Ewing v. Armstrong World Industries, Inc.Ewing v. Armstrong World Industries, Inc.
Gary P. Kraus, Onebane, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, LA, for John Carroll Robicheaux.
Gary A. Lee, Richard M. Perles, Johanna G. King, Lee, Futrell & Perles, L.L.P., New Orleans, LA, for Peter Territo, Steven Kennedy, and Albert Bossier, Jr.
Samuel M. Rosamond III, Fleming & Rosamond, L.L.P., Metairie, LA, for Commercial Union Insurance Company.
David Joseph Bourgeois, Metairie, LA, for Branton Insulations, Inc.
William Lee Schuette, Jr., Jones, Walker, Waechter, Baton Rouge, LA, for Viacom, Inc.
Gregory Michael Anding, Gary A. Bezet, Kean, Miller, Hawthorne, Baton Rouge, LA, for Exxon Corporation and Texaco, Inc.
William Glenn Burns, Metairie, LA, for The Flintkote Company.
James E. Diaz, Onebane, Bernard, Torian, Lafayette, LA, for Brown & Root, Inc.
Stephen Nolan Elliott, Bernard, Cassisa, et al., Metairie, LA, for Reilly-Benton Company, Inc.
Joseph Warren Gardner, Jr., Christovich & Kearney, New Orleans, LA, for Highlands Insurance Company.
Lynn M. Luker, New Orleans, LA, for Foster-Wheeler Corporation.
Janet Leslie MacDonell, Arthur Wendel Stout III, Deutsch, Kerrigan & Stiles,
Susan B. Kohn, Simon, Peragine, Smith, New Orleans, LA, for The McCarty Corporation.
Christopher Kelly Lightfoot, Metairie, LA, for Taylor-Seidenbach, Inc.
Alison Speirer Borison, Lawrence Goode Pugh III, New Orleans, LA, for Eagle, Inc.
Larry Gene Canada, New Orleans, LA, for Combustion Engineering, Inc.
Kaye N. Courington, New Orleans, LA, for Hopeman Brothers, Inc.
Robert Edgar Caraway III, Kenan Slade Rand, Jr., New Orleans, LA, for Peter Territo, American Motorists Insurance Co., Steven Kennedy, Albert Bossier.
Valerie T. Schexnayder, Metairie, LA, for The Flintkote Company.
Troy Nathan Bell, New Orleans, LA, for Garlock Inc.
Claude Frederick Bosworth, Gordon Peter Wilson, Lugenbuhl, Burke, Wheaton, et al., New Orleans, LA, for Travelers Insurance Company.
Charles V. Giordano, Metairie, LA, for Rapid-American.
Walter Scott Brown, New Orleans, LA, for Uniroyal, Inc.
James Francis d‘Entremont, New Orleans, LA, for Babcock Borsig Power, Inc.
THIBODEAUX, Judge.
Plaintiffs, Gwendolyn T. Ewing, the wife of Murphy J. Ewing who contracted mesothelioma as a result of his work-related exposure to asbestos, and his children from a previous marriage, Wilson Ewing, Terry Paul Ewing, Rodney Ewing and Christine Ewing Bodin, sometimes collectively referred to as “plaintiffs or Ewing survivors,” appeal the judgment of the trial court granting the defendants‘, Peter Territo, Albert Bossier, Steven Kennedy, Commercial Union Insurance Company (Commercial Union), Highlands Insurance Company (Highlands), American Motorist‘s Insurance Company (American), Travelers Insurance Company (Travelers), and John Carroll Robicheaux, sometimes collectively referred to as “defendants,” exception of no cause of action on the plaintiffs’ loss of consortium claim. After reviewing the record and the applicable law, we affirm the judgment of the trial court and hold that the plaintiffs’ alleged cause of action for loss of consortium is barred by the exclusive remedies provision of the Louisiana Workers’ Compensation Law.
I.
ISSUE
The significant issue in this case is whether the trial court erred in granting the defendants’ exception of no cause of action where the plaintiffs filed a loss of consortium claim against executive officers in a wrongful death case. The decedent‘s death arose out of a long-latency occupational disease (mesothelioma) due to exposure to asbestos during the years 1964 through 1974. The decedent, Murphy J. Ewing, died on April 10, 1997. Until 1982, an action for loss of consortium did not exist, and since the 1976 amendment to
II.
FACTS AND PROCEDURAL HISTORY
Murphy J. Ewing was employed with Brown & Root, Inc. from about 1964
On July 26, 2002, the defendants filed peremptory exceptions of no cause of action with respect to the plaintiffs’ loss of consortium claims. On July 1, 2002, the trial court rendered a judgment that maintained the defendants’ peremptory exception of no cause of action with respect to the plaintiffs’ loss of consortium claims. It is from the trial court‘s judgment that the plaintiffs seek review in this court.
III.
LAW AND DISCUSSION
The plaintiffs argue that the petition states a cause of action for loss of consortium because: 1) their loss of consortium claims arose after September 10, 1982, the effective date of Act 202, which amended
A court of appeal reviews de novo a trial court‘s ruling sustaining a peremptory exception raising the objection of no cause of action because the exception raises a question of law and because the lower court‘s decision is generally based only on the sufficiency of the petition. City of New Orleans v. Board of Dirs. of La. State Museum, 98-1170 (La.3/2/99); 739 So.2d 748. “The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading.” Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). The burden of showing that the plaintiff has failed to state a cause of action is on the exceptor. City of New Orleans, 739 So.2d at 748.
