Gales v. Gold Bond Bldg. Products, Div. of Nat. Gypsum Co.

• Decision Date: 08 September 1986
• Docket Number: No. 85-C-1351,85-C-1351
• Parties: Jessie GALES v. GOLD BOND BUILDING PRODUCTS, a DIVISION OF NATIONAL GYPSUM CO., and the Kemper Group.
• Court: Louisiana Supreme Court

Page 611

493 So.2d 611

Jessie GALES v. GOLD BOND BUILDING PRODUCTS, a DIVISION OF NATIONAL GYPSUM CO., and the Kemper Group.

No. 85-C-1351.

Supreme Court of Louisiana.

Sept. 8, 1986.

Judith A. DeFraites, Gertler & Gertler, New Orleans, for plaintiff-applicant.

Lawrence K. Benson, Jr., Melanie Miller Lewis, J. Patrick Gaffney, Milling, Benson, Woodward, Hillyer, Pierson & Miller, P.C., New Orleans, for defendant-respondent.

DENNIS, Justice. ^*

The issue presented by this case is whether the obligation to pay workers' compensation binds more than one of a claimant's successive employers when his disabling occupational disease results from his injurious exposure to deleterious causes on successive jobs, and, if so, whether one of the obligors is liable for the whole obligation to the others. In this case the asbestosis claimant filed suit against one, but not the last, of the employers who contributed to his disease. On motion of defendant, the trial court dismissed plaintiff's suit at the end of his case because of his failure to implead the last contributing or causative employer. The court of appeal affirmed. 472 So.2d 82. We reverse. Any employer whose employment of a claimant has contributed causally to his disabling occupational disease is solidarily obliged to him fully for workers' compensation. As between successive employers contributing to an employee's disabling occupational disease, the employer during whose employment the employee was last injuriously exposed to the cause of the occupational disease is fully responsible for all workers' compensation due.

1. Facts

Jessie Gales began work as an asbestos manufacturing worker in 1942 for R.J. Dorn Company at its plant on Tchoupitoulas Street in New Orleans. During his career, he worked at the same plant for several successive employers, until disabled by the disease of asbestosis in 1983. The period during which each company owned the plant and employed Gales was as follows: R.J. Dorn Company 1942 to 1943; Asbestone Corporation, 1943 to 1953; Gold Bond Building Products, a division of National Gypsum Company, 1953 to 1981; International Building Products 1981 to 1983. In 1983, Gales took an early retirement after being diagnosed as having asbestosis.

Gales filed this suit for workers' compensation against Gold Bond in 1983 and trial commenced in 1984. The plaintiff's evidence showed that Gales' employment exposed him to greater than ordinary concentrations of asbestos dust and fibers throughout his career. Although his expert medical witnesses identified his 28 year employment from 1953 to 1981 by Gold Bond as the principal cause of his asbestosis, they also testified that his last two years of employment by International Building Products, Inc., contributed to his occupational disease. At the conclusion of plaintiff's case, defendants filed a motion for involuntary dismissal. The trial court granted the defendant's motion and dismissed plaintiff's claim with prejudice.

The trial court interpreted this court's decision in Carter v. Avondale Shipyards, Inc., 415 So.2d 174 (La.1982) as holding that only the last causative employer may be held liable to an employee disabled by an occupational disease. Because plaintiff's own evidence showed that International Building Products, which plaintiff failed to name as a defendant, was the last causative employer, the suit against Gold Bond was dismissed. Plaintiff appealed, and the court of appeal affirmed.

2. The Issue

We granted certiorari to decide whether more than one successive employer of a worker who contracts a disabling occupational disease may be held liable in solido for workers' compensation to the employee if each employer's work related activity or environment contributed to the disease; and, if so, the nature of the liability of the solidary obligors between themselves.

3. Carter v. Avondale Shipyards, Inc.

Carter v. Avondale Shipyards, Inc., 415 So.2d 174 (La.1982) does not resolve the issue presented by this case. Carter was a contest between two successive employers to determine, as between the employers, whether liability for a worker's occupational disease should be imposed on one employer or apportioned between employers. After initially deciding that liability for compensation benefits should be apportioned between employers whose employments were causative factors in the development of the employee's disease, this court vacated that decision on rehearing, and found that the final employer, Avondale, was solely responsible because it had failed to prove that the employment by the previous employer, Dibert, Bancroft & Ross, had been a causative factor. In dicta, this court suggested that responsibility for compensation of occupational disease victims should be placed only on "employers of the worker at the time the disease 'manifested itself' and 'disabled' the worker." Carter v. Avondale Shipyards, Inc., supra, p. 181.

