869 So.2d 930 (La.App. 4 Cir. 2004), 2003-CA-1079, Vodanovich v. A.P. Green Industries, Inc.

CourtCourt of Appeal of Louisiana (US)
Citation869 So.2d 930,2003-1079 La.App. 4 Cir. 3/3/04
Docket Number2003-CA-1079.
PartiesCharles V. VODANOVICH v. A.P. GREEN INDUSTRIES, INC., et al.
Date03 March 2004

Page 930

869 So.2d 930 (La.App. 4 Cir. 2004)

2003-1079 La.App. 4 Cir. 3/3/04

Charles V. VODANOVICH

v.

A.P. GREEN INDUSTRIES, INC., et al.

No. 2003-CA-1079.

Court of Appeals of Louisiana, Fourth Circuit

March 3, 2004.

Page 931

Steven M. Jupiter, Leblanc & Waddell, LLC, New Orleans, LA, for Plaintiff/Appellant.

R. Dean Church, Jr., Daniel W. Dilzell, Peter S. Koeppel, Best Koeppel, New Orleans, LA, for Appellee, Dixie Machine Welding and Metal Works, Inc.

H. Philip Radecker, Jr., Lawrence G. Pugh, III, Frank P. Accardo, Scott R. Hymel, Tonya M. Short, Alison S. Borison, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, LA, for Appellee, Sank, Inc., Formerly known as Buck Kreihs Company, Inc.

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).

Judge EDWIN A. LOMBARD.

This is a wrongful death suit in which the plaintiff appeals the trial court's finding that there were no genuine issues of material fact with regards to plaintiff being exposed to asbestos as a result of the defendants' work activities. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Vodanovich ("Plaintiff") worked as a longshoreman from 1948 to 1986. As a longshoreman the plaintiff was required to load and unload asbestos cargo at several wharves along the Mississippi River. It is alleged that various maintenance repair companies such as Buck Kreihs and Dixie machine performed maintenance work aboard the same ships that the plaintiff was loading and unloading. On November of 2001, the plaintiff was diagnosed with malignant mesothelioma. Subsequently, the plaintiff died on May 20, 2002. Prior to his death the plaintiff filed suit on February 15, 2002, naming as defendants, among others, Sank, Inc., f/k/a Buck Kreihs Company, Inc. and Dixie Machine Welding and Metal Works, Inc. (collectively "Defendants").

The defendants filed motions for summary judgment on January 9, and February 5, 2003 respectively. The defendants contend that there was no connexity between their actions and the plaintiff's contraction of mesothelioma. Specifically, the defendants argue that the plaintiff could

Page 932

not prove exposure. The trial court granted defendants' motion for summary judgment and dismissed plaintiff's case. This subsequent appeal followed.

The sole issue on appeal is whether the trial court erred in granting the defendants' motion for summary judgment by failing to construe factual inferences drawn from the evidence in favor of the plaintiff, and finding that the defendants met their burden of proof.

LAW AND ANALYSIS

In Pierre-Ancar v. Browne-McHardy Clinic, 2000-2410 (La.App. 4 Cir. 1/16/02), 807 So.2d 344, cert. denied, 2002-0509 (La.4/26/02), 814 So.2d 558, this Court discussed the criteria to be used by an appellate court in reviewing a summary judgment, as follows:

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230. Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966.

The initial burden of proof remains on the movant to show that no genuine issue of material fact exists. However, if the movant will not bear the burden of proof at trial, his burden on the motion requires him not to negate all essential elements of the plaintiff's claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966(C)(2); Fairbanks v. Tulane University, 98-1228 (La.App. 4 Cir. 3/31/99), 731 So.2d 983, 985.

After the movant has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir 9/10/97), 699 So.2d 895, 897. When a motion for summary judgment is properly supported, the non-moving party may not rest on the mere allegations of his pleading, but his response, by affidavits or as otherwise provided by law,...

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