97-2593 La.App. 4 Cir. 2/18/98, Meredith v. Asbestos Corp., Ltd.

Citation707 So.2d 1334
Parties97-2593 La.App. 4 Cir
Decision Date18 February 1998
CourtCourt of Appeal of Louisiana (US)

S. Gene Fendler, Scott C. Seiler, Jill Losch, Mary S. Johnson, Nadia M. de la Houssaye, Liskow & Lewis, New Orleans, for Travelers Insurance Company, as an Alleged Insurer of Todd Shipyards Corporation and its Executive Officers, Todd Shipyards Corporation and Fidelity & Casualty Company.

Mickey P. Landry, Frank J. Swarr, LeBlanc, Maples & Waddell, New Orleans, for Plaintiffs.

Gerolyn P. Roussel, Perry J. Roussel, Jr., Roussel & Roussel, LaPlace, for Lillian Peltier Perque, Una Perque Driscoll and Dave Perque.

Before PLOTKIN, JONES and CIACCIO, JJ.

[97-2593 La.App. 4 Cir. 1] CIACCIO, Judge.

The primary issue in these consolidated applications for supervisory writs is whether LSA-R.S. 23:1032, the exclusive worker's compensation statute, bars a wrongful death cause of action brought by survivors of former employees of Todd Shipyard Corp. ("Todd"), who died of mesothelioma alleged to have been contracted as a result of their occupational exposure to asbestos while they were employed at Todd prior to the effective date of the statute, but who died after the effective date of the statute.

Facts and procedural history

In Meredith v. Asbestos Corporation, Ltd., writ number 97-C-2593, plaintiffs, survivors of Larry Meredith, who died on October 10, 1995, as a result of mesothelioma, filed both a survival action and a wrongful death action against Kaiser, Todd, Todd's executive officers, and Todd's insurers, Fidelity Casualty Company of New York, The Travelers Insurance Company, and Hanover Insurance Company, along with various alleged suppliers and distributors of asbestos containing materials. Mesothelioma is a fatal, signature disease [97-2593 La.App. 4 Cir. 2] unquestionably caused by asbestos inhalation. The Meredith plaintiffs claimed that Meredith's death was caused by his occupational exposure to asbestos-containing substances between 1964 and 1972, while he was employed at Todd.

Todd's insurers and Kaiser filed a motion for summary judgment, claiming that both the survival and the wrongful death actions were barred. Todd's insurers and Kaiser claimed that the wrongful death action was barred under the Louisiana worker's compensation law effective at the time of Meredith's death in 1995. Moreover, Todd's insurers and Kaiser claimed that the survival action was barred, precluded, or extinguished by the dismissal of a suit filed by the decedent prior to his death in Jefferson Parish. The trial court denied the motion for summary judgment without assigning reasons for judgment; Kaiser and Todd's insurers sought this court's supervisory jurisdiction.

In Perque v. Avondale Shipyards, Inc., 98-C-0211, plaintiffs, survivors of Irving Perque, who died on January 15, 1992, also as a result of asbestos-related mesothelioma, filed both a survival action and a wrongful death action against a number of defendants, including Todd, and its insurer, the Fidelity and Casualty Company of New York, a/k/a Continental Insurance Company ("Fidelity"). The Perque plaintiffs claimed that Perque's death was caused by his occupational exposure to asbestos-containing substances during 1945 and 1947, while he was employed at Todd. Todd and Fidelity filed a motion for partial summary judgment claiming that the wrongful death action was barred under the worker's compensation law effective at the time of decedent's death in 1992. The trial court denied the motion for partial summary judgment, assigning extensive reasons for his judgment; Todd and Fidelity sought this court's supervisory jurisdiction.

Because the two applications for supervisory writs involve the identical question on the wrongful death issue, and because they both involve Todd, we [97-2593 La.App. 4 Cir. 3] granted the Meredith plaintiffs' motion to consolidate. The question concerning the survival action in the Meredith case will be considered separately.

Standard for deciding motion for summary judgment

Appellate courts must review summary judgments de novo, asking the same questions as do the trial courts: whether any genuine issues of material fact exist, and whether the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). In determining whether an issue is "genuine", courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Daniel v. Blaine Kern Artists, Inc., 96-1348 (La.App. 4th Cir. 9/11/96), 681 So.2d 19, writ denied, 96-2463 (La.12/6/96), 684 So.2d 934.

