Barber v. Emp'rs Ins. Co. of Wausau

• Citation: 97 So.3d 454
• Decision Date: 28 June 2012
• Docket Number: No. 2011 CA 0357.,2011 CA 0357.
• Parties: Eugene BARBER, Charles Bradley, Sr., Ted Bradley, Noah Carter, Jr., Allen Davis, Ben Davis, Jr., Ben Davis, III, et al. v. EMPLOYERS INSURANCE COMPANY OF WAUSAU.
• Court: Court of Appeal of Louisiana (US)

97 So.3d 454

Eugene BARBER, Charles Bradley, Sr., Ted Bradley, Noah Carter, Jr., Allen Davis, Ben Davis, Jr., Ben Davis, III, et al.

v.EMPLOYERS INSURANCE COMPANY OF WAUSAU.

No. 2011 CA 0357.

Court of Appeal of Louisiana, First Circuit.

June 28, 2012.

Richard J. Fernandez, Amber E. Cisney, L. Eric Williams, Metairie, LA, Lynn E. Williams, Baton Rouge, LA, for Plaintiffs–Appellants Eugene Barber, et al.

H. Carter Marshall, Kevin R. Tully, Lawrence J. Ernst, Christovich & Kearney, LLP, New Orleans, LA, for Defendant–Appellee Employers Insurance Co. of Wausau.

Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.

PARRO, J.

[1 Cir. 2]In this toxic materials exposure and work hazards case, this appeal was filed on behalf of ten deceased employees ¹ whose wrongful death and survivorship claims against their former employer were dismissed as prescribed. After reviewing the record, we affirm the judgment in part, vacate in part, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

This suit was filed on September 9, 2008, by or on behalf of seventy-five former employees of Central Wood Preserving, Inc. (Central Wood) against Employers Insurance Company of Wausau (Employers), which insured three executive officers of the firm who were named as defendants.² The petition was later amended to add Central Wood as a defendant. All of the plaintiffs ³ were employed by Central Wood at some point between 1950 and 1976. Their petition alleges that during their employment, they were exposed to toxic materials, including creosote, asbestos, and silica, and as a result of this exposure, suffered various serious illnesses, some of them fatal. They also allege that their exposure to other hazardous working conditions caused damages such as hearing loss and disc degeneration. The claims of the ten appellants in this case, all of whom are deceased, are for wrongful death and survivorship damages.

In July 2010, Employers filed exceptions raising the objection of prescription concerning the claims of two of the plaintiffs, Arthur Williams and Easley Wallace. After a hearing on August 9, 2010, the court sustained the exception as to the claims of Arthur Williams and dismissed his claims. The judgment also sustained the exception as to Easley Wallace's “claim for damages sustained as the result of prostate cancer only” and dismissed that portion of his claim. The judgment was signed on August 27, [1 Cir. 3]2010, and Williams and Wallace filed an application for a supervisory writ.

While that writ application was pending, in September 2010, Employers filed two additional exceptions raising the objection of prescription as to the claims of eighteen additional plaintiffs. The court signed a judgment on December 9, 2010, overruling the exceptions as to claims for hearing loss, lung abnormalities, and cardiomegaly filed by seven plaintiffs.⁴ In oral reasons for judgment, the court sustained the exceptions as to some or all of the claims of seventeen plaintiffs, stating:

The peremptory exceptions of prescription are sustained as to all other claims by Ben Davis; Percy Davis; Teddy Guy; David Holliday; Clarence Lee; Charles Moten; Henry Taylor; Freddie Thompson; Isiah Davis; Henry Fisher; Joe Fisher, Jr.; John Tate; Joe Louis Wallace; Josh Wallace; [Lewis] Alfred Wallace; Spencer Wallace; and [Earnest] Whitley.

The court also explained that under certain circumstances, the prescriptive period does not begin to run until a plaintiff knew or should have known that he or she had a reasonable basis for pursuing a claim. Acknowledging that these seventeen plaintiffs—and the two whose claims had been dismissed in the prior judgment—may not have known of any reasonable basis until shortly before filing suit, the court stated that the law still required reasonable diligence on the part of the plaintiffs. In this case, the court found the plaintiffs did nothing and took no action. Therefore, the court ruled their claims were prescribed. The December 2010 judgment did not expressly dismiss any plaintiff's suit in its entirety.

