Mulkey v. Century Indem. Co.
| Decision Date | 07 August 2019 |
| Docket Number | 2018 CA 1551 |
| Parties | Michael Martin MULKEY, Sr. v. CENTURY INDEMNITY COMPANY, Petroleum Casualty Company, James Ralph Vannoy, R.H. Bretz, Ralph F. Howe, and Joseph D. Midwikis |
| Court | Court of Appeal of Louisiana — District of US |
Lewis O. Unglesby, Baton Rouge, Louisiana, Wells T. Watson, Jake Buford, Lake Charles, Louisiana, Counsel for Plaintiffs-Appellants Susan Mulkey, et al.
Tynan Buthod, Louis Layrisson, III, Benjamin Eric Gonsoulin, Houston, Texas, Counsel for Defendant-Appellee Exxon Mobil Corporation
James M. Garner, Martha Y. Curtis, Amanda Russo Schenck, New Orleans, Louisiana, Counsel for Defendant-Appellee Century Indemnity Company, as successor to CCI Insurance Company, as successor to Insurance Company of North America
BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
Plaintiffs-appellants, Susan L. Mulkey, wife of decedent, Michael Martin Mulkey, Sr. (Mulkey), and their major children, Michael Mulkey, Jr., Michelle McCloud, and Mathew Mulkey (collectively appellants), appeal the trial court's judgment sustaining exceptions raising the objection of prescription and dismissing all their claims against Mulkey's former employer, defendants-appellees, Exxon Mobil Corporation (Exxon),1 and its liability insurer Century Indemnity Company (Century).2 We reverse.
As noted in our earlier opinion, see Mulkey v. Century Indent. Co., 2016-1119 (La. App. 1st Cir. 4/12/17), 2017 WL 1378234, at *1 (unpublished opinion), writ denied, 2017-1059 (La. 10/9/17), 228 So.3d 746, Mulkey filed this lawsuit on March 3, 2014, alleging that he had worked at Exxon's Scenic Highway facility "on the chemical side" between 1967 and 2002. As a result of his exposure to benzene and benzene-containing products and chemicals, Mulkey averred that he had been diagnosed with acute myelogenous leukemia
on March 26, 2013. Mulkey named employees and former employees of Exxon as defendants, contending that "the law [of] executive office liability applies."
After Mulkey died on March 2, 2015 from acute myelogenous leukemia
, appellants filed the second amending and supplemental petition, alleging that as his surviving beneficiaries they were entitled to damages for Mulkey's survival action and wrongful death. Plaintiffs named Exxon as a defendant claiming that, as his employer, Exxon was liable for damages that resulted from its intentional exposure of benzene without Mulkey's informed consent while he worked at the Baton Rouge facility.
After the trial court sustained Exxon's peremptory exception raising the objection of no cause of action as to the claims of an intentional tort of battery, this court reversed. See Mulkey, 2017 WL 1378234, at *2.3
Thereafter, Exxon urged a peremptory exception raising the objection of prescription as to the claim of an alleged intentional battery insofar as appellants' assertion to entitlement of survival action and wrongful death damages. Century also filed an exception of prescription. After a hearing, the trial court sustained the objection and dismissed appellants' claims. This appeal followed.4
As noted by this court in our earlier opinion, a battery is harmful or offensive contact to another done with the intent to cause the person to suffer such a contact. The intention need not be malicious nor need it be an intention to inflict actual damage. Mulkey, 2017 WL 1378234, at *2 (citing Caudle v. Betts, 512 So.2d 389, 391 (La. 1987) ). See also La. C.C. art. 2315A ().
Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. La. C.C. art. 3492. The purpose of a prescription statute is to afford a defendant economic and psychological security if a cause of action is not pleaded timely and to protect the defendant from stale claims and the loss of relevant proof. Borja v. FARA, 2016-0055 (La. 10/19/16), 218 So.3d 1, 6. Prescription statutes are, however, strictly construed against prescription and in favor of the obligation sought to be extinguished. Taranto v. Louisiana Citizens Property Ins. Corp., 2010-0105 (La. 3/15/11), 62 So.3d 721, 726.
