Ayo v. Johns-Manville Sales Corp., JOHNS-MANVILLE

• Citation: 771 F.2d 902
• Decision Date: 23 September 1985
• Docket Number: No. 85-3134,JOHNS-MANVILLE,85-3134
• Parties: Prod.Liab.Rep.(CCH)P 10,796 Mary AYO, Widow of Murphy Ayo, et al., Plaintiffs-Appellants, v.SALES CORPORATION, et al., Defendants-Appellees. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 902

771 F.2d 902

Prod.Liab.Rep.(CCH)P 10,796

Mary AYO, Widow of Murphy Ayo, et al., Plaintiffs-Appellants, v. JOHNS-MANVILLE SALES CORPORATION, et al., Defendants-Appellees.

No. 85-3134

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Sept. 23, 1985.

M.H. Gertler, Cheryl A. Denney, New Orleans, La., for plaintiffs-appellants.

Windhorst, Pastorek & Gaudry, Keith G. Contreary, Gretna, La., for Celotex Corp.

Christovich & Kearney, Michael M. Christovich, New Orleans, La., for Armstrong World Industries.

Porteous, Hainkel, Johnson & Sarpy, James S. Thompson, New Orleans, La., for Pittsburg Corning Corp.

Watson, Blanche, Wilson & Posner, Felix R. Weill, Mary H. Thompson, Baton Rouge, La., for Nicolet, Inc.

Bryan, Nelson, Allen & Schroeder, Maria I. O'B Stephenson, New Orleans, La., for Rock Wool Mfg. Co.

Bienvenu, Foster, Ryan & O'Bannon, William L. Brockman, New Orleans, La., for GAF Corp. Michael T. Cali, John C. Reynolds, New Orleans, La., for Owens Corning Fiberglas Corp.

McGlinchey, Stafford, Mintz, Cellini & Lang, J. Michael Johnson, Linda S. Harang, New Orleans, La., for Combustion Engineering, Inc.

William C. Kaufman, III, Baton Rouge, La., for Fibreboard Corp. &/or Pabco Corp.

O'Keefe, O'Keefe & Berrigan, Stephen M. Bernstein, New Orleans, La., for Forty Eight Insulations, Inc.

Ethel H. Cohen, Robert E. Kerrigan, Jr., New Orleans, La., for Southern Textile Corp.

Chaffe, McCall, Phillips, Toler & Sarpy, Robert S. Rooth, Jonathan C. McCall, New Orleans, La., for Owens Illinois, Inc.

Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Kathleen M. Overcash, Bert Wilson, Lafayette, La., for Keene Corp.

Landry, Watkins & Bonin, Jacob D. Landry, New Iberia, La., for Flintkote Corp.

Montgomery, Barnett, Brown & Read, Sylvia Landry, New Orleans, La., for Raymark Industries, Inc.

Leach & Paysse, Michael A. Britt, New Orleans, La., for Atlas Turner, Inc.

Lugenbuhl, Larzelere & Ellefson, Vance E. Ellefson, Anthony J. Staines, New Orleans, La., for Eagle Picher.

Appeal from the United States District Court for the Eastern District of Louisiana

Before REAVLEY, TATE, and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

After subjecting himself to the dual hazards of cigarette smoking and asbestos work for most of his adult life, Murphy Ayo died from carcinoma of the lung on July 2, 1977, at the age of forty-eight. Plaintiff-Appellant Mary Ayo on behalf of herself and her children brought this diversity suit against Johns-Manville Sales Corporation and numerous other asbestos manufacturers, distributors, and sellers on July 28, 1983, alleging that the defendants caused or contributed to her husband's and her children's father's death. The complaint charged two causes of action: (1) a survival action and (2) a wrongful death action. The district court held that, under Louisiana law, the survival action had been perempted and the wrongful death action had been prescribed; therefore, the court granted summary judgment in favor of all the defendants. Plaintiffs have appealed. Concluding that the district court correctly determined that summary judgment was proper, we affirm.

Before discussing the facts and legal issues involved in the case, we pause briefly to note the standard of review for the appeal of a summary judgment. The standard of review at the appellate level remains the same as at the trial level. Simon v. United States, 711 F.2d 740 (5th Cir.1983). A summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. United States Steel Corp. v. Darby, 516 F.2d 961 (5th Cir.1975); Fed.R.Civ.P. 56(c). On appeal the record must be viewed in the light most favorable to the nonmovant. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam); National Hygenics, Inc. v. Southern Farm Bureau Life Insurance Co., 707 F.2d 183 (5th Cir.1983).