Consequently, this court in dicta may have expressed a preference for the last injurious exposure rule in resolving disputes between successive employers over liability for an employee's progressive occupational disease. However, the court was not called upon to decide, and did not decide even in dicta, whether an employee may hold each successive employer whose employment of him was a causative factor in the development of his occupational disease solidarily liable for workers' compensation.

4. The Statute

The workers' compensation act provides for benefits in connection with occupational diseases upon certain terms and conditions. La.R.S. 23:1031.1. ¹ Every employee is entitled to compensation for disability caused by occupational disease contracted during employment the same as in the case of personal injury by accident arising out of and in the scope and course of his employment. Id. A. An occupational disease must be due to causes characteristic of the employment in which the employee is exposed. Id. B. There is a rebuttable presumption that any disease contracted within the first twelve months of performing work for an employer is non-occupational. Id. D. To preserve his claim an employee must file it with his employer within six months of the date that the disease manifested itself, the employee is disabled from working as a result of the disease, or the employee knows or has reasonable grounds to believe that the disease is occupationally related. Id. E. An employee who willfully and falsely represents himself as not having previously suffered from a disease upon entering employment is disqualified for benefits as a result of that disease. Id. G. The right to workers' compensation on account of occupational disease is exclusive of all other rights or remedies. Id. H.

With respect to an occupational disease caused by multiple successive employments, the statute is open textured and ambiguous. Its provisions do not clearly state whether each causative employer is obliged to pay compensation, whether a causative employer's obligation is several, joint or solidary, or, if solidary, how the obligors may be liable between themselves. The statute alternately links the employer's obligation with the employee's contraction of or exposure to disease during employment. These passages could be interpreted to refer either to the employee's initial acquisition of the disease, any exposure or contraction of additional diseased conditions or perhaps the final exposure and contraction producing manifest symptoms and ultimately disability. Nothing in the statute specifically precludes any one of the three traditional solutions to the successive employer problem: to hold the first causative employer liable exclusively, to place liability exclusively on the last causative employer, or to make them share in the liability. See, Larson Workmen's Compensation Law, Vol. 4, § 95.12 (1984).

5. Solidarity

Under a proper interpretation of the occupational disease provisions, bearing in mind the policy of liberal statutory construction, the emerging principle of imposition of solidary liability upon multiple employers, and the compromise character of compensation, we conclude that any employer whose employment of a claimant has contributed causally to his disabling occupational disease is solidarily obliged to him fully for workers' compensation.

The policy of liberal construction of the workers' compensation laws for the benefit of the claimant is the rule in Louisiana. Lester v. Southern Casualty Insurance Company, 466 So.2d 25 (La.1985); Danielson v. Security Van Lines, Inc., 158 So.2d 609 (La.1963); Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522 (La.1956); Jones v. Hunsicker, 188 La. 468, 177 So. 576 (La.1937).

It is an emerging general principle of our workers' compensation law that, where succeeding employments contribute to disability, compensation liability falls solidarily on each succeeding employer. Thus, it has been held that when a worker is disabled as a result of the combination of two or more successive accidents in separate and succeeding employments each employer is solidarily liable for the total amount of benefits. The employee may, at his option, obtain an award for the entire disability against any one or more of successive employers whose employment contributed to the disability. Finley v. Hardware Mutual Ins. Co., 110 So.2d 583 (La.1959); Wheat v. Ford, Bacon & Davis Constr. Corp., 424 So.2d 293 (La.App. 1st Cir.1982); Lachney v. Employers Commercial Union Insurance Companies, 337 So.2d 624 (La.App. 4th Cir.1976); Landry v. Bituminous Cas. Co., 244 So.2d 105 (La.App. 3rd Cir.1971); Stockstill v. Bituminous Cas. Co., 144 So.2d 918 (La.App. 4th Cir.1962); Estillette v. United States Fidelity & Guaranty Company Co., 64 So.2d 878 (La.App. 1st Cir.1953); Brock v. Jones Laughlin Supply Co., 39 So.2d 904 (La.App. 1st Cir.1949); White v. Taylor, 5 So.2d 337 (La.App. 2nd Cir.1941); Guillory v. Travelers Insurance Company, 282 So.2d 600 (La.App....