360 So.3d 184
La. Ct. App.2023Background
- Decedent Earl T. Lindsay Sr. was diagnosed with asbestos-related lung cancer and died in February 2015; a survival and wrongful-death suit was filed by his children a year later against multiple defendants including Ports America.
- In May 2017 Reginald Rivers and Mosi Makori intervened, claiming to be grandchildren of Lindsay and seeking to establish paternity to pursue survival/wrongful-death claims.
- Ports America settled the plaintiffs’ claims on May 31, 2017 for $92,500 and obtained an indemnity against any claims by the intervenors.
- Ports America moved for partial summary judgment (Dec. 2, 2022), arguing plaintiffs’ and intervenors’ wrongful-death claims are barred by the Louisiana Workers’ Compensation Act unless an "intentional act" exception applies; it also moved as to intervenors’ survival claims and to enforce the settlement.
- The trial court denied Ports America’s summary-judgment motions (Feb. 10, 2023; judgment reduced to writing Mar. 24, 2023). Ports America sought supervisory review.
- The appellate court granted the writ in part: it reversed the trial court’s denial of summary judgment on the wrongful-death claims, and denied the writ as to the remaining issues (including survival-claim and settlement-enforcement rulings); intervenors’ requested stay was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether wrongful-death claims against employer are barred by La. R.S. 23:1032 (workers’ comp exclusivity) or survive under the "intentional act" exception | Plaintiffs (and intervenors in opposition) rely on petition allegations that workplace asbestos exposure caused death and thus contend tort claims should proceed | Ports America: wrongful-death claims are barred by workers’ compensation because no evidence of an "intentional act" by the employer; summary judgment appropriate | Held: Reversed trial court; summary judgment should have been granted—wrongful-death claims barred absent evidence of intentional act (no genuine issue shown) |
| Whether intervenors’ survival claims may proceed given prior appellate remand to establish paternity and alleged failure to produce evidence | Intervenors asserted their petition and prior appellate remand support their survival claims | Ports America argued intervenors failed to produce evidence proving beneficiary status and compliance with prior remand | Held: Writ denied as to this issue (trial court’s denial of summary judgment as to survival claims stands) |
| Whether the settlement with plaintiffs should be enforced (and indemnity applied to intervenors’ claims) | Intervenors disputed application/enforcement of settlement/indemnity | Ports America sought enforcement of the May 2017 settlement and indemnity clause | Held: Writ denied as to remaining issues, so trial court’s denial of motion to enforce settlement remains (no relief granted on enforcement) |
Key Cases Cited
- Reddick v. State, 328 So.3d 505 (La. App. 4th Cir.) (de novo standard for appellate review of summary judgment)
- Chatelain v. Fluor Daniel Const. Co., 179 So.3d 791 (La. App. 4th Cir.) (summary-judgment proof and standard)
- Marino v. Boh Bros. Const. Co., L.L.C., 982 So.2d 887 (La. App. 4th Cir.) (explaining the "intentional act" exception to workers' compensation exclusivity)
- Callaway v. Anco Insulations, 714 So.2d 730 (La. App. 4th Cir.) (employee must produce evidence employer knew or concealed asbestos risks to support an intentional-act theory)
- Babin v. Winn-Dixie Louisiana, Inc., 764 So.2d 37 (La.) (burdens on mover and opposing party at summary judgment)
- Lindsay v. Ports America Gulfport, Inc., 286 So.3d 534 (La. App. 4th Cir.) (prior appellate decision remanding to allow intervenors to establish paternity)