Tower v. ConocoPhillips Co.
| Decision Date | 06 November 2019 |
| Docket Number | 19-81 |
| Citation | 283 So.3d 612 |
| Parties | Duane G. TOWER v. CONOCOPHILLIPS COMPANY |
| Court | Court of Appeal of Louisiana — District of US |
Deborah D. Kuchler, Michele Hale DeShazo, Mark E. Best, Katherine B. Wells, Kuchler Polk Weiner, L.L.C., 1615 Poydras Street, Suite 1300, New Orleans, LA 70112, (504) 592-0691, Counsel for Defendant/Relator: ConocoPhillips Company
Thomas A. Filo, Cox, Cox, Filo Camel & Wilson, L.L.C., 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, Counsel for Plaintiff/Respondent: Duane G. Tower
Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.
Relator, ConocoPhillips Company ("ConocoPhillips"), seeks a supervisory writ from the judgment of the Workers' Compensation Judge (WCJ) which denied ConocoPhillips's motion for partial summary judgment on the issue of prescription. We called up the writ and heard oral argument. We affirm the judgment of the OWC.
Respondent, Duane Tower ("Tower"), alleges that from February 1969 to January 2008, ConocoPhillips employed him as a utility helper, machinist, and tool room attendant at ConocoPhillips's Lake Charles refinery before he voluntarily retired on January 1, 2008. On January 2, 2018, Tower filed a disputed claim for workers' compensation benefits under the Louisiana Workers' Compensation Act (LWCA), La.R.S. 23:1021, et seq. , alleging that he had sustained a gradual occupational noise-induced hearing loss. Tower makes claims for supplemental earnings benefits (SEB) and medical benefits, as well as a claim for penalties and attorney fees for the arbitrary and capricious handling of his claims for benefits. Although ConocoPhillips disputed Tower's cause of action and the timeliness of his claim, ConocoPhillips tendered payment to Tower for his medical expenses.
ConocoPhillips filed a motion for summary judgment seeking dismissal of Tower's claims for SEB on the grounds that there was no evidence that his alleged hearing loss rendered him disabled or unable to earn at least ninety percent of his prior wages, and that his claims are prescribed under La.R.S. 23:1031.1(E), which governs prescription for occupational illness and disease claims. The WCJ denied both aspects of ConocoPhillips's motion for summary judgment.
In its argument to this court, ConocoPhillips only seeks review of that aspect of the WCJ's judgment which denied its claim that Tower's claim was prescribed.
The jurisprudence has held that "the denial [of] a motion for summary judgment or partial summary judgment is an interlocutory judgment reviewable only on an application for a supervisory review from an appellate court." Smith v. Tsatsoulis , 14-742, pp. 1-2 (La.App. 4 Cir. 9/3/14), 161 So.3d 783, 784, writ denied , 14-2018 (La. 10/9/14), 150 So.3d 889 (citations omitted).
As a preliminary matter, Tower argues that the exercise of this court's supervisory jurisdiction is not warranted because a reversal of the trial court's ruling denying ConocoPhillips's motion for summary judgment will not totally terminate the litigation. See Herlitz Constr. Co., Inc. v. Hotel Inv'rs of New Iberia, Inc. , 396 So.2d 878 (La.1981). In that regard, Tower contends that although ConocoPhillips identifies its pleading as a motion for summary judgment seeking the dismissal of "all claims," its pleading is actually a motion for partial summary judgment because it does not address any aspect of Tower's claim for penalties and attorney fees arising out of ConocoPhillips's alleged arbitrary and capricious handing of his claim. While Tower may be correct in his assertion that a reversal of the WCJ's ruling on ConocoPhillips's motion for summary judgment may not terminate the entire litigation, an appellate court's exercise of its supervisory jurisdiction is discretionary. Further, we find that the resolution of the question of whether Tower's claim for SEB has prescribed serves to clarify which issues may properly proceed to trial in the present case and may have an impact on the resolution of the prescription issues for various other pending cases which involve claims for occupationally-induced hearing loss. Accordingly, we find it appropriate to address the issues ConocoPhillips raises.