Wrongful death actions

Typically, summary judgments turn on the determination of whether the movant has met his burden of proving that no genuine issues of material fact exist. However, concerning the question in the wrongful death action which is common to both of these consolidated applications for supervisory writs, all parties agree that no genuine issues of material fact exist; in both cases, the decedents were employed by Todd prior to the effective date of LSA-R.S. 23:1032 of October 1, 1976, but died after that date--Meredith in 1995 and Perque in 1992. Thus, the only question to be determined is whether the movants--in each case, the employer, executive officers of the employer, and/or insurers of the employer (hereinafter collectively referred to for convenience as "Todd")--are entitled to judgment as a matter of law.

La. R.S. 23:1032(A)(1)(a), as amended by Acts, 1976, No. 147, § 1, limits employees and their beneficiaries to workers' compensation benefits for work-related injury, sickness or disease. Both employees and their beneficiaries are [97-2593 La.App. 4 Cir. 4] prohibited from suing employers, including executive officers, in tort, except for intentional acts. Prior to 1976, the immunity from suit in tort provided by La. R.S. 23:1032 did not extend to executive officers of an employer.

Citing this court's opinion in Holmes v. Pottharst, 438 So.2d 622 (La.App. 4th Cir.1983), writ denied, 447 So.2d 1076 (La.1984), Todd argues that because a cause of action for wrongful death does not arise until the employee dies, and because the decedents-employees in the consolidated cases died well after the 1976 amendments, the plaintiffs are prohibited from bringing a wrongful death action against them. Holmes holds that the law applicable to a wrongful death action is the law in effect at the time of death.

On the other hand, the plaintiffs in both consolidated cases argue that, because their decedents were exposed to asbestos prior to the 1976 amendments, while working at Todd prior to 1976, and because the decedents contracted mesothelioma as a result of that pre-1976 exposure, they are not prohibited from bringing their wrongful death actions against Todd. In support of this argument, the plaintiffs cite the Louisiana Supreme Court's opinion in Cole v. Celotex Corp., 599 So.2d 1058 (La.1992), which indicated that asbestos litigation should be considered sui generis, not subject to previously established rules. The plaintiffs claim that, despite the rule established by Holmes, Cole authorizes their wrongful death actions in the instant cases.

Unquestionably, this court directly addressed the issue presented by the instant consolidated writ applications in Holmes, 438 So.2d 622. In that case, the decedent died in February of 1990, allegedly as a result of silicosis contracted while working as a sandblaster from 1966 to 1970. Like asbestos-related lung disease, silicosis is commonly caused by occupational inhalation of a harmful irritant, silica dust. Holmes did not become aware of his occupational disease until March, 1978, when he was diagnosed. After Holmes's death, his wife and [97-2593 La.App. 4 Cir. 5] surviving children filed survival and wrongful death actions against several executive officers of the company which had employed Holmes as a sandblaster. One of the executive officers filed a motion for summary judgment, asserting that the survival action was prescribed and that the plaintiffs had no cause of action as to the wrongful death action.

In finding that the plaintiffs had no wrongful death cause of action against Holmes' employer's executive officers, this court rejected the plaintiffs' argument that the 1976 amendment to LSA-R.S. 23:1032, immunizing employers and executive officers against tort actions, should not apply when the tortious conduct occurred before the effective date of the 1976 amendment, which established that immunity. This court affirmed the trial court judgment granting the exception of no cause of action, noting that the wrongful death action "cannot arise until the victim dies and is intended to compensate the beneficiaries for damages they suffer from the moment of death and thereafter." 438 So.2d at 624. Quoting Guidry v. Theriot, 377 So.2d 319, 326 (La.1979), the court distinguished between survival and wrongful death actions as follows:

[A]lthough the wrongful death action arises from a common tort, it is a separate and distinct action from the survival action. It never existed or arose in favor of the victim.

Holmes, 438 So.2d at 624 (emphasis in original). Moreover, the court cited Smith v. Hurd, 408 So.2d 357 (La.App. 1st Cir.1981), which held that a wife had no wrongful death action against executive officers of her husband's former employer for the death of her husband, who died in 1977 as a result of silicosis caused by his constant exposure to silica dust while employed from 1969 through 1975.

The First Circuit Court has also dealt with this issue in a case involving a death caused by occupational inhalation of asbestos. In Owens v. Martin, 430 [97-2593 La.App. 4 Cir. 6] So.2d 1248 (La.App. 1st Cir.1983), aff'd, 449 So.2d 448 ...

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