Denoux v. Vessel Management Services, Inc.

• Decision Date: 21 May 2008
• Docket Number: No. 2007-C-2143.,2007-C-2143.
• Citation: 983 So.2d 84
• Parties: Andre J. DENOUX, Kurt Labeaud, Theron J. Washington, David Dickerson, Robert P. Williams, Jr., Richard W. Blackman, Christopher R. Booker, Horace Blanks, III, Derrick A. Matthews, Robert Taylor, Christopher G. Haines and Lorenzo N. Morgan v. VESSEL MANAGEMENT SERVICES, INC., Belle of Orleans, LLC, Bally's Louisiana, Inc., d/b/a Bally's Casino Lakeshore Resort, Inc. and Patrick M. Browning.
• Court: Louisiana Supreme Court

983 So.2d 84 Andre J. DENOUX, Kurt Labeaud, Theron J. Washington, David Dickerson, Robert P. Williams, Jr., Richard W. Blackman, Christopher R. Booker, Horace Blanks, III, Derrick A. Matthews, Robert Taylor, Christopher G. Haines and Lorenzo N. Morgan
v.
VESSEL MANAGEMENT SERVICES, INC., Belle of Orleans, LLC, Bally's Louisiana, Inc., d/b/a Bally's Casino Lakeshore Resort, Inc. and Patrick M. Browning. No. 2007-C-2143. Supreme Court of Louisiana. May 21, 2008.

[983 So.2d 85]

The Koerner Law Firm, Louis Roy Koerner, Jr., R. Brent Cueria, New Orleans, for applicant.

[983 So.2d 86]

Phelps Dunbar, Barbara L. Arras, New Orleans, James Francis d'Entremont, Baton Rouge; Leake & Anderson, McNeil James Kemmerly, Margaret Frohn Swetman, George Davidson Fagan, New Orleans; Michael Rudolf Delesdernier, Metairie, for respondent.

JOHNSON, Justice.

We granted this writ application to consider whether the lower courts erred in sustaining the exception of prescription filed by defendant, Glidden Company d/b/a ICI Paints ("Glidden"). The court of appeal correctly found that Plaintiffs' claims against Glidden are prescribed, but we vacate the findings of the court of appeal in regard to whether Plaintiffs were Jones Act seaman, whether the Belle of Orleans was a vessel in navigation, and whether admiralty jurisdiction is applicable to the Plaintiffs' claims.

FACTS AND PROCEDURAL HISTORY

The Belle of Orleans, LLC ("Belle") was the owner of the riverboat, M/V Belle of Orleans, and Bally's Louisiana, Inc. ("Bally's") operated the vessel as a riverboat casino. Belle and Bally's contracted with Vessel Management Services, Inc. ("VMS") to provide certain marine management and other services on the M/V Belle of Orleans. VMS was responsible for staffing all marine crew positions aboard the Belle. The workers' duties included performing maintenance and repair work on the vessel as needed. Plaintiffs were employees of VMS who allegedly incurred injuries from exposure to toxic fumes between April and June 2000, while doing chipping and painting work ("Inner Bottom Project") in the bottom interior portion of the hull of the M/V Belle of Orleans.

Plaintiffs filed their initial Petition for Damages against VMS, Bally's and Belle on November 14, 2001. Plaintiffs filed their suit pursuant to the Jones Act, 46 U.S.C. § 688, the "savings to suitors clause," and under the general maritime law. Plaintiffs alleged that they were seamen and members of the crew of the M/V Belle of Orleans. Plaintiffs further alleged that they were exposed to, and injured by, toxic fumes during their work on the Belle, and that they were ordered to do the work of applying primer and paint in the hold and ballast tanks of the M/V Belle, and worked without ventilation or protective equipment.

On March 18, 2002, Belle and Bally's filed a third party demand against Glidden. Belle and Bally's alleged that to the extent that the paint used by the Plaintiffs was unsuitable for its use by VMS, or contained inadequate warnings or instructions for its use, the Plaintiffs' damages were caused by Glidden's fault. Belle and Bally's also sought indemnity or contribution from Glidden to the extent that Glidden's fault caused the Plaintiffs' injuries.