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co ., 06-363 (La. 11/29/06), 950 So.2d 544. It is well accepted that an appellate court reviews a motion for summary judgment de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light , 06-1181 (La. 3/9/07), 951 So.2d 1058. A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett , 04-0806 (La. 6/25/04), 876 So.2d 764. "A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate." Larson v. XYZ Ins. Co. , 16-0745, pp. 6-7 (La. 5/3/17), 226 So.3d 412, 416. "Damage is sustained, within the meaning of prescription, only when it has manifested itself with sufficient certainty to support the accrual of a cause of action." Cole v. Celotex Corp. , 620 So.2d 1154 (La.1993). The damages suffered must at least be actual and appreciable in quality. Labbe Serv. Garage, Inc. v. LBM Distribs, Inc. , 94-1043 (La.App. 3 Cir. 2/1/95), 650 So.2d 824.
The burden of proof remains with the mover to show that no material issues of fact exist. La.Code Civ.P. art. 966(D). The mover must present supportive evidence that the motion for summary judgment should be granted. Robicheaux v. Adly , 00-1207 (La.App. 3 Cir. 1/31/01), 779 So.2d 1048. Once the mover has made a prima facie showing that the motion for summary judgment should be granted, the burden of proof shifts to the nonmoving party to present evidence demonstrating the existence of issues of material fact which preclude summary judgment. Hayes v. Autin , 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied , 97-0281 (La. 3/14/97), 690 So.2d 41.
From the outset, we observe that instead of filing a peremptory exception of prescription to challenge the timeliness of Tower's claim, ConocoPhillips raised the prescription issue via a motion for summary judgment. This court has stated that "[a]lthough typically asserted through the procedural vehicle of the peremptory exception, the defense of prescription may also be raised by motion for summary judgment." Trahan v. BP Am. Prod. Co. , 16-267, p. 3 (La.App. 3 Cir. 12/7/16), 209 So.3d 166, 170, writ denied , 17-0022 (La. 3/24/17), 216 So.3d. 815 (citation omitted).
In Labbe, 650 So.2d at 829 (citation omitted), this court further noted:
[T]he filing of a motion for summary judgment based on the plea of prescription practically subjects the movers to a higher burden of proof than if the movers had filed only the peremptory exception of prescription. The burden of proof on the movers for summary judgment ... is particularly exacting in that they are required to prove, based solely on documentary evidence and without the benefit of testimony at a hearing, that there is no genuine material factual issue in dispute regarding the day upon which plaintiff acquired or should have acquired knowledge of the damage. On the other hand, pleading prescription alone subjects the exceptor to proving, by a preponderance of the evidence, that the plaintiff's claim has prescribed. Additionally, if on the face of the petition it appears that prescription has run, the burden shifts to the plaintiff to prove an interruption or suspension of the prescriptive period. At a hearing on the exception of prescription, the parties are allowed to call witnesses to testify and the factfinder is allowed to weigh credibility. On summary judgment, this is prohibited.
See also, Hogg v. Chevron USA, Inc. , 09-2632, 09-2635 (La. 7/6/10), 45 So.3d 991.
PRESCRIPTION: OCCUPATIONAL DISEASES
The Louisiana Supreme Court has held that "plaintiffs' gradual noise-induced hearing loss as a result of their exposure to hazardous levels of noise in the course and scope of their employment constitutes an ‘occupational disease’ within the meaning of the LWCA." Arrant v. Graphic Packaging Intern., Inc. , 13-2878, pp.19-20 (La. 5/5/15), 169 So.3d 296, 308. With regard to the prescriptive period for claims arising out of an occupational disease, La.R.S. 23:1031.1(E) provides as follows:
Although this court has held that La.R.S. 23:1031.1(E) does not use a conjunction between the three paragraphs in that statute, this court has followed the jurisprudence that has interpreted La.R.S. 23:1031.1(E) to mean that prescription does not begin to run until all three of the conditions listed in that statue have been met. See Hawkins v. Pilgrim's Pride Corp ., 10-402 (La.App. 3 Cir. 11/3/10), 49 So.3d 1069, writ denied , 10-2675 (La. 1/28/11), 56 So.3d 958.
ConocoPhillips asserts that the workers' compensation court should have granted its motion for summary judgment and dismissed Tower's hearing loss claims as prescribed. ConocoPhillips points out that Tower filed his workers' compensation claim more than ten years after he retired from the workforce. ConocoPhillips...
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