Lebleu v. Southern Silica of Louisiana

• Decision Date: 20 December 1989
• Docket Number: No. 88-664,88-664
• Citation: 554 So.2d 852
• Parties: Mitchell L. LEBLEU, Sr., Plaintiff-Appellee, v. SOUTHERN SILICA OF LOUISIANA, et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 852

554 So.2d 852

Mitchell L. LEBLEU, Sr., Plaintiff-Appellee, v.SOUTHERN SILICA OF LOUISIANA, et al., Defendants-Appellants.

No. 88-664.

Court of Appeal of Louisiana Third Circuit.

Dec. 20, 1989.

Rehearing Denied Jan. 25, 1990.

Baggett, McCall, Wm. B. Baggett, Jr., Lake Charles, for plaintiff-appellee.

Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Patrick J. Hanna, Lafayette, for Lone Star.

Duplass, Witman & Zwain, Metairie, for Pulmosan Safety Equipment Co.

Taylor, Porter, Brooks & Phillips, John I. Moore, John Parker, Baton Rouge, Jones, Tete, Nolen, Hanchey, Swift & Spears, Ken Spears, Robert Tete, Lake Charles, for Cities Service Co.

Preis, Kraft, Laborde & Daigle, Chris Philipp, Lafayette, for Southern Silica of Louisiana.

Stockwell, Sievert, Viccellio, Clements & Shaddock, Paul Veazey, Lake Charles, for PPG Industries.

Pitre, Yoes, Kay & Halley, Henry Yoes, Lake Charles, for Clemtex.

Raggio, Cappel, Chozen & Berniard, Keith Prudhomme, Lake Charles, for Thorstenburg.

Tom Sanders and Rebecca Young, Lake Charles, for Liberty Mut.

Scofield, Bergstedt, Gerard, Mount & Veron, John R. Pohorelsky, Lake Charles, for Reliance.

Plauche, Smith & Nieset, Chris Ieyoule, Lake Charles, for Speciality Sand.

Wm. Collings, Lake Charles, for USF & G.

Before GUIDRY, LABORDE, YELVERTON, KNOLL and KING, JJ.

KNOLL, Judge.

This appeal involves a pretrial procedural dispute among the defendants concerning third-party demands against executive officers.The primary issue is whether we will allow third-partyplaintiffs, Lone Star Industries, Inc.(Lone Star) and Pulmosan Safety Equipment Company(Pulmosan), the right of contribution, which is embedded in our civilian tradition under the doctrine of legal subrogation, or follow a United States Fifth Circuit Court of Appeal case, Ducre v. Executive Officers of Halter Marine, Inc., 752 F.2d 976(5th Cir.1985), and deny third-partyplaintiffs the right to demand contribution against certain executive officers of Sline Industrial Painters, Inc.(Sline), PPG Industries, (PPG) and Cities Service Company(Cities Service).With all due respect to the esteemed Fifth Circuit, for reasons stated hereafter we will not follow the Ducre decision, finding that Ducre ignores Louisiana subrogation laws and in effect applies the 1976amendment to LSA-R.S. 23:1032 retroactively, which is prohibited under the Louisiana Constitution.

Other issues raised by Lone Star and Pulmosan are: (1) whether the trial court's denial of their indemnity claims was premature; and, (2) whether the trial court improperly denied them the opportunity to show that PPG, Cities Service and their executive officers, were joint tortfeasors.We also reverse on these issues.

This is one of ten silicosis suits consolidated on appeal.Although the issues of each case are addressed in the text of this opinion, we render separate opinions in the consolidated cases.We append a listing of the consolidated cases to this opinion.

FACTS

Lone Star and Pulmosan are two of nineteen defendants sued by ten victims of silicosis disease.Lone Star manufactured the silica, and Pulmosan manufactured certain safety equipment plaintiffs used.The plaintiffs allege that they contracted silicosis as a result of exposure to silica dust during their employment as sandblasters with Sline over a period of time from 1941 to 1985 inclusive.All the plaintiffs allege exposure prior to 1976.One of the plaintiffs total exposure to silica dust was prior to 1976.In 1985 and 1986, the plaintiffs sued the nineteen defendants composed of manufacturers, suppliers, distributors, etc. of products and equipment used in sandblasting.Lone Star and Pulmosan filed third-party demands for indemnity and contribution against PPG and Cities Service directly, as well as the executive officers of Sline, PPG and Cities Service, and the insurers of all parties.The third-party demands in the suits were identical and were met with peremptory exceptions of no cause of action based on the 1976amendments to LSA-R.S. 23:1032 prohibiting suits against executive officers unless based on an intentional tort.The exceptions of no cause of action were consolidated for hearing and sustained by the trial court.Concerning the contribution issue, the trial court relied upon the Fifth Circuit's decision in Ducre.As to the indemnity issue, it concluded that indemnity was not available to the third-partyplaintiffs because their fault was active whereas the third-party defendants' alleged fault was only passive.And lastly, the trial court found that if PPG and Cities Service were plaintiffs' statutory employers, they were immune to the third-partyplaintiffs' action under LSA-R.S. 23:1032.

