Austin v. Abney Mills, Inc.

• Citation: 824 So.2d 1137
• Decision Date: 04 September 2002
• Docket Number: No. 2001-C-1598.,2001-C-1598.
• Parties: Alfred AUSTIN, et al. v. ABNEY MILLS, INC. et al.
• Court: Louisiana Supreme Court

824 So.2d 1137

Alfred AUSTIN, et al. v. ABNEY MILLS, INC. et al.

No. 2001-C-1598.

Supreme Court of Louisiana.

September 4, 2002.

Rehearing Denied September 23, 2002.

John F. Dillon, New Orleans, Juan A. Tramontana, Bruscato, Tramontana & Wolleson, Monroe, Donni E. Young, Scott C. Taylor, Paul Benton, Ness, Motley, Loadholt, Richardson & Poole, Barnwell, SC, Robert E. Arceneaux, New Orleans, Counsel for Applicant.

Kay B. Baxter, David A. Barfield, Gaye Nell Lott Currie, Jackson, MS, Arthur W. Stout, III, Deutsch, Kerrigan & Stiles, William C. Ellison, Joell M. Keller, William J. Hamlin, Bordelon, Hamlin & Theriot, Jonathan M. Herman, Crull, Castaing & Lilly, Dwight C. Paulsen, III, Lemle & Kelleher, New Orleans, Jeffrey P. Hubbard, Peter L. Doran, Jackson, MS, Donald J. Miester, Jr., New Orleans, Charles V. Giordano, Miranda, Warwick & Milazzo, Metairie, Mickey P. Landry, Baton Rouge, Frank J. Swarr, New Orleans, Landry & Swarr, Counsel for Respondent.

Julie A. Ardoin, Scott R. Bickford, Stephen B. Murray, John R. Martzell, Christopher H. Sherwood, Joseph A. Race, New Orleans, Counsel for Murray Law Firm, Martzell & Bickford (Amicus Curiae).

Mickey P. Landry, Baton Rouge, Frank J. Swarr, New Orleans, Counsel for Victor D. Carlock, Sr. (Amicus Curiae).

Jules K. Boudreaux, Houma, Perry J. Roussel, Jr., Gerolyn P. Roussel, La Place, Counsel for Roussel & Roussel (Amicus Curiae).

Mickal P. Adler, Brian C. Bossier, Metairie, Marc E. Devenport, Kenner, Erin H. Boyd, Metairie, Counsel for Avondale Industries, Inc. (Amicus Curiae).

Nancy Picard, Robert H. Urann, Metairie, Counsel for Louisiana State Bldg. & Construction Trades (Amicus Curiae).

Brian F. Blackwell, Steven M. Jupiter, Jena S. LeBlanc, Cameron R. Waddell, Jules B. LeBlanc, IV, Baton Rouge, Counsel for Louisiana AFL/CIO (Amicus Curiae).

Denis P. Juge, Metairie, Counsel for Louisiana Association of Business and Industry (Amicus Curiae).

Kaye N. Courington, Leigh A. Schell, New Orleans, Counsel for Hopeman Brothers, Inc. (Amicus Curiae).

Johanna G. King, Gary A. Lee, New Orleans, Counsel for Peter Territo, Steven Kennedy (Amicus Curiae).

David M. Bienvenu, Jr., Jennifer M. Sigler, William S. McKenzie, John R. Tharp, Baton Rouge, Counsel for Ethyl Corporation.

Gregory M. Anding, Scott D. Johnson, Gayla M. Moncla, Barrye P. Miyagi, Robert E. Dille, Gary A. Bezet, Baton Rouge, Counsel for Exxon Mobile Corporation, Texaco Inc., Chevron Chemical Co., BASF Corporation, and Georgia Pacific Corp. (Amicus Curiae).

CALOGERO, Chief Justice.¹

The plaintiff, Mr. Alton Hogue, suffers from malignant pleural mesothelioma, a long-latency asbestos-related disease, which he alleges was caused by excessive exposure to asbestos and asbestos-containing materials during his employment with International Paper Company and Arizona Chemical Company from 1955 to 1998. Mr. Hogue filed a tort suit under La. Civ.Code art. 2315 against his employers and unnamed executive officers. The defendants moved for summary judgment invoking immunity under La. Rev. Stats. 23:1031.1 and 23:1032. The district court granted summary judgment in favor of the defendants, and the court of appeal affirmed, albeit on different grounds. We granted the writ application to review the correctness of those rulings. For the reasons set forth below, we adopt the significant exposure theory articulated in Cole v. Celotex, 599 So.2d 1058 (La.1992), for fixing the date of accrual for a cause of action under La. Civ.Code art. 2315 in a long-latency occupational disease case in which the plaintiff suffers from the disease. Applying that test to determine the applicable law, we conclude that the defendants are not entitled to summary judgment as a matter of law and remand the matter for further proceedings.

I.

