. 1661, 1665 (1982). Planiol aptly articulates the rationale behind this general rule: "a fact and an act are governed by the law under whose aegis they took place.... [T]he solution cannot change on account of the circumstance that when the court rules, the law governing such a fact or such an act is no longer the same." 1 M. Planiol, Treatise on the Civil Law, Sec. 243A (La.St.L.Inst.Trans.1959).

This general rule...