On December 17, 2010, this court acted on the earlier writ concerning the claims of Arthur Williams and Easley Wallace. With reference to Arthur Williams, since the district court dismissed the suit in its entirety as to less than all of the parties, this court determined the August 27, 2010 judgment was an appealable partial final judgment. Therefore, the writ was denied, and that portion of the judgment was remanded to the district court with instructions to grant Williams an appeal. As to Easley Wallace, the writ was also denied, but this court declined to exercise its supervisory jurisdiction, because the August 2010 judgment did not expressly dismiss all of Wallace's claims. [1 Cir. 4]Therefore, he would have an adequate remedy on appeal after a final judgment on the merits.

On December 20, 2010, nineteen plaintiffs appealed the August 27, 2010 and December 9, 2010 judgments that had dismissed all or part of their claims. This court issued a rule to show cause, noting that the December 2010 judgment appeared to be a partial judgment that had not been designated as final. This court's record was supplemented with a judgment signed on May 18, 2011, in which the district court reiterated that the exceptions of prescription were sustained by the December 2010 judgment as to Isiah Davis, Henry Fisher, Joe Fisher, Jr., Joe Louis Wallace, Josh Wallace, Jr., Lewis Alfred Wallace, Spencer Wallace, and Earnest Whitley. The May 2011 judgment also designated the December 2010 judgment as final regarding the claims of these eight plaintiffs, there being no just reason for delay.⁵ With this designation, these eight plaintiffs and Arthur Williams had final, appealable judgments.

However, the status of several plaintiffs remained unclear, and this court issued an interim order on August 15, 2011, stating:

The May 18, 2011 judgment designates as final for purposes of immediate appeal the December 9, 2010 rulings regarding eight plaintiffs. However, the May judgment does not refer to the claims of John Tate, Freddie Thompson or Easley Wallace, all of whom are referred to as appellants in various pleadings filed with this Court. Accordingly, the above entitled matter being presently before this Court,

IT IS HEREBY ORDERED that the case be remanded for the limited purpose of allowing the parties to submit memoranda or pleadings to the district court to clarify the status of the appeal, if any, of these three plaintiffs. The appellate record shall be supplemented with any such memoranda, pleadings, or further actions of the district court, within thirty days of this Court's action.

In response to this order, the district court signed a judgment on September 12, 2011, clarifying that the exception of prescription as to the claims of John Tate had also been sustained in the December 2010 judgment, and as to his claims, that judgment was designated as final, with no just reason for delay.

With this clarification, for purposes of this appeal, Arthur Williams has a partial [1 Cir. 5]judgment against him that this court, in its December 17, 2010 writ action, determined was final under LSA–C.C.P. art. 1915(A)(1),⁶ and nine of the plaintiffs who brought this appeal have partial judgments rendered against them on December 9, 2010, which were designated as final by the district court in judgments rendered May 18, 2011, and September 12, 2011, ⁷ pursuant to LSA–C.C.P. art. 1915(B)(1).⁸ On December 20, 2010, these ten plaintiffs had filed a notice of appeal of the August 27, 2010 and December 9, 2010 judgments.⁹

In a writ action on October 14, 2011, a panel of this court considered the district court's response to this court's rule to show cause and interim order, maintained the appeal as to the nine plaintiffs, and dismissed the appeal as to the other partieswhose claims were the subject of this court's May 9, 2011 rule to show cause order. However, the district court did not provide oral or written reasons for its designations of finality in its May 18 and September 12, 2011 judgments concerning the nine plaintiffs whose claims were the subject of this court's rule to show cause. Therefore, this court must independently determine whether the Article 1915(B) designations were appropriate under the facts of this case. The October 14, 2011 action of the writ panel referred this determination to the panel to which the appeal is assigned. Therefore, before this [1 Cir. 6]panel can address the merits of the appeal, we must decide whether the Article 1915(B) designations of finality were appropriate as to these nine plaintiffs.

DESIGNATION OF FINALITY

In Motorola, Inc. v. Associated Indem. Corp., 02–1351 (La.App. 1st Cir.10/22/03), 867 So.2d 723, 732, this court ruled that the failure to provide reasons for a designation of finality under Article 1915(B) was not fatal to this court's jurisdiction over the appeal. Rather, in cases in which the district court designates a partial judgment as final and the reasons are neither apparent nor provided for us by the district court, we would conduct a de novo review. Id. In so doing, this court would apply the nonexclusive list of factors that Louisiana appellate courts have adopted from the federal courts in determining whether a partial judgment is final, namely: (1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim that could result in setoff against the judgment sought to be made final; and (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. Id.; see also R.J. Messinger, Inc. v. Rosenblum, 04–1664 (La.3/2/05), ...