Carter v. Avondale Shipyards, Inc., 80-C-2903

• Decision Date: 16 November 1981
• Docket Number: No. 80-C-2903,80-C-2903
• Citation: 415 So.2d 174
• Parties: Jessie L. CARTER v. AVONDALE SHIPYARDS, INC.
• Court: Louisiana Supreme Court

Page 174

415 So.2d 174

Jessie L. CARTER v. AVONDALE SHIPYARDS, INC.

No. 80-C-2903.

Supreme Court of Louisiana.

Nov. 16, 1981.

On Rehearing May 17, 1982.

Rehearing Denied July 2, 1982.

Stewart E. Niles, Jr., of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-applicant.

David Gertler, of Gertler & Gertler, New Orleans, James L. Donovan, of Donovan & Lawler, Metairie, for plaintiff-respondent.

LEMMON, Justice.

This is a dispute between successive employers over liability for workmen's compensation benefits due plaintiff on account of total and permanent disability caused by silicosis.

Plaintiff was employed by Dibert, Bancroft & Ross (DBR) as a sand mixer from 1940 to 1968, working daily with materials which can cause silicosis. Plaintiff left DBR in 1968 and began working for Avondale Shipyards, Inc. in essentially the same type of employment.

In 1972 plaintiff's doctor determined that he had contracted silicosis. Plaintiff continued working until 1977, when he left his employment because his condition had become totally disabling.

Plaintiff then filed this suit against Avondale, who began paying benefits and filed a third party demand against DBR. The trial court found plaintiff was totally and permanently disabled, but dismissed Avondale's third party demand, finding that the evidence failed to establish plaintiff had contracted silicosis while employed by DBR. ¹

While Avondale's appeal was pending, plaintiff and Avondale executed a court-approved compromise. The court of appeal then affirmed the denial of the third party demand by a divided vote in an unpublished opinion.

We granted certiorari to review that judgment. 396 So.2d 887 (La.).

I.

Although plaintiff worked in the presence of silica flour (ground sand) and silica dust during his entire term of employment at DBR, he was not furnished with a respirator during the early part of that employment. However, the hopper into which sand was loaded for transfer to the mixing container had a closed top, except for a two-foot opening for introduction of sand.

At Avondale plaintiff also worked as a sand mixer after the first year, but the hopper had an open top and had to be tilted to empty the sand into the mixing container. In this regard plaintiff testified that there was more visible dust in the air at Avondale.

No medical evidence was available as to plaintiff's condition prior to 1972. ² In that year plaintiff consulted Dr. Brown, who ordered X-rays and referred plaintiff for lung function evaluation. Although the test showed some lung impairment, Dr. Brown advised plaintiff to continue working. Plaintiff consulted Dr. Brown periodically, and in 1976 the doctor noted progressive changes compatible with silicosis. In 1977 Dr. Brown advised plaintiff to discontinue working because of the disabling disease.

At trial Dr. Brown testified that the described exposure at DBR was consistent with and could contribute to the development of silicosis.

Dr. Weill, a specialist in occupational lung diseases, testified that the induction time for silicosis is variable, depending on the dose, but that in present day foundry work the induction time is generally 20 to 40 years. He noted that it would be very unusual for a foundry worker to develop silicosis after only ten years, stating the induction time is "generally much longer". He concluded that the major causal factor of plaintiff's silicosis diagnosed in 1972 was the 28 years of exposure at DBR and that it was a "very low order probability" that the later heavy variable doses after plaintiff's 28 years of exposure was the primary causative factor.

II.

Analyzing the evidence, the court of appeal suggested the conclusion that it was more probable than not that the development of silicosis occurred to some extent during plaintiff's employment at DBR. However, the intermediate court concluded that the trial judge's contrary factual finding was not clearly wrong.

Sufficiency of evidence is a question of law, not of fact. In civil cases the essential elements of the claim, including causation, must be proved by a preponderance of the evidence. The evidence is sufficient to constitute a preponderance when the proof, taken as a whole, establishes that the fact or causation sought to be proved is more probable than not. Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972).