I. FACTUAL AND PROCEDURAL BACKGROUND

We now turn to the facts presented by the summary judgment evidence. Murphy Ayo died on July 2, 1977, three months after discovering he had lung cancer. Although Mrs. Ayo never inquired at the time of her husband's death as to the cause of his lung cancer, she assumed that his habit of smoking two packs of cigarettes per day for thirty years caused the cancer. Mrs. Ayo apparently did not consider that her husband's lung cancer could have been occupationally related until his brother, also an asbestos insulation worker, died in 1982 of lung cancer. At that time the brother's widow mentioned that she had sought legal advice concerning her husband's death, and she urged Mrs. Ayo to do the same.

In late 1982 Mrs. Ayo contacted a law firm about her husband's death. After reviewing her husband's medical records, obtained for her by the law firm in February 1983, Mrs. Ayo realized for the first time that her husband's occupation may have played a role in his death. She then filed this suit on July 28, 1983, over six years after her husband's death.

The summary judgment evidence also included the deposition of Murphy Ayo's physician, Dr. Horace Baltz. Dr. Baltz's deposition does not reveal that he ever told Mrs. Ayo that her husband's death was caused by cigarette smoking. He also testified that while he never told Mrs. Ayo that her husband's cancer could have been caused by exposure to asbestos, he did discuss with her the fact that as an asbestos worker her husband worked in an environment highly contaminated with dangerous airborne particles. ¹ Additionally, he testified that he told Mrs. Ayo that her husband's status as an asbestos worker could have contributed to the problems he was suffering. After reviewing the summary judgment evidence, the district court held that Mr. Ayo's death was sufficient to put the plaintiffs on notice of their two causes of action. Since plaintiffs did not bring their suit for over six years after being placed on notice of the causes of action, the court held that the actions were barred by the applicable one year prescription and peremption periods of Louisiana law.

II. SURVIVAL AND WRONGFUL DEATH ACTIONS

Plaintiffs assert that the district court erred in finding that they were placed on notice of their causes of action when Mr. Ayo died. Rather they contend that they were not placed on notice until February 1983 when Mrs. Ayo reviewed the medical records with her attorneys and thus this action was timely instituted when it was filed a short time later on July 28, 1983. In order to understand the plaintiffs' contentions, a discussion of their two causes of action and the applicable Louisiana limitation provisions is necessary.

Under Louisiana law a decedent's statutorily designated beneficiaries have two possible causes of action against a tortfeasor who causes the death of the decedent. A beneficiary may bring a survival action, i.e., an action for damages the injured person would have had, had he lived. A beneficiary may also bring a wrongful death action, i.e., an action for the damages the beneficiaries sustained as a result of the death. The two causes of action are separate and distinct causes of action. Guidry v. Theriot, 377 So.2d 319, 322 (La.1979). The Louisiana Civil Code sets forth this recovery scheme and, at the same time, sets forth the applicable limitations period for a survival action:

(1) The right to recover all other damages caused by an offense or quasi-offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of:

(a) The surviving spouse and child or children of the deceased, or either such spouse or such child or children;

(b) The surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and

(c) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

(2) The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased.

La.Civ.Code Ann. art. 2315 D (West Supp.1985). As the statute expressly states, the period of limitations for a survival action is one year. While the statute does not state the period of limitations for a wrongful death action, that period is also one year. La.Civ.Code Ann. art. 3492 (West Supp.1985). ²

Louisiana law provides two methods for barring an action as being untimely: (1) prescription and (2) peremption. Whether a particular time period is prescriptive or peremptive is a matter determined by the Louisiana courts. The major factor used by a court in determining whether a statute is prescriptive or peremptive is whether the statute creating the cause of action also provides a time period in which the action must be asserted. Pounds v. Schori, 377 So.2d 1195 (La.1979). When the statute creating the cause of action provides the time period in which the action must be asserted, the courts are likely to find the time period is peremptive; when the statute creating the cause of action does not provide a time period, the courts are likely to find the limitations period is prescriptive. Id. Thus, the courts have held that the one year period of limitations for a survival action is peremptive, McClendon v. State Department of Corrections, 357 So.2d 1218 (La.Ct.App.1978), and that the one year period of limitations for the wrongful death action is prescriptive. Guidry v. Theriot, 377 So.2d at 326.

When prescription applies, the prescriptive period does not begin to run until the plaintiff has actual or constructive knowledge of the facts which would entitle him to bring suit. Jones v. Philco-Ford Corp., 441 So.2d 1251 (La.Ct.App.1983), original opinion reinstated, 452 So.2d 370 (La.Ct.App.1984); Lynch v. Foster, 376 So.2d 342 (La.Ct.App.), writ denied, 378 So.2d 433 (La.1979). This is the Louisiana doctrine of contra non valentem agere non...