170 So. 3d 269
La. Ct. App.2015Background
- Tenorio worked for Alpha Tech 1981–1988 at Harvey, Louisiana yards where OGR scale was cleaned from pipes and equipment.
- The cleaning process released radioactive material, creating airborne exposure at the yards.
- He was diagnosed with squamous carcinoma of the vocal cords in November 2009.
- He filed suit on April 17, 2014 seeking damages from multiple oil companies for radiation exposure.
- The trial court sustained the prescription defense, dismissed the case with prejudice, and denied new trial; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Latent-disease prescription and contra non valentem applicability | Tenorio—contra non valentem suspends prescription; ignorance until 2013 tolls filing. | Defendants—prescription ran from 2009; Tenorio failed to prove suspension. | Prescription began in 2009; contra non valentem does not save the claim; affirm. |
| Standard of review and evidentiary burden on prescription in exception | Petition alleges suspension; trial court should accept all pleading facts as true if no evidence is offered. | On face of pleadings, action prescribed; plaintiff bears burden to prove suspension if prescription is facially evident. | Because prescription was facially evident and no evidence supported suspension, the court affirmed the prescription ruling. |
Key Cases Cited
- Allday v. Newpark Square I Office Condo. Ass’n, 113 So.3d 346 (La.App. 5 Cir. 2013) (prescription construed in favor of maintaining obligee's claim)
- Bailey v. Khoury, 891 So.2d 1268 (La.1 Cir. 2005) (damages accrual when injury manifests for latent-action analysis)
- Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La.1992) (establishes accrual timing for latent injuries)
- Loupe v. Avondale Shipyards, 470 So.2d 336 (La.App. 5th Cir. 1985) (limits contra non valentem where plaintiff's own neglect caused ignorance)
- Bradley v. Emplrs. Ins. Co., 97 So.3d 454 (La.App. 1 Cir. 2012) (contra non valentem applicability when discovery of facts delayed)
- In re Succession of Scurlock, 140 So.3d 318 (La.App. 5th Cir. 2014) (recognizes limited jurisprudential contra non valentem exception)
- Herrera v. Gallegos, 128 So.3d 306 (La.App. 5th Cir. 2013) (standard for reviewing findings on prescription)
- Cole v. Celotex Corp., 620 So.2d 1154 (La.1993) (proper accrual of damage actions under latent defect)