Naquin v. Johns-Manville Sales Corp.
| Decision Date | 28 August 1984 |
| Docket Number | No. 83-CA-707,JOHNS-MANVILLE,83-CA-707 |
| Parties | Hubert J. NAQUIN v.SALES CORPORATION. 456 So.2d 665 |
| Court | Court of Appeal of Louisiana — District of US |
Judith A. DeFraites, Gertler & Gertler, New Orleans, for Hubert J. Naquin plaintiff-appellant.
Thomas M. Nosewicz, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Johns-Manville Sales Corporation defendant-appellee.
Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
Hubert J. Naquin, a 60 year old man who was employed at Johns-Manville Marrero plant between 1950 and 1970, filed an asbestosis-related workers compensation claim on October 26, 1982. His claim was dismissed on an exception of prescription based on L.R.S. 23:1031.1(E)(a). We reverse.
In essence the exception is based upon the fact that plaintiff's claim for damages was not filed until October of 1982 and that the evidence shows that plaintiff knew or should have known that he was being treated for asbestosis by his doctor two years earlier in September, 1980. After considering the evidence presented, the court determined that the prescriptive period of six months specified in sub-paragraph (a) of paragraph (E) applies in view of the records which showed plaintiff was first seen by Dr. Martin Brown in September of 1980 and followed up by him, with a diagnosis of pneumoconiosis, indicating the presence of an occupational disease. At the same time the trial judge found that the plaintiff was still employed in strenuous activity and has never been disabled and continues to work until date of trial. However he held that the case of Crump v. Hartford Accident and Indemnity Co., 367 So.2d 300 (La.1979) was not applicable to this case. We believe this to be error.
We refer to the case of Thornell v. Payne & Keller, Inc., 442 So.2d 536 (La.App. 1st Cir.1983) in which a somewhat similar situation was presented to the court. The court considered the application of the Crump case and other authorities, which had been decided under the statute as it existed prior to 1980, and applied those principles to the presently existing R.S. 23:1031.1(E). 1 It was noted that the statute is not written so that sub-paragraphs (a), (b), (c) are not separated either by the disjunctive article "or" or by the conjunctive article "and". The court held that the existence of all three are necessary for the prescriptive period of that statute to commence, and we agree entirely with that holding and the reasons upon which it is based.
The record shows that the worker in our case has been continuously employed up to the time of trial, and has been for the last number of years working at a strenuous occupation as a tractor operator, with the obligation to perform other labor strenuous jobs from time to time.
We believe it important to stress that there is a difference in the prescription applicable to proceedings in tort (see Owens v. Martin, et al., 449 So.2d 448 (La.1984) and the statute presently under consideration in this workers compensation claim. Generally speaking, this statute points out that the...
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...Thornell v. Payne and Keller, 442 So.2d 536 (La.App. 1st Cir.1983), writ denied, 445 So.2d 1231 (La.1984); Naquin v. Johns-Manville Sales Corp., 456 So.2d 665 (La.App. 5th Cir.1984). As related to prescription and LSA-R.S. 23:1031.1 E, the trial court's written reasons for judgment The cour......
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