Mr. Hogue was employed by International Paper Company from 1955 to 1960, and thereafter until his retirement in 1998 by Arizona Chemical Company. In December 1998, Mr. Hogue was diagnosed as having malignant pleural mesothelioma, which he alleges was caused by exposure to asbestos and asbestos-containing materials during the course of his employment with both companies. On December 30, 1997, Mr. Hogue and his wife, Betty, along with a large group of other similarly-situated plaintiff's who claim they have contracted a variety of asbestos-related diseases, filed suit against numerous asbestos manufacturers and suppliers, asserting claims in negligence, intentional tort, and fraud. On July 20, 1999, Mr. Hogue amended his petition to add as defendants his former employers, International Paper Company and Arizona Chemical Company, as well as unnamed directors and executive officers of the companies (herein referred to as "the employer defendants"), stating claims in negligence and intentional tort. In his petition, Mr. Hogue alleges that during his employment with the employer defendants, he suffered excessive exposure to asbestos and asbestos-containing materials that caused him injuries.

II.

In 1952, the legislature provided for the coverage of occupational diseases under Louisiana's workers' compensation law. La.Rev.Stat. 23:1031.1(A) (1952). The statute defined "occupational disease" by identification, stating in part that "[a]n occupational disease shall include only those diseases hereinafter listed when contracted by an employee in the course of his employment as a result of the nature of the work performed." La.Rev.Stat. 23:1031.1(A) (1952) (emphasis added). This "exclusive list," as we observed in O'Regan v. Preferred Enterprises, Inc., 98-1602, p. 6 (La.3/17/00), 758 So.2d 124, 129 (on rehearing), included diseases caused by contact with specific substances, namely the diseases of contact poisoning from enumerated sources, asbestosis, silicosis, dermatosis, and pneumoconiosis. La.Rev.Stat. 23:1031.1(A) (1952). In 1958, by Acts 1958, No. 39, the legislature added tuberculosis as one of the specified occupational diseases for certain hospital workers. La.Rev.Stat. 23:1031.1(A) (1958). Although the 1952 and 1958 enactments listed specific occupational diseases, in 1975 by Acts 1975, No. 583, § 2, the legislature revised La.Rev.Stat. 23:1031.1(A) by removing the list of specific diseases for which there was coverage under workers' compensation and substituting the following definition:

An occupational disease shall mean only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.

The parties do not dispute that La.Rev. Stat. 23:1031.1(A) since the 1975 amendment thereto would include mesothelioma as an occupational disease covered by the Louisiana workers' compensation law.

Additionally, La.Rev.Stat. 23:1032 provides that workers' compensation benefits are the exclusive remedy of an employee for an injury or compensable sickness or disease arising out of and in the course of employment, except for those resulting from intentional acts. In 1976, the legislature amended La.Rev.Stat. 23:1032 to extend statutory immunity from tort liability to "any officer, director, stockholder, partner, or employee" of the employer.²

III.

In February 2000, the employer defendants filed a motion for summary judgment claiming they have immunity from tort liability under La. Rev. Stats. 23:1031.1 and 23:1032. In their memorandum accompanying the motion, the employer defendants specifically allege that the cause of action for, and the right to, workers' compensation benefits is governed by the date of disability. Thus, they argue that once an employee has a disability caused by a disease contracted as a result of his employment, the workers' compensation law provides his exclusive remedy, and the employer's tort immunity follows. The employer defendants point out that the workers' compensation law makes no reference to when a disease is contracted, only that it be contracted, and contraction is not defined. The employer defendants allege that Mr. Hogue's cause of action for workers' compensation benefits arose when he became disabled in 1998 and, therefore, his cause of action for benefits did not exist prior to the 1975 change in La.Rev.Stat. 23:1031.1. They assert that, because Mr. Hogue's cause of action for workers' compensation benefits arose after the effective date of La.Rev.Stat. 23:1031.1, he is limited to recovery of workers' compensation benefits, and the employers have complete immunity. In support of their motion, the defendants submitted a medical report indicating that Mr. Hogue was diagnosed with mesothelioma in December of 1998 and that he first experienced symptoms of the disease in July 1998, when he ceased working due to disability.

In his opposition to the employer defendants' motion, Mr. Hogue asserts that the law that governs this case of latent occupational disease is the law in effect when the injury-producing exposures occur, citing Cole v. Celotex, supra, that the pre-1975 workers' compensation laws apply to this case of mesothelioma because injury-producing exposures to asbestos occurred prior to 1975, and, therefore, the subsequent legislative changes to La.Rev.Stat. 23:1031.1 or 23:1032 cannot be applied to abrogate Mr. Hogue's vested rights, see Walls v. American Optical Corp., 98-0455 (La.09/08/99), 740 So.2d 1262. In opposing the motion, Mr. Hogue presented employment records and a portion of his deposition in which he discussed his job duties and exposure to asbestos. He also included the affidavit of Dr. Victor Roggli, a board-certified pathologist who had reviewed the medical records and Mr. Hogue's deposition. Dr. Roggli concluded that Mr. Hogue suffers from malignant pleural mesothelioma, well-differentiated papillary epithelial variant, caused by exposure to asbestos. He stated that mesothelioma caused by occupational asbestos exposure is a disease that typically requires twenty years between the first exposure and its...