Walls v. American Optical Corp.

• Decision Date: 08 September 1999
• Docket Number: No. 98-CC-0455.,98-CC-0455.
• Parties: Judy WALLS, James E. Walls, Kathy W. Hoffpauir, Brenda W. Hebert and Michael Walls v. AMERICAN OPTICAL CORPORATION, et al.
• Court: Louisiana Supreme Court

740 So.2d 1262

Judy WALLS, James E. Walls, Kathy W. Hoffpauir, Brenda W. Hebert and Michael Walls v. AMERICAN OPTICAL CORPORATION, et al.

No. 98-CC-0455.

Supreme Court of Louisiana.

September 8, 1999.

Joseph Michael Bruno, David S. Scalia, Paul David Dugas, Bruno & Bruno, New Orleans, Counsel for Applicant.

Michael Thomas Cali, John J. Hainkel, III, Greg Anthony Pellegrini, Frilot, Partridge, Kohnke & Clements, New Orleans, Jerald L. Album, Album, Stovall, Radecker & Giordano, Metairie, Patrick J. Hanna, Rabalais, Hanna & Hays, Lafayette, Ellen G. Reynard, Kent M. Adams, Adams, Coffey & Duesler, TX, Gerald Melchiode, Galloway, Johnson, Thompson & Burke, New Orleans, Andrew David Weinstock, Duplass, Wittman, Zwain & Williams, Metairie, Howard Louis Murphy, Deutsch, Kerrigan & Stiles, New Orleans, Jerome M. Volk, Jr., Michelle Louise Maraist, DeMartini, LeBlanc, D'Aquila & Volk, Kenner, St. Paul Bourgeois, IV, Allen & Gooch, Lafayette, Richard P. Sulzer, Esperanza Diaz Briscoe, Blue Williams, Metairie, Charles J. Hanemann, Jr., Henderson, Hanemann & Morris, Houma, Paul Leonard Veazey, Jr., Stockwell, Sievert, Viccellio, Lake Charles, William Francis Bologna, Habans, Bologna & Carrier, New Orleans, Samuel Milton Rosamond, III, Metairie, Scott Parker Yount, Deerfield Beach, FL, Christovich & Kearney, James Michael Garner, Martha Young Curtis, Keith Alex Kornman, William Wells Hall, McGlinchey Stafford, New Orleans, Counsel for Respondent.

Robert H. Urann, Nancy Picard, Metairie, Counsel for amicus curiae Marie Callaway, State Building and Construction.

Donni Elizabeth Young, New Orleans, Counsel for amicus curiae Ness, Motley, Loadholt et al.

Michael Thomas Cali, John J. Hainkel, III, New Orleans, Greg Anthony Pellegrini, Covington, Sidney Andrew Backstrom, Pascagoula, Counsel for amicus curiae Owens Corning.

Samuel Milton Rosamond, III, Metairie, Robert Edgar Caraway, III, New Orleans, Counsel for amici curiae Pete Territo, Steven Kennedy, J.D. Roberts, Commercial Union Ins. Co., American Motorists Industry, Highlands Ins. Co., Travelers Ins. Co. Janet Leslie MacDonell, Kym Krystyna Keller, New Orleans, Counsel for amicus curiae GAP Corp.

Sherman Gene Fendler, Mary Susan Johnson, Scott C. Seiler, Jill Thompson Losch, New Orleans, Counsel for amicus curiae Todd Shipyards, Corp.

James W. Hailey, Jr., Dominic J. Ovella, Michael Philip Mentz, John Tilghman Culotta, Valerie T. Schexnayder, Metairie, Counsel for amicus curiae Flintkote Co.

Brian Carl Bossier, Mickal Pokorny Adler, Metairie, Counsel for amicus curiae Avondale Industries Inc.

Glenn Lyle Maximilian, Troy Nathan Bell, New Orleans, Counsel for amicus curiae Garlock Inc.

Mickey P. Landry, Baton Rouge, Frank Joseph Swarr, New Orleans, Counsel for amici curiae Others Similarly Situated.

KIMBALL, J.¹

We granted certiorari to determine whether La. R.S. 23:1032 as amended in 1976, which extends tort immunity to executive officers, bars a wrongful death action against the executive officers and their liability insurer when the decedent's occupational exposures occurred entirely before the statute was amended, but his death from silicosis did not occur until years after the amendment's effective date. We hold that the amendment to La. R.S. 23:1032 operates prospectively, applying to causes of action arising after its October 1, 1976, effective date. Since plaintiffs' cause of action for negligent wrongful death arose after this effective date, defendant's exception of no cause of action and motion for partial summary judgment should have been sustained. The judgment of the court of appeal is affirmed.

I.

