Barber v. Employers Insurance Co. of Wausau
97 So. 3d 454
La. Ct. App.2012Background
- Ten deceased Central Wood Preserving employees sue their former employer and its insurer for toxic exposure and work hazards leading to illnesses and death; claims include wrongful death and survivorship damages; suit filed September 9, 2008 on behalf of 75 former employees; earlier prescription rulings dismissed individual claims (Arthur Williams and Easley Wallace) and later others; district court held some claims prescribed while designating final judgments for interlocutory appeals; the court affirms in part, vacates in part, and remands for amendment to name proper beneficiaries for wrongful death claims.
- The petition asserts exposure to creosote, asbestos/CCA, silica and other hazards during 1950–1976 employment periods, with illnesses manifesting years later; plaintiffs were all deceased at time of appeal; the action seeks damages for survivors and wrongful death under Article 2315.1 and 2315.2.
- The district court found the plaintiffs’ claims prescribed on their face due to long latency and failure to timely sue, but considered contra non valentem; the appellate court must determine finality designations under Article 1915 and analyze prescription vs. peremption for survival and wrongful death actions.
- The court ultimately holds that survival actions are perempted and thus extinguished; wrongful death actions are vacated for amendment to name proper beneficiaries; and the case is remanded to allow proper pleading and proof of beneficiary status, with costs allocated to each side.
- The court designates finality for nine plaintiffs and Arthur Williams under Article 1915(B) and (A); it remands to correct petitions and allow evidentiary proof of eligibility of beneficiaries.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether survival actions are perempted under Article 2315.1 | Plaintiffs rely on contra non valentem to toll prescription. | Defendants argue peremption applies; claims extinguished. | Survival actions perempted; extinguished. |
| Whether plaintiffs had a right of action for wrongful death | Beneficiaries asserted wrongful death on behalf of designated heirs. | Named plaintiffs lack proper beneficiary status to assert wrongful death. | No right of action for wrongful death in named plaintiffs; vacate and remand to name proper beneficiaries. |
| Whether finality designations under Article 1915 were proper for the nine plaintiffs | Finality designations should preserve appeal. | Designations appropriate to permit review. | Designations proper; merits addressed for designated plaintiffs. |
| Whether contra non valentem could suspend peremption in this long-latency case | Discovery rule tolled peremption. | Peremption cannot be interrupted or suspended. | Contra non valentem cannot suspend peremption for survival actions; not applicable to wrongful death due to lack of right of action. |
Key Cases Cited
- Guidry v. Theriot, 377 So.2d 319 (La. 1979) (establishes one-year survival period is peremptive; guides timing and discovery rule.)
- Motorola, Inc. v. Associated Indem. Corp., 867 So.2d 723 (La.App. 1st Cir. 2003) (de novo review for finality when reasons for finality are not provided.)
- Walls v. American Optical Corp., 740 So.2d 1262 (La. 1999) (wrongful death action and beneficiary considerations.)
- Guidry v. Theriot (second citation), 377 So.2d 319 (La. 1979) (discusses survivorship vs. wrongful death distinctions.)
- Taylor v. Giddens, 618 So.2d 834 (La. 1993) (discusses discovery and accrual in long-latency cases.)
- London Towne Condo. Homeowner’s Ass’n v. London Towne Co., 939 So.2d 1227 (La. 2006) (discusses prescription interruptions and related rules.)
- Niemann v. Crosby inDev. Co., L.L.C., 92 So.3d 1039 (La.App. 1st Cir. 2012) (illustrates peremptive/exceptional considerations on finality.)
- Bracken v. Payne and Keller Co., Inc., 970 So.2d 582 (La.App. 1st Cir. 2007) (illustrates procedural treatment of prescription objections.)