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

• Decision Date: 03 June 1985
• Docket Number: No. 85-CA-85,85-CA-85
• Citation: 472 So.2d 82
• Parties: Jessie GALES v. GOLD BOND BUILDING PRODUCTS, A DIVISION OF NATIONAL GYPSUM COMPANY and Kemper Group.
• Court: Court of Appeal of Louisiana — District of US

Page 82

472 So.2d 82

Jessie GALES v. GOLD BOND BUILDING PRODUCTS, A DIVISION OF NATIONAL GYPSUM

COMPANY and Kemper Group.

No. 85-CA-85.

Court of Appeal of Louisiana,

Fifth Circuit.

June 3, 1985.

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

Melanie Miller Lewis, Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, for defendants-appellees.

Before BOUTALL, C.J., and BOWES and CURRAULT, JJ.

CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division "I", Parish of Jefferson, wherein the Honorable Wallace C. LeBrun granted defendants' motion for involuntary dismissal, LSA-C.C.P. art. 1672, at the close of plaintiff's case, thereby dismissing plaintiff's claim with prejudice. We affirm.

Mr. Jessie Gales began his employment in the asbestos manufacturing field with R.J. Darne in 1942. In 1942, R.J. Darne was purchased by Asbestone who continued to manufacture asbestos products. Asbestone, in turn, sold the business to Gold Bond Building Products, a division of National Gypsum Company, in 1953. Gold Bond operated the plant until 1981 when they sold it to International Building Products, Inc. (IBP).

Mr. Gales worked continuously at the same physical plant in the same capacity, "that of a 'right hand roller man' ", throughout all of the ownership changes. His duties included the operation of a Cubilator (phonetic) roller which rolled a wet asbestos mixture into certain thickness for products such as asbestos siding and corrugated roofing. During Mr. Gales's entire employment, he was continuously exposed to varying amounts of asbestos dust, fibers and silica.

Mr. Gales began to experience difficulty in performing his job; and in 1983 he took an early retirement due to asbestosis. This lung disease was diagnosed by Dr. Morton Brown, a pulmonary specialist, and Dr. Victor Alexander, Chairman of the Occupational Medicine Clinic at Ochsner Foundation.

In 1983, Mr. Gales filed an action seeking worker's compensation benefits from Gold Bond Building Products/National Gypsum Company. Trial was conducted on September 7, 1984; and at the conclusion of plaintiff's case, defendants filed a motion for involuntary dismissal. On November 9, 1984, defendants' motion was granted and plaintiff's claim was dismissed with prejudice. The trial judge, in applying Carter v. Avondale, 415 So.2d 174 (La.1982), ruled that plaintiff had asbestosis as a result of his asbestos exposure; but, since International Building Products was the last causative employer, Gold Bond/National Gypsum was not responsible for worker's compensation benefits.

Plaintiff brings this appeal, asserting as sole error the trial court's application of Carter, supra.

Much has been written regarding the interpretation of Carter, supra. Appellant contends Carter, "was not intended to blanketly apply to every situation where there are successive employers." Appellant's interpretation of Carter is that the last substantially causative employer should be liable and not simply the last employer where the worker had some exposure. Accordingly, appellant argues that since the "overwhelming testimony in this case is that Mr. Gales's exposure to asbestos at National Gypsum was the substantial causative factor in the development of his disease ... National Gypsum should be held liable for Mr. Gales's compensation." Appellant concludes the application of Carter, "will have the effect of relieving the real culprit, National Gypsum, ... from any liability whatsoever."

Appellees, on the other hand, assert the test imposed by Carter is not which employment was the substantial causative factor in the development of the employee's disease as suggested by appellant; but rather, in the case of successive employers, the last employer whose work was a causative factor in the development of a disabling occupational disease, is solely responsible for paying worker's compensation benefits. Appellees argue the application of Carter, supra, by the trial court to the instant fact was correct.

Jessie Carter sued his last employer, Avondale, for worker's compensation benefits as a result of his total and permanent disability due to the contraction of silicosis. Carter had been employed by Avondale for approximately nine years when he quit due to this total disability. Avondale filed a third party petition against plaintiff's immediate past employer, whom he had worked for for twenty-eight years. Carter had been exposed, on a daily basis, to materials which were known by each of his employers to cause silicosis. The Supreme Court held that Carter had established by a preponderance of the evidence that his employment with both employers was a substantial factor in causing his disability and that his disease was occupationally related to his employment with...