LEGAL SUBROGATION

Pulmosan and Lone Star first contend that the trial court erred when it chose to follow Ducre in its dismissal of their claims against the executive officers of Sline, PPG, and Cities Service.They argue that the Fifth Circuit has overlooked the well recognized principle of legal subrogation upon which a claim for contribution is based.We agree.We find the Ducre decision overlooks our civil law concept of subrogation, and improperly focuses on the time when a third-partyplaintiff may demand contribution from a solidary obligor, i.e., when Lone Star and Pulmosan have satisfied fully the obligation.In our treatment of this issue, we apply our subrogation laws by focusing on what rights Pulmosan and Lone Star would be entitled to as joint tortfeasors with other defendants.If, after trial on the merits, it is determined that plaintiffs have a cause of action against the executive officers of their employer corporations, Sline, et al., along with Lone Star and Pulmosan, then Pulmosan and Lone Star, via third-party demands, have a reciprocal right through subrogation to step into the plaintiffs' shoes and seek contribution from the executive officers.By sustaining the no cause of action, Lone Star and Pulmosan are denied this right.However, the plaintiffs are allowed to sue the executive officers, because their cause of action allegedly arose before 1976, and in fact the plaintiffs did amend and sued the executive officers after the ruling on this exception.

LSA-C.C.P. Art. 927 provides for the peremptory exception of no cause of action.This exception is designed to test the legal sufficiency of the petition rather than the evidence which may or may not be available to prove the allegations at trial.Darville v. Texaco, Inc., 447 So.2d 473(La.1984).All well pleaded allegations of the petition must be accepted as true, and any doubts as to the sufficiency of the petition must be resolved in favor of finding that the pleadings are sufficient to state a cause of action.Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063(La.App. 3rd Cir.1981).Only if the allegations of fact in the petition exclude every reasonable hypothesis other than the premise upon which the defense is based or disclose no cause of action on any ground whatsoever may an exception of no cause of action be maintained.Darville, supra.

In Ducre, the plaintiffs were victims of silicosis.In deciding the exceptions of no cause of action filed by the executive officers based on the 1976amendment to LSA-R.S. 23:1032 the Fifth Circuit divided the consolidated cases before it into those where the plaintiffs sued the officers directly (Avondale cases) and those where the defendant third-partied the executive officers (Southern-Halter cases).The court noted that the law in Louisiana is in a state of flux as to when a plaintiff's cause of action for silicosis arises.However, based on Owens v. Martin, 449 So.2d 448(La.1984), andQuick v. Murphy Oil Co., 446 So.2d 775(La.App. 4th Cir.1984), writ denied, 447 So.2d 1074(La.1984), it reasoned that the cause of action for silicosis may arise when the plaintiff"contracts" the disease.Quick defined this time as when the dust had so damaged the body that the fibrogenic effects of silica inhalation would progress independent of further exposure.As the court stated in Ducre, and with which we agree, Louisiana law is not settled as to when the plaintiff's cause of action arises in an occupational disease case.The "contraction" theory at least received the qualified approval of our Supreme Court in Quick when the court denied writs reserving its right to examine the "contraction" theory later.

Since in Ducre, as the plaintiffs in the case sub judice, ¹ allege exposure to silica both before and after the amendment to LSA-R.S. 23:1032, the Fifth Circuit held that there is the possibility that plaintiffs' injuries arose prior to the 1976 grant of immunity to executive officers.Because of this possibility, the Fifth Circuit overruled the exception of no cause of action against the executive officers in Ducre's Avondale cases.To this extent we agree with the Ducre decision.

Our area of disagreement with Ducre is in its analysis of the contribution claims asserted by the third-partyplaintiffs against the executive officers in the Southern-Halter cases delineated in Ducre.Relying upon Brown v. New Amsterdam Casualty Company, 243 La. 271, 142 So.2d 796(1962), the Ducre court found that the third-partyplaintiffs' causes of action for contribution against a joint tortfeasor arise when judicial demand is made on a joint tortfeasor.The Ducre court reasoned that since the Southern-Halter plaintiffs filed suit subsequent to the passage of the 1976amendment to LSA-R.S. 23:1032, the manufacturers (third-partyplaintiffs) could not maintain an action against the executive officers who now had immunity.

The Brown decision dealt with an amendment to LSA-C.C. Art. 2103 enacted in 1961 that allowed a third-party action by a tortfeasor against a joint tortfeasor who was not initially sued by the injured plaintiff.Prior to the amendment to C.C. Art. 2103, a defendant could not enforce his right to contribution against a joint...