Hymel v. Eagle, Inc., 2008-CA-1287.

CourtCourt of Appeal of Louisiana (US)
Citation7 So.3d 1249
Docket NumberNo. 2008-CA-1287.,2008-CA-1287.
PartiesRalph J. HYMEL and Linda Hymel v. EAGLE, INC., et al.
Decision Date18 March 2009
7 So.3d 1249
Ralph J. HYMEL and Linda Hymel
EAGLE, INC., et al.
No. 2008-CA-1287.
Court of Appeal of Louisiana, Fourth Circuit.
March 18, 2009.

[7 So.3d 1250]

Lawrence G. Gettys, Brent Coon & Associates, Baton Rouge, LA, Andrew A. Lemmon, Lemmon Law Firm, LLC, Hahnville, LA, for Plaintiffs/Appellants.

Samuel M. Rosamond, III, Adam D. Demahy, Crawford Lewis PLLC, New Orleans, LA, for Defendant/Appellee, Commercial Union Insurance Company.

C.J. Hebert, New Orleans, LA, for Defendant/Appellee, J.D. Roberts.

[7 So.3d 1251]

(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENISE R. BAGNERIS and Judge PAUL A. BONIN).


The plaintiff-appellant, Ralph Hymel, appeals a judgment of July 21, 2008, granting the exception of res judicata of the defendants-appellees, J.D. Roberts and Commercial Union Insurance Company, and dismissing plaintiff's claims with prejudice. For the reasons that follow, we affirm.

The trial court judgment recognized and enforced the "Release, Discharge and Indemnity Agreement" executed by the plaintiff on January 5, 1998 in the matter entitled In Re Asbestos Plaintiffs, Flight 6, No. 93-17362 of the Civil District Court for the Parish of Orleans. It is undisputed, that the proper procedural mechanism for interposing the defense of settlement or compromise (formerly also referred to as "transaction") is the peremptory exception of res judicata. Rivett v. State Farm Fire and Casualty Co., 508 So.2d 1356 (La.1987). Therefore, the plaintiff assigns no procedural errors to the proceedings below.

This was an asbestos claim and the settlement and release specifically included release of any and all future asbestos related mesothelioma and cancer claims. Plaintiff claims that he was exposed to asbestos while he worked at Avondale Shipyards from 1958-19721. Plaintiff was diagnosed with asbestosis (but not mesothelioma or any other form of cancer) in 1993, and he filed suit the same year against Avondale's executives and insurers, a suit that was settled in 1998 for $15,000.00 when the plaintiff executed the aforementioned "Release, Discharge and Indemnity Agreement." It is undisputed that the release encompassed the executive officers of Avondale and their insurers and it is only in that alleged capacity that the defendants-appellees are parties to this appeal. Unfortunately, it turns out that the plaintiff is one of those tragically unlucky victims whose exposure to asbestos eventually evolved into mesothelioma. As may be seen by reference to the many asbestos cases from this and other jurisdictions, mesothelioma can be expected to eventuate in a certain number of asbestos exposure cases. While it is impossible to predict which cases of asbestos exposure will progress to mesothelioma, it is predictable that at least some cases will do so. Undoubtedly, that is why the settlement included specific language releasing future claims for mesothelioma. The settlement was signed by the plaintiff in the presence of a notary and it is undisputed that the plaintiff was represented by Steven Murray of the Murray Law Firm and William Roberts Wilson, who are known to have substantial experience in the field of asbestos claims.

The plaintiff takes the position that he was unaware of the possibility that he could eventually develop mesothelioma. In brief, the plaintiff set forth the basis of this second asbestos exposure related suit that is the subject of the instant appeal:

Mr. Hymel never understood that the Agreement was intended to eliminate his right to bring a future personal injury suit in the event that he developed a second asbestos-related disease, even though Louisiana law would otherwise have permitted him to bring such a

7 So.3d 1252

claim. He did not know why the Agreement contained a reference to mesothelioma, but thought that this disease was mentioned because some of the other workers in the group being settled suffered from that disease.... Neither Appellees nor his own lawyer ever explained the release terms to Mr. Hymel. And neither Appellees nor anyone else ever told Mr. Hymel that Article 2004 of the Louisiana Code barred enforcement of contractual agreements [2] that "in advance, excludes or limits the liability of one party for causing physical injury to the other party." .... Unaware of the possibility that he could still develop a second asbestos-related disease and in need of money to pay medical expenses [3] and other bills, Mr. Hymel signed the Agreement in exchange for the $15,000 payment. [Emphasis added.]

Therefore, in spite of having executed this settlement agreement in 1998 and receiving a substantial payment of $15,000.00 as an inducement, the plaintiff filed the instant claim on February 25, 2008, for mesothelioma which was dismissed with prejudice by the trial court on an exception of res judicata.

