Landry v. Avondale Industries, Inc.Landry v. Avondale Industries, Inc.
Stephen N. Elliott, Francine M. Giugno, Robert A. Knight, Bernard, Cassisa, Elliott & Davis, Metairie, Counsel for Applicant in No. 2003-CC-0993.
Wendy K. Lappenga, Andrew L. Plauche, Jