Hebert v. Anco Insulation, Inc., 2000 CA 1929.

• Decision Date: 31 July 2002
• Docket Number: No. 2000 CA 1929.,2000 CA 1929.
• Citation: 835 So.2d 483
• Court: Court of Appeal of Louisiana — District of US
• Parties: Alvin HEBERT, Sr. and Marion M. Dupuis Hebert v. ANCO INSULATION, INC., A.P. Green Industries, Inc., Armstrong World Industries, Inc., Asbestos Claims Management Corp., f/k/a National Gypsum Company, Asbestos Corporation, Ltd., A.W. Chesterton Company, The Dow Chemical Company, Mortimer Currier, Charlie Halphen, Lester Poirrier, Harold Hoyle, Theodore Trokelson, James E. Campbell, Joe Bristol, Gerard W. Daigle, Malcolm L. McNabb, V.K. Rowe, Dr. Holder, Dr. Gordon, Don Morris, John Calmes, Al Paradiso, Charlie Melancon, Associates Indemnity Corporation, the American Insurance Company, Travelers Casualty and Surety Company, Flexiallic, Inc., GAF Corporation, The McCarty Corporation, AC & S, Pittsburgh Corning Corporation, Rapid American Corporation T & N, Union Carbide Corporation, and Uniroyal, Inc.

835 So.2d 483

Alvin HEBERT, Sr. and Marion M. Dupuis Hebert v. ANCO INSULATION, INC., A.P. Green Industries, Inc., Armstrong World Industries, Inc., Asbestos Claims Management Corp., f/k/a National Gypsum Company, Asbestos Corporation, Ltd., A.W. Chesterton Company, The Dow Chemical Company, Mortimer Currier, Charlie Halphen, Lester Poirrier, Harold Hoyle, Theodore Trokelson, James E. Campbell, Joe Bristol, Gerard W. Daigle, Malcolm L. McNabb, V.K. Rowe, Dr. Holder, Dr. Gordon, Don Morris, John Calmes, Al Paradiso, Charlie Melancon, Associates Indemnity Corporation, the American Insurance Company, Travelers Casualty and Surety Company, Flexiallic, Inc., GAF Corporation, The McCarty Corporation, AC & S, Pittsburgh Corning Corporation, Rapid American Corporation T & N, Union Carbide Corporation, and Uniroyal, Inc.

No. 2000 CA 1929.

Court of Appeal of Louisiana, First Circuit.

July 31, 2002.

Rehearing Denied Nov. 5, 2002.

Writs Denied Feb. 21, 2003.

[****HEADNOTE****]

Cameron Waddell, Brian Blackwell, Burton LeBlanc, Baton Rouge, for Plaintiffs/2nd Appellants, Marion D. Hebert, Alvin A. Hebert, Jr., Stanley Robert Hebert, Cindy Hebert Himel, Nancy Hebert Villerette, Catherine Hebert Harrelson and Blake J. Hebert.

H. Alston Johnson, III, Baton Rouge, F. Barry Marionneaux, Plaquemine, John R. Tharp, David Bienvenu, Jr., Gregory E. Bodin, Baton Rouge, for Defendant/1st Appellant, The Dow Chemical Company.

H. Alston Johnson, III, John R. Tharp, David Bienvenu, Jr., Gregory E. Bodin, Baton Rouge, for Defendants/Appellees, Harold Hoyle, Harold Gordon, M.D. and Ben Holder, M.D.

Susan Kohn, New Orleans, for Defendant, McCarty Corporation.

David Barfield, Gaye Nell Currie, Jackson, MS, for Defendant, AC & S, Inc.

Julie Difulco Robles, Metairie, for Defendant, ANCO Insulations, Inc.

A. Wendell Stout, III, New Orleans, for Defendant, United States Gypsum.

Thomas Milazzo, James L. Fletcher, Jr., Metairie, for Defendant, Asbestos Corp., Ltd.

Michael G. Durand, Lafayette, for Defendants, Associates Indemnity Co. & American Insurance Co.

Edward Castaing, Jr., New Orleans, for Defendant, A.W. Chesterton.

Edwin Ellinghausen, III, New Orleans, for Defendant, Pittsburgh Corning Corp.

T. MacDougall Womack, Baton Rouge, for Defendant, Our Lady of the Lake RMC.

Charles Giordano, Metairie, for Defendant, Rapid American Corporation.

John Cosmich, Laura Sanders Brown, Jackson, MS, for Defendants, Owen—Illinois, Inc. & Uniroyal, Inc. Arthur W. Landry, New Orleans, for Defendant, Synkoloid, A Division of Muralo, Inc.

Darrell Sims, New Orleans, for Defendant, Eagle, Inc.

Janice M. Culotta, New Orleans, for Defendant, Armstrong World Industries, Inc.

Before: GONZALES, WHIPPLE, FITZSIMMONS, KUHN and DOWNING, JJ.

FITZSIMMONS, J.

This case involves claims by Alvin A. Hebert, Sr. and his wife, Marion M. Dupuis Hebert, against The Dow Chemical Company ("Dow") for damages based upon Mr. Hebert's contraction of mesothelioma, a disease resulting from exposure to asbestos-containing products. Following trial, the jury answered interrogatories and found Dow strictly liable. Dow appeals from an amended judgment, which ordered Dow to pay plaintiffs the total sum of $265,625.00 as its virile share of the total damage award. Plaintiffs have also appealed various rulings rendered by the trial court during the course of the proceedings below. We affirm the judgment maintaining the exceptions of lack of personal jurisdiction of various defendants; however, we vacate the "amending judgment" on the merits and remand the case to the trial court with instructions.

