672 So.2d 1106 (La.App. 4 Cir. 1996), 95-CA-1788, Held v. Avondale Industries, Inc.

CourtCourt of Appeal of Louisiana (US)
Citation95-1788 La.App. 4 Cir. 4/3/96,672 So.2d 1106
Docket Number95-CA-1788.
PartiesMavis Shubert HELD, et al. v. AVONDALE INDUSTRIES, INC., et al.
Date03 April 1996

Page 1106

672 So.2d 1106 (La.App. 4 Cir. 1996)

95-1788 La.App. 4 Cir. 4/3/96

Mavis Shubert HELD, et al.

v.

AVONDALE INDUSTRIES, INC., et al.

No. 95-CA-1788.

Court of Appeals of Louisiana, Fourth Circuit.

April 3, 1996

Page 1107

Plauche, Maselli & Landry, Robert E. Caraway, III, New Orleans, for Appellees.

Martzell and Bickford, Scott R. Bickford, M. Suzanne Montero, New Orleans, for Appellants.

Before KLEES, BYRNES and MURRAY, JJ.

[95-1788 La.App. 4 Cir. 1] BYRNES, Judge.

This is an appeal by the plaintiffs from a summary judgment rendered by the trial court dismissing plaintiffs' claims against Avondale Industries, Inc. We reverse and remand. 1

Plaintiff allegedly died of mesothelioma, a form of cancer associated with exposure to asbestos. Prior to his death he and his wife filed this suit against numerous defendants, including Avondale Industries, Inc. As against Avondale Held alleged that he came into contact with asbestos while working on ships there in his capacity as a marine surveyor. Following his death in 1992, this suit was continued by his wife and children. Their right to do so is not contested on this appeal.

  1. STANDARD OF REVIEW

    Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180; [95-1788 La.App. 4 Cir. 2] Schroeder v. Board of Sup'rs of Louisiana State University,

    Page 1108

    591 So.2d 342, 345 (La.1991). A summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). All evidence and inferences drawn from the evidence must be construed in the light most favorable to the party opposing the motion. Carr v. City of New Orleans, 622 So.2d 819, 822 (La.App. 4th Cir.1993) and Dibos v. Bill Watson Ford, Inc., 622 So.2d 677, 680 (La.App. 4th Cir.1993). To satisfy his burden, the party moving for the summary judgment must meet a strict standard by showing that it is quite clear as to what the truth is, and that excludes any real doubt as to the existence of material fact. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). The papers supporting the position for the party moving for the summary judgment are to be closely scrutinized while the opposing papers are to be indulgently treated, in determining whether mover has satisfied his burden. Vermilion, supra.

    Where the trial court is presented with a choice of reasonable inferences to be drawn from subsidiary facts contained in affidavits, exhibits, and depositions, reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Duvalle v. Lake Kenilworth, Inc. 396 So.2d 1268 (La.1981). No summary judgment will be granted even if the trial court has grave doubts regarding a party's ability to establish disputed facts. Aydell v. Charles Carter & Co., Inc., 388 So.2d 404 (La.App. 1st Cir.), writ denied 391 So.2d 460 (La.1980). The fact that a party is unlikely to prevail at a trial on the merits is [95-1788 La.App. 4 Cir. 3] an insufficient basis for rendering a summary judgment against that party. Chapeuis v. Cassimano, 568 So.2d 606 (La.App. 4th Cir.), writ denied 571 So.2d 629 (La.1990). This is true no matter how small the chances of the party opposing the motion to ultimately prevail appear to be. Dearie v. Ford Motor Co., 583 So.2d 28 (La.App. 5 Cir.), writ denied 588 So.2d 1117 (La.1991). It is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Morris v. Louisiana Coca-Cola Bottling Co., Ltd., 354 So.2d 659 (La.App. 1st Cir.1977). The weighing of conflicting evidence on a material fact has no place in summary judgment procedure. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3rd Cir.1974), writ denied 302 So.2d 308 (La.1974). Testimony should neither be received nor considered,...

