828 F. Supp. 2d 835
E.D. La.2011Background
- Plaintiff Lois Frank sues Shell Oil Co. and Travelers for benzene exposure at the Shell Norco refinery causing ALL leukemia in her late husband Welman Frank, who worked there from 1972 to 2002 and died in 2002.
- Plaintiff asserts Shell knew of benzene hazards and concealed them; claims include fraudulent concealment, negligence, strict products liability, Article 2317 liability, misrepresentation, fraud, unjust enrichment, and various loss-related claims.
- Travelers allegedly insured Shell and Shell’s executive officers from 1972 to 1978; controversy centers on whether LWCA exclusivity bars suit and whether executive officers may be liable.
- Court addresses Shell’s Rule 12(b)(6) dismissal and Rule 12(f) strike motions, and Travelers’ request to apply Shell rulings to Travelers.
- Key legal framework involves Louisiana Workers’ Compensation Act exclusivity and its intentional tort exception, prescription rules including contra non valentem, and long-latency occupational disease theories; disposition includes partial grant/denial of Shell motions and grant of Travelers motion.
- Court recognizes that Mr. Frank’s survival actions accrue based on significant tortious exposure theory, with different LWCA regimes applying to survival versus wrongful death claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prescription tolling via contra non valentem | Franks’ claims timely under discovery rule until 2011 | Claims facially prescribed; no tolling | Discovery rule tolls until Feb 2011; claims timely |
| LWCA exclusivity and executive officer immunity | LWCA pre-1976 exemptions apply; executive officers not immune | LWCA exclusive remedy bars these claims; immunity for execs | Wrongful death claims barred; survival claims against execs require post-1975 exposure; not established; some survival claims may survive pre-1976 period |
| Intentional tort exception under LWCA | Alleged intentional torts by Shell and execs exempt from LWCA | Elements not met; no substantial certainty/intent | Intentional tort exception does not apply to post-1975 claims; those claims dismissed |
| Travelers’ direct action/liability | Travelers liable as insurer” | Liability coextensive with Shell under LWCA; traveler's status governed by same rulings | Travelers bound by same LWCA rulings; motion granted as to applying Shell rulings |
Key Cases Cited
- Carter v. Haygood, 892 So.2d 1261 (La. 2005) (prescription strict construction; burden on claimant to show interruption)
- Marin v. Exxon Mobil Corp., 48 So.3d 234 (La. 2010) (contra non valentem for concealment/ignorance; discovery rule applicability)
- Bazley v. Tortorich, 397 So.2d 475 (La. 1981) (definition of intentional tort under LWCA)
- Swope v. Columbian Chemicals Co., 281 F.3d 185 (5th Cir. 2002) (occupational exposure and immediate injury cases; not applicable here)
- Reeves v. Structural Pres. Sys., 731 So.2d 208 (La. 1999) (intentional act requirement not satisfied by mere risk or neglect)
- Walls v. American Optical Corp., 740 So.2d 1262 (La. 1999) (LWCA applicability to wrongful death claims timing)
- Austin v. Abney Mills, Inc., 824 So.2d 1137 (La. 2002) (significant tortious exposure theory for survival actions)
- Ducre v. Mine Safety Appliances, Inc., 963 F.2d 757 (5th Cir. 1992) (contra non valentem analysis in discovery context)