FACTS AND PROCEDURAL HISTORY

In February of 1999, Mr. Hebert, a retired millwright, was diagnosed with mesothelioma, cancer of the mesothelia cells that line the outside of the pleural membrane and the lining of the chest wall, for which there is usually no cure. Mr. Hebert and his wife¹ then instituted this suit against numerous defendants, including manufacturers of asbestos-containing products, corporate sellers of such products, owners of premises allegedly defective due to the presence of asbestos-containing products, and certain executive officers of Dow, one of the premises owners sued.² In general terms, plaintiffs alleged that the defendant corporations had engaged in the design, manufacture, sale, distribution, and/or installation, handling, storage or transportation of asbestos-containing materials.

Dow was sued as a premises owner based on allegations that Mr. Hebert was exposed to asbestos-containing materials while working as a millwright at Dow's Plaquemine, Louisiana facility from approximately 1956 to 1975, during his employment with Nichols Construction and later with National Maintenance. Additionally, the executive officers of Dow who were named as defendants were sued on the basis that they were negligent in failing to provide Mr. Hebert with a safe place to work.

Prior to trial, defendants Harold Hoyle, Dr. Harold Gordon and Dr. Benjamin Holder, all former employees and alleged executive officers of Dow, filed declinatory exceptions raising the objection of lack of personal jurisdiction. Following argument on the exceptions, the trial court maintained the exceptions and dismissed plaintiffs' claims against these defendants without prejudice. Plaintiffs also settled with numerous defendants, and their claims against various other defendants were dismissed with prejudice on motions for summary judgment. Dow also filed a motion for partial summary judgment, seeking dismissal of Mrs. Hebert's claim for loss of consortium. The court granted the motion, and this claim likewise was dismissed with prejudice.

Thereafter, the matter proceeded to trial against Dow and the McCarty Corporation, the only remaining defendants. Following a two-week trial, the jury returned a verdict, finding that Mr. Hebert had sustained an asbestos-related injury. The jury further found that the McCarty Corporation was not at fault. With regard to Dow, while the jury found that Dow was not negligent, it did find that Dow had custody and control of a defective thing which created an unreasonable risk of harm to which Mr. Hebert had been exposed. The jury made the same finding as to one other company on whose premises Mr. Hebert had worked, Kaiser Aluminum Corporation. Additionally, the jury concluded that six manufacturers with whom plaintiffs had settled prior to trial, Garlock Corporation, Johns—Manville Corporation, Pittsburgh Corning Corporation, Owens— Corning Fiberglas Corporation, Armstrong World Industries, Inc. and Flexitallic Gasket Company, Inc., had introduced into commerce unreasonably dangerous products to which Mr. Hebert had been exposed and that these products were substantial contributing causes of his disease. The jury then awarded Mr. Hebert $2,000,000.00 in general damages and $500,000.00 in past and future medical expenses.

In entering judgment in accordance with the jury verdict, the trial court cast Dow with a one-eighth virile share of the verdict, based on Dow's strict liability and the fault of seven of the settling defendants. Thus, judgment was rendered against Dow in the amount of 5312,500.00.

Both Dow and Mr. Hebert filed motions for judgment notwithstanding the verdict. While Mr. Hebert's motion was denied in its entirety, Dow's motion was granted in part, on the issue of the award of medical expenses. The trial court then rendered an amended judgment, reducing the total amount awarded for medical expenses from $500,000.00 to $125,000.00. Thus, the amended judgment cast Dow for damages in the amount of $265,625.00, its virile share of the total amended award, plus interest and costs.

Dow suspensively appealed from the amended judgment on the merits, assigning the following as error:

(1) The trial court erred in its application of strict liability to the facts and circumstances of Mr. Hebert's claim against Dow by failing to direct a verdict in favor of Dow on the strict liability claim and then erroneously instructing the jury on the law of strict liability under La. C.C. art. 2317.

(2) The trial court committed legal error by failing to hold that plaintiffs' settlement with the manufacturers of asbestos-containing products to which Mr. Hebert had been exposed on Dow's premises extinguished Dow's secondary or derivative strict liability as premises owner.

(3) The jury erred in failing to allocate any fault to the settling defendants, BASF and Georgia Pacific, because Mr. Hebert's own admissions established that he was exposed to asbestos-containing products on the premises owned by these settling defendants, plaintiffs' own experts opined that every exposure to asbestos-containing products was a substantial contributing cause of Mr. Hebert's disease, and these settling defendants had care or custody of the same unreasonably dangerous thing that formed the basis of Dow's strict liability.

(4) The jury's general damage award of $2,000,000.00 was excessive as a matter of law.

Thereafter, plaintiffs appealed devolutively from three judgments: the judgment granting the exceptions of lack of personal jurisdiction and dismissing plaintiffs' claims against Gordon, Holder and Hoyle; the judgment granting Dow's motion for partial summary judgment and dismissing Mrs. Hebert's loss of consortium claim; and the amended judgment on the merits. They have set forth the following assignments of error:

(1) The trial court erred in granting the exceptions of lack of personal jurisdiction filed on behalf of defendants, Harold Gordon, Benjamin Holder and Harold Hoyle.

(2) The trial court erred in granting the motion for partial summary judgment filed on behalf of Dow and dismissing Mrs. Hebert's claim for loss of consortium.

(3) The jury erred in failing to find that Dow was negligent in causing Mr. Hebert's mesothelioma.

(4) The jury erred in finding Kaiser Aluminum Corporation, Garlock Corporation, Johns—Manville Corporation, Armstrong World Industries,...