When, as here, there is no dispute in the evidence, the trial court does not truly perform a credibility function, and without resolving conflicts in proof the trial court simply determines as a matter of law whether the fact or causation at issue was shown to be more probable than not. On appellate review in such cases the manifest error rule is not applicable, since there was no determination of credibility or weighing of conflicting evidence by the trial court. ³ The reviewing court simply applies the same "more probable than not" standard to the undisputed record evidence and determines as a matter of law whether the evidence is sufficient to constitute a preponderance.

On reviewing the record, we agree with the court of appeal that the undisputed evidence shows, more probably than not, that the continuing exposure to silica dust during plaintiff's 28 years of employment at DBR was a substantial causative factor in his development of the occupational disease of silicosis. Indeed, the record undeniably establishes that the exposure at Avondale, substantially similar or only slightly worse than the exposure at DBR, could not alone have caused the silicosis when it was diagnosed four years after he began working at Avondale. Nevertheless, the evidence also preponderates to establish that the exposure at Avondale was likewise a substantial causative factor.

We therefore conclude that the work conditions during plaintiff's employment at both DBR and Avondale substantially contributed to plaintiff's ultimate disability from occupational disease. The lower courts erred in reaching contrary conclusions on this record.

III.

The question of the respective liability of successive employers, when conditions during the terms of each employment are substantial causative factors in the employee's gradual development of an occupational disease, has not been extensively presented to Louisiana courts. R.S. 23:1031.1, pertaining to occupational diseases, does not address the question. ⁴

Some states assign liability to the employer for whom the claimant was working at the time the disease became disabling, if that employment contributed to the development of the disease. ⁵ This "last injurious exposure" approach has the desirable feature of being definite, but it is basically unfair when conditions in one or more previous employments substantially contributed to the development of the disease. Such an approach also might induce initial employers to discharge not yet disabled employees who have been exposed to conditions favorable to development of occupational diseases or might discourage other employers from hiring persons who have formerly worked under such conditions.

Other states apportion the liability among employers whose conditions of employment have contributed substantially to the disabling disease. See generally 4 A. Larson, Workmen's Compensation, Section 95.00 et seq. (1981). See also Maynard v. State Workmen's Compensation Comm'r, 239 S.E.2d 504 (W.Va.1977); Colonial Ins. Co. v. Industrial Acc. Comm'n, 29 Cal.2d 79, 172 P.2d 884 (1946), codified, Cal.Labor Code, § 5500.5 (West 1971).

In Louisiana a former employer has been held liable when the term of employment with the second employer was so brief as to be deemed non-causative. Hanlon v. Sline Indus-Painters, 358 So.2d 700 (La.App. 3d Cir. 1978), cert. denied, 360 So.2d 1177. Nevertheless, even when the length of the second employment is sufficient to support a finding that the second employment was a causative factor in the development of the occupational disease, there is no compelling reason that the former employer should not remain liable when that former employment has been proved substantially causative of the developmental disease.

Although each case must be decided on its own facts and circumstances, we conclude that apportionment should be applied when such a result achieves fundamental fairness. In the present case, as noted earlier, the conditions of employment during plaintiff's work with both employers substantially contributed to the development of silicosis and to his ultimate disability. We accordingly hold that the liability for compensation benefits should be apportioned between those two employers. Since the employers have agreed upon the method of apportionment, it is not necessary to decide that issue in this case. ⁶

For these reasons the judgments of the lower courts on the third party demand are reversed, and judgment is now rendered granting the third party demand. Costs in the trial court are assessed in equal proportions to defendant and third party defendant. Costs in both appellate courts are assessed to third party defendant.

WATSON, J., concurs in the result.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents for reasons assigned by MARCUS, J.

MARCUS, Justice (dissenting).

Workmen's compensation liability for an employee's occupational disease or personal injury is most frequently assigned to his employer at the time of the most recent exposure or injury bearing a causal relationship to the disability. 4 A. Larson, Workmen's Compensation Law, § 95.00 et seq (1981). I consider this to be a better result than that reached by the majority in this case. Accordingly, I respectfully dissent.

ON REHEARING

DIXON, Chief Justice.

Jessie L. Carter sued Avondale Shipyards, Inc., his employer from 1968 to 1977, for workman's compensation, claiming disability from silicosis, an occupational disease under R.S. 23:1031.1. Avondale answered, alleging that it had begun paying compensation to ...