When an exception of res judicata is raised, as it was in the instant case before the case is submitted by trial on the merits, the standard of review is manifest error. Medicus v. Scott, 32,326 (La.App. 2 cir. 9/22/99); 744 So.2d 192, 196, citing Ortego v. State, 96-1322 (La.2/25/97), 689 So.2d 1358 and Tarver v. Oliver Van Horn Co., 591 So.2d 1366 (La.App. 4 Cir.1991); See also, Ellison v. Michelli, 513 So.2d 336, 339 (La.App. 4 Cir.1987).

Public policy favors compromises and the finality of settlements. Brown v. Drillers Inc., 93-1019 (La.1/14/94), 630 So.2d 741; Rivett v. State Farm Fire & Cas. Co., 508 So.2d 1356 (La.1987). Compromises are favored in the law and the burden of proving the invalidity of a compromise is on the party attacking the agreement. Ellison, supra.

The release contains the following language:

It is further understood and agreed that the aforementioned provisions are intended to release and forever discharge the released parties from any and all liability on account of or in any way growing out of occupational diseases or conditions attributable to exposure to asbestos ... including ... any future or consequential condition or injury, including but not limited to death, mesothelioma, cancer, shortness of breath, fear of cancer or increased risk of cancer ... [Emphasis added.]

This Court's analysis in Bulot v. Intracoastal Tubular Services, Inc., 04-398, (La.App. 4 Cir. 11/3/04), 883 So.2d 1146, is equally applicable to the instant case. Bulot concerned a suit that was settled, followed by a second suit arising out of basically the same circumstances. In the first suit filed by one of the plaintiffs, ExxonMobil, among others, was sued. The plaintiff alleged certain respiratory conditions arising out of exposure to certain

7 So.3d 1253

substances. The settlement of that suit included a full and general release encompassing all claims "he now has" or which he "may hereafter acquire." He later filed a second suit against ExxonMobil for certain other lung conditions arising out of exposure to certain substances. This Court made the following observation with which we still agree and find applicable to the instant case:

We find that Kenneth Craft's second lawsuit stems from the same juridical or material facts as the first lawsuit. The legal obligation of ExxonMobil was to protect Kenneth Craft from harm. Thus, the duty owed by ExxonMobil is the same in both lawsuits. Further, it is undisputed that Kenneth Craft compromised all claims against ExxonMobil by signing the receipt and release in 1988. Accordingly, we find no error in the trial court's sustaining ExxonMobil's exception of res judicata in the Kenneth Craft suit. [Emphasis added.]

Id., 04-398, p. 7, 883 So.2d at 1150-1151.

There is ample jurisprudence in this area as may be seen by this Court's analysis in Robbert v. Carroll, 97-0854 (La.App. 4 Cir. 9/10/97), 699 So.2d 1103, and cases cited therein:

The Louisiana Civil Code expressly provides that a transaction or compromise between two or more parties, who by mutual consent adjust their differences to prevent or resolve a lawsuit, carries force equal to the authority of adjudicated disputes. La. C.C. art. 3071; Brown v. Simoneaux, 593 So.2d 939 (La.App. 4 Cir.1992). The subsequent discovery by a claimant that an injury was more serious than initially believed does not entitle the claimant to rescind the settlement and release agreement. La. C.C. arts. 3071, 3079, 3083; Jurado v. State Farm Mut. Ins. Co., 557 So.2d 266 (La.App. 4 Cir.1990). Article 3083 specifically provides that when parties settle disputes, issues that arise subsequent to the settlement do not give rise to grounds for rescission, unless the issues were purposely concealed by one of the parties to the settlement agreement.

Although this Court invalidated a settlement and release agreement in Saunders v. NOPSI, 387 So.2d 603 (La.App. 4 Cir.1980), writ denied, 394 So.2d 614 (La.1980), Saunders is inapplicable to this case. In Saunders, this Court invalidated a settlement and release agreement based on the fact that both the claimant and the insurer mistakenly believed that the claimant had properly been examined by a physician, when in fact no thorough examination had occurred. [Emphasis added.]

Robbert v. Carroll, 97-0854 (La.App. 4 Cir. 9/10/97), 699 So.2d 1103, 1104-1105.

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art.2046. It is not the province of the courts to relieve a party of a bad bargain, no matter how harsh. Capone v. Kenny, 94-0888 (La.App. 4 Cir. 11/30/94), 646 So.2d 510; The Board of Com'rs of the Port of New Orleans v. Turner Marine Bulk, Inc., 629 So.2d 1278, (La.App. 4 Cir.1993); Kenny v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386, 390 (1970).

The plaintiff has cited no cases in which a court has invalidated a settlement where the future claim arose out of the original alleged dereliction of duty and was specifically mentioned in the release and the plaintiff...

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