Mr. George Walls was employed as a sandblaster for Land & Marine and Coastal from 1964 to 1970, where he was exposed to silica dust that is created during sandblasting. Mrs. Walls and her children assert that this occupational exposure to silica dust caused Mr. Walls to contract the occupational lung disease silicosis and die from that disease on March 17, 1995. The plaintiffs, Mr. Walls' survivors, filed this survival and wrongful death suit against the executive officers of Land & Marine and Coastal, their insurers, and certain manufacturers and sellers of safety equipment who are not before us in this appeal. Century Indemnity ("Century"), one of the defendant insurers of the executive officers, filed an exception of no cause of action and an alternative motion for partial summary judgment asserting that the plaintiffs' exclusive remedy for their wrongful death claim is in workers' compensation because La. R.S. 23:1032, as amended, extends the employer's tort immunity to executive officers.

The trial court overruled Century's exception of no cause of action on the plaintiffs' wrongful death claim.² Century took writs to the fifth circuit which were denied. Century then applied to this Court and we granted the writ and remanded the case to the fifth circuit for briefing and full opinion. Walls v. American Optical Corp., 97-0178 (La.3/21/97), 691 So.2d 70. On remand, the fifth circuit ruled in Century's favor, reversing the trial court judgment. Walls v. American Optical Corp., 96-1000 (La.App. 5 Cir. 11/25/97), 703 So.2d 800.

Guided by this Court's decisions Guidry v. Theriot, 377 So.2d 319 (La.1979), Taylor v. Giddens, 618 So.2d 834, 840 (La.1993), Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741, and Cole v. Celotex, 599 So.2d 1058 (La.1992), the court below concluded that the wrongful death claim of the relatives of Mr. Walls did not arise until March 17, 1995, the date he died, long after the October 1, 1976 effective date of the amendment to La. R.S. 23:1032. Walls v. American Optical Corp., 703 So.2d at 803. The court held that the plaintiffs' action was barred by the exclusivity provision in that statute at the time it was filed. Id. Hence, the court found error in the trial court's denial of Century's exception of no cause of action, remanded and instructed the trial court to enter judgment in favor of Century, granting the exception of no cause of action regarding the claim of wrongful death. Id. We granted plaintiffs' writ and now review the court of appeal judgment.

II.

Prior to the 1976 amendment to the Louisiana Workers' Compensation Act, La. R.S. 23:1032 provided that workers' compensation benefits were the exclusive remedy of an employee, his personal representatives, dependents or relations, against an employer for injuries arising out of and in the course of his employment. Since the law did not expressly confer immunity from tort suits on any person other than the employer, this Court held in Canter v. Koehring Co., 283 So.2d 716 (La.1973), that an injured worker was allowed to seek recovery in tort from negligent executive officers and their liability insurers. Additionally, if the injured worker died from occupational injuries, his survivors could maintain both a survival action for the decedent's damages as well as a wrongful death action for their own damages against executive officers. However, with Act No. 147, the 1976 legislature amended La. R.S. 23:1032 to extend the employer's tort immunity to persons previously considered third parties under the Act.³ In Bazley v. Tortorich, 397 So.2d 475 (La.1981), we discussed the change in the law in great detail.

Formerly, the workers' compensation statute provided that compensation was an employee's exclusive remedy against his employer for a compensable injury, leaving him free to pursue other remedies against third persons. The amendment modified the exclusive remedy rule in two respects. First, it provided that for an unintentional injury compensation shall be the exclusive remedy, not only against the employer, but also against any principal, officer, director, stockholder, partner or employee of the employer or principal who was engaged at the time of the injury in the normal course and scope of his employment. Second, it provided that for an intentional act resulting in compensable injury the employee may exercise his right under the compensation act and pursue any other remedy available against the employer and other persons under general law.

Bazley, 397 So.2d at 479.

In Bazley, we also investigated the legislative history of Act 147 and found that the legislature intended to grant immunity to other defendants, such as the executive officer, ultimately to protect employers who were, practically speaking, paying the costs of litigation, directly or indirectly, through insurance premiums for those executive officers and employees being cast in judgment for workplace injuries. Thus, the purpose of the employer's statutory immunity in tort was being circumvented through executive officer and co-employee suits.

The principal legislative aim of the 1976 amendment was to broaden the class of defendants to be granted immunity from suits by injured employees in tort or delict. Although the legislative history is meager, accounts indicate that the amendment was enacted to provide employers relief from the cost of furnishing liability insurance to executive officers and other employees. Before the amendment, the absence of a prohibition against tort suits against co-employees allowed injured workers to seek tort recovery from negligent executive officers and their liability insurers. This avenue of recovery provoked considerable critical comment. It was argued that, since the employer's enterprise would in the end pay for the tort remedy, either directly or through insurance premiums for officers and employees, the result would be a denial to the employer of much of the practical advantage of the exclusive remedy provision. It was apparently for this reason that the legislature acted to close this avenue of recovery by adopting Act 147 of 1976.

Id. at 479 (internal citations omitted).

III.

The plaintiffs assert that even though the 1976 legislature intended to extend the employer's tort immunity to executive officers, the provision can only permissibly...