On March 17, 2006, Plaintiffs filed a Fourth Amended Petition, adding Glidden as a defendant. Plaintiffs alleged that Glidden was "the manufacturer of the toxic paint which created the damages sustained by the plaintiffs." Further, Plaintiffs' allegations against Glidden were based solely on Louisiana law, specifically alleging negligence and product liability. Plaintiffs also alleged that Glidden was solidarily liable with Bally's, Belle and VMS.

In response to the Plaintiffs' Fourth Amended Petition, Glidden filed an exception of prescription arguing that Plaintiffs' action was governed by the one-year prescriptive period set forth in La. C.C. art.

983 So.2d 87

3492¹ and that Plaintiffs did not timely file suit within one year of their exposure to the fumes (between April and June of 2000). Plaintiffs opposed the exception, arguing that their claims were governed by the three-year prescriptive period applicable to maritime law.²

The trial court sustained the exception of prescription, and the court of appeal affirmed. The Plaintiffs then filed the instant writ application in this Court.

DISCUSSION — PRESCRIPTION

In its Exception of Prescription, Glidden argued that all of the Plaintiffs' claims sounded in tort, and were therefore subject to the one-year prescriptive period set forth in La. C.C. art 3492. Glidden noted that Plaintiffs' Fourth Amended Petition specifically alleged that Glidden was liable solely under Louisiana law. Glidden argued that nowhere did Plaintiffs allege a cause of action against Glidden pursuant to federal general maritime law. Glidden argued that because Plaintiffs' Petition was prescribed on its face, Plaintiffs had the burden of proving that prescription had not run on their claim, and that Plaintiffs failed to present any such evidence. Glidden pointed out that Plaintiffs' exposure to the paint fumes began in April of 2000, more than a year before plaintiffs filed their original Petition for Damages in November of 2001. Thus, by the time Plaintiffs filed suit against VMS, Bally's and Belle, prescription on Plaintiffs' claims against Glidden had already run, thereby extinguishing any cause of action Plaintiffs may have had against Glidden. Glidden argues that a timely filed Jones Act/general maritime tort claim against VMS, Bally's and Belle cannot revive the already prescribed action on the claims against Glidden.

The Plaintiffs opposed the Exception of Prescription, arguing that the causes of action against Glidden were maritime in nature and governed by the uniform three-year statute of limitations established by 46 App. U.S.C. § 763a.³ Plaintiffs argued that their damages were sustained entirely aboard the Belle of Orleans by seaman-employees of VMS. Plaintiffs argued that the causes of action against VMS, Bally's and Glidden arose at a maritime location and in a maritime context, and thus 46 U.S.C.App. § 763a applies.

In response, Glidden argued that Plaintiffs failed to satisfy their burden of proving that their claims were not prescribed. Glidden has also pointed out that the deposition testimony relied on by the Plaintiffs to oppose the exception of prescription was never introduced into evidence, but merely

983 So.2d 88

attached to the Plaintiffs' opposition memorandum. Plaintiffs have admitted that they did not introduce the depositions into evidence, but argue that all parties and the court of appeal treated the depositions as if they had be introduced. Thus, Plaintiffs suggest that defendants have essentially waived this argument.

A review of Plaintiffs' Fourth Amended Petition reveals that the claims asserted against Glidden were made solely pursuant to Louisiana law. Delictual actions under Louisiana law generally prescribe within one year of the date the injuries or damage was sustained. La. C.C. art. 3492. Plaintiffs alleged that they were injured from exposure to toxic fumes from April to June of 2000. Jurisprudence provides that a cause of action resulting from exposure to fumes accrues upon exposure and the manifestation of initial symptoms.⁴ Thus, Plaintiffs' suit against Glidden, which was not filed until March of 2006 (almost six years after the initial exposure) is clearly prescribed on its face. While, ordinarily, the burden of proof is on the party pleading prescription, when the plaintiff's petition has clearly prescribed on its face, as here, the burden shifts to the plaintiff to prove that the claim has not prescribed. Rizer v. American Surety and Fidelity Ins. Co., 95-1200 (La.3/8/96), 669 So.2d 387; Lima v. Schmidt, 595 So.2d 624, 628 (La.1992). Thus, Plaintiffs were required to prove that their claims against Glidden had not prescribed.

Plaintiffs argue that their claims against Glidden fall under maritime law, and thus are subject to a three-year prescriptive period, rather than the one-year state tort...