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9 practice notes
  • 928 So.2d 668 (La.App. 1 Cir. 2006), 2004 CA 2769, Gilmore v. Wickes Lumber
    • United States
    • Court of Appeal of Louisiana (US)
    • February 17, 2006
    ...98-0742, p. 17 (La.App. 4 Cir. 1/27/99), 728 So.2d 533, 541; Held v. Avondale Industries, Inc., 95-1788, p. 3 (La.App. 4 Cir. 4/3/96), 672 So.2d 1106, 1108; Urban Management Corp. v. Burns, 427 So.2d 1310, 1311 (La.App. 2 Cir. 1983). 5 Moreover, Mr. Gilmore was given ample opportunity to sp......
  • The Effrontery Of The Asbestos Trust Transparency Legislation Efforts
    • United States
    • Mondaq United States
    • February 27, 2013
    ...occupational exposure to asbestos "is a substantial factor in bringing about mesothelioma"); Held v. Avondale Indus., Inc., 672 So. 2d 1106, 1109 (La. Ct. App. 1996) (medical evidence showed "no known level of asbestos [exposure] which would be considered safe . . . any [asbe......
  • 707 So.2d 1334 (La.App. 4 Cir. 1998), 97-C-2593, Meredith v. Asbestos Corp., Ltd.
    • United States
    • Court of Appeal of Louisiana (US)
    • February 18, 1998
    ...was barred by the exclusive remedy provisions of the Act. Finally, in Held v. Avondale Industries, Inc., 95-1788 (La.App. 4 Cir. 4/3/96), 672 So.2d 1106, the court found a genuine issue of material fact precluding summary judgment in favor of the defendant shipbuilder in a case filed by the......
  • 743 So.2d 680 (La.App. 5 Cir. 1998), 98-CA-287, Moody v. United Nat. Ins. Co.
    • United States
    • Court of Appeal of Louisiana (US)
    • September 29, 1998
    ...v. Middle South Utilities, 618 So.2d 436 (La.App. 5 Cir.1993); Held v. Avondale Industries, Inc., 95-1788 (La.App. 4 Cir. 4/3/96), 672 So.2d 1106. At the motion for summary judgment in the present case, plaintiffs produced affidavits from two of Jeffery's treating physicians. Dr. Joseph Nad......
  • Request a trial to view additional results
8 cases
  • 928 So.2d 668 (La.App. 1 Cir. 2006), 2004 CA 2769, Gilmore v. Wickes Lumber
    • United States
    • Court of Appeal of Louisiana (US)
    • February 17, 2006
    ...98-0742, p. 17 (La.App. 4 Cir. 1/27/99), 728 So.2d 533, 541; Held v. Avondale Industries, Inc., 95-1788, p. 3 (La.App. 4 Cir. 4/3/96), 672 So.2d 1106, 1108; Urban Management Corp. v. Burns, 427 So.2d 1310, 1311 (La.App. 2 Cir. 1983). 5 Moreover, Mr. Gilmore was given ample opportunity to sp......
  • 707 So.2d 1334 (La.App. 4 Cir. 1998), 97-C-2593, Meredith v. Asbestos Corp., Ltd.
    • United States
    • Court of Appeal of Louisiana (US)
    • February 18, 1998
    ...was barred by the exclusive remedy provisions of the Act. Finally, in Held v. Avondale Industries, Inc., 95-1788 (La.App. 4 Cir. 4/3/96), 672 So.2d 1106, the court found a genuine issue of material fact precluding summary judgment in favor of the defendant shipbuilder in a case filed by the......
  • 743 So.2d 680 (La.App. 5 Cir. 1998), 98-CA-287, Moody v. United Nat. Ins. Co.
    • United States
    • Court of Appeal of Louisiana (US)
    • September 29, 1998
    ...v. Middle South Utilities, 618 So.2d 436 (La.App. 5 Cir.1993); Held v. Avondale Industries, Inc., 95-1788 (La.App. 4 Cir. 4/3/96), 672 So.2d 1106. At the motion for summary judgment in the present case, plaintiffs produced affidavits from two of Jeffery's treating physicians. Dr. Joseph Nad......
  • 775 So.2d 657 (La.App. 4 Cir. 2000), 2000-CA-0249, Barbarin v. Dudley
    • United States
    • Court of Appeal of Louisiana (US)
    • December 20, 2000
    ...insufficient basis to render a summary judgment against that party. Held v. Avondale Industries, Inc., 95-1788 (La.App. 4 Cir. 4/3/96), 672 So.2d 1106, Having found that there exist genuine issues of material fact within the instant case, we conclude that the district court erred in grantin......
  • Request a trial to view additional results
1 firm's commentaries
  • The Effrontery Of The Asbestos Trust Transparency Legislation Efforts
    • United States
    • Mondaq United States
    • February 27, 2013
    ...occupational exposure to asbestos "is a substantial factor in bringing about mesothelioma"); Held v. Avondale Indus., Inc., 672 So. 2d 1106, 1109 (La. Ct. App. 1996) (medical evidence showed "no known level of asbestos [exposure] which would be considered safe . . . any [asbe......

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