For the purposes of determining the issues raised by the exception, the court must presume that the well-pleaded facts in the petition are true. Strasner v. State, 99-1099 (La.App. 1 Cir. 6/23/00); 762 So.2d 1206, writ denied, 00-2195 (La.10/27/00); 772 So.2d 125. No evidence may be introduced to support or controvert
Louisiana Civil Code Article 2315
The essence of the defendants’ argument with respect to
In a similar asbestos exposure case where the characteristics of a loss of consortium claim were analyzed, the Louisiana Fourth Circuit Court of Appeal stated that “a cause of action arises when negligent or tortious conduct causes injury.” Coates v. Owens-Corning Fiberglas Corp., 444 So.2d 788, 790 (La.App. 4 Cir.1984); see also McDuffie v. ACandS, Inc., 00-2745 (La.App. 4 Cir. 2/14/01); 781 So.2d 623. The defendants’ position is that the conduct causing Ewing injury occurred prior to the 1982 amendment to
Until an injured party‘s condition deteriorates to such an extent that his family is actually deprived of his consortium, service or society, they have suffered no injury. A party‘s separate cause of action for loss of consortium was thereby deemed to arise as of the time that the injured party begins to suffer the actual loss of consortium.
Thus, the time of the exposure or the onset of the injury causing asbestosis is not the event that determines the applicable law governing the separate loss of consortium claim, as defendants argue. Instead, it is the loss to the spouse or relative of those elements comprising consortium that is the decisive factor. The claim for loss of consortium and the impact of the 1982 amendment to
Defendants assert, however, that the immunity granted to executive officers by the 1976 amendment to
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 amendedLa.R.S. 23:1032 to extend the employer‘s tort immunity to persons previously considered third parties under the Act.
In Bazley v. Tortorich, 397 So.2d 475 (La.1981), the supreme court stated that the aim of the 1976 amendment to the Act was “to broaden the class of defendants to be granted immunity from suits by injured employees in tort or delict.” Id. at 479. As we noted, the date that an injury occurs is determinative of when a possible cause of action accrues. In Walls, the wrongful death cause of action occurred after 1976; therefore, the court concluded that the executive officers were granted immunity. It follows that since plaintiffs’ loss of consortium claims arose long after 1976, the year in which
Plaintiffs further assert that Act 989 of 1999, amending and reenacting Article 2315 to exclude future medical monitoring as damages, somehow permits retroactive application of the 1982 amendment to
In 1998, the Louisiana Supreme Court ruled in Bourgeois v. A.P. Green Industries, Inc., 97-3188 (La.7/8/98); 716 So.2d 355 (Bourgeois I), that asymptomatic plaintiffs who can prove a need for future medical monitoring by meeting seven specific criteria can recover the reasonable cost of that care as damages under
Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a
manifest physical or mental injury or disease.
The language of Section 2 of the Act makes it clear that the legislature intended to give the amendment retroactive effect.2 There is nothing in the Act itself or its history that indicates that the legislature intended to give the entire Article, including the loss of consortium cause of action added in 1982, retroactive effect.
The plaintiffs’ argument at this point turns on what it means to “reenact” an article or statutory provision. BLACK‘S LAW DICTIONARY 1444 (4th ed.1968), defines reenact as “To enact again; to revive.” As an illustration of its definition, Black‘s Law Dictionary cites the supreme court case Police Jury of Caddo Parish v. City of Shreveport, 137 La. 1032, 69 So. 828 (1915). Explaining Act 76 of 1884, amending and reenacting sections of Revised Statutes 1211 and 2778, the court stated:
The original sections did not lose their place or identity, and they were not obliterated by the act of the Legislature of 1884. There are no blank spaces in the Revised Statutes of the state where sections 1211 and 2778 once stood. Those sections, as amended, formed parts of the Revised Statutes since the original sections were amended and re-enacted in 1884....
The intention was to keep them in place, as amended; and the intention was not to make vacant places in the Revised Statutes, or to strike out said two sections.
. . . .
... When sections 1211 and 2778 were changed in phraseology and slightly in substance by the addition of cognate matter, they were still 1211 and 2778 of the Revised Statutes, and they continued to perform the former offices of those sections in their allotted relations to all the other sections of the groups of which they are integral parts.
Thus, when the legislature reenacted
The plaintiff in Naquin v. Titan Indemnity Co., 00-1585 (La.2/21/01); 779 So.2d 704, made an argument analogous to that made here by plaintiffs regarding the effect of reenacting a statute. In contrast to what the plaintiffs in this case seek— application of a prior amendment to
IV.
CONCLUSION
The judgment of the trial court granting the defendants-appellees’ peremptory exception of no cause of action is affirmed. Costs of this appeal are assessed to plaintiffs-appellants.
AFFIRMED.
Notes
Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person.
Article 2315 was again amended in 1999 to add language detailing certain items which are not recoverable as damages. The 1999 amendments were specifically declared to apply to all “claims existing or actions ... filed on its effective date,” July 9, 1999.