Ordinarily, the party pleading prescription bears the burden of proving the right to bring the claim has prescribed. But when the face of the petition reveals that the plaintiff's right has prescribed, the burden shifts to the plaintiff to demonstrate prescription was interrupted or suspended. London Towne Condo. Homeowner's Ass'n v. London Towne Co., 2006-401 (La. 10/17/06), 939 So.2d 1227, 1234. Additionally, a petition should not be found prescribed on its face and, hence, plaintiff should not bear the burden of proving an interruption or suspension of prescription, if it is brought within one year of the date of discovery of the cause of action, the facts alleged with particularity in the petition show that the victim was unaware of the cause of action prior to the alleged date of discovery, and the delay in filing suit was not due to willful, negligent, or unreasonable action of the victim. See Campo v. Correa, 2001-2707 (La. 6/21/02), 828 So.2d 502, 509.
At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded when the grounds thereof do not appear from the petition. La. C.C.P. art. 931 ; Bracken v. Payne and Keller Co., Inc., 2006-0865 (La. App. 1st Cir. 9/5/07), 970 So.2d 582, 587. If evidence is introduced, the trial court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rando v. Anco Insulations Inc., 2008-1163 (La. 5/22/09), 16 So.3d 1065, 1082.
To soften the occasional harshness of prescription statutes, Louisiana courts have recognized a jurisprudential exception to prescription with contra non valentem non currit praescriptio, which means that prescription does not run against a person who could not bring suit.
Jenkins v. Starns, 2011-1170 (La. 1/24/12), 85 So.3d 612, 623.
In this case, appellants have brought both survival claims and wrongful death claims. La. C.C. art. 2315.1 grants to designated beneficiaries a right of action to recover the damages that a person suffered and would have been entitled to recover from a tortfeasor had that person lived. Article 2315.1 A states, in pertinent part:
This is ordinarily called the survival action or the victim's action. It comes into existence simultaneously with the existence of the tort and is transmitted to beneficiaries upon the victim's death. The survival action permits recovery only for the damages suffered by the victim from the time of injury to the moment of death and is in the nature of a succession right. McGee v. A C And S, Inc., 2005-1036 (La. 7/10/06), 933 So.2d 770, 780.
La. C.C. article 2315.2 grants to designated beneficiaries the right to recover from a tortfeasor the damages the beneficiaries have suffered when a person has died as a result of a tort. Article 2315.2 states, in pertinent part:
This right of action is ordinarily called the wrongful death action or the beneficiaries' action. The wrongful death action is intended to compensate the beneficiaries for compensable injuries suffered by them from the moment of death and thereafter. Walls v. American Optical Corp., 98-0455 (La. 9/8/99), 740 So.2d 1262, 1273.
Exxon and Century assert that when Mulkey filed his claim for damages arising from the alleged intentional tort of battery, his cause of action was already prescribed. Thus, they contend appellants' claims for survival action and wrongful death damages are untimely.
The survival action is dependent upon the primary tort victim having a viable cause of action on the date of his death. Walls, 740 So.2d at 1274. Consequently, if the cause of action of the primary tort victim has prescribed prior to his date of death, there is no viable action to transfer to his statutorily-designated beneficiaries. Lennie v. Exxon Mobil Corp., 17-204 (La. App. 5th Cir. 6/27/18), 251 So.3d 637, 649, writ denied, 2018-1435 (La. 11/20/18), 256 So.3d 994.
Liberative prescription of one year generally begins to run when the victim knows or should know of the damage, the delict, and the relationship between them. Branch v. Willis-Knighton Med. Ctr., 92-3086 (La. 4/28/94), 636 So.2d 211, 212. La. C.C. art. 3492 is rooted in the recognition that a prescriptive period is a time limitation on the exercise of a right of action, and a right of action in tort comes into being only when the plaintiff's right to be free of illegal damage has been violated. When damages are not immediate, the action in damages thus is formed and begins to prescribe only when the tortious act actually produces damage and not on the day the act was committed. Bailey v. Khoury, 2004-0620 (La. 1/20/05), 891 So.2d 1268, 1276 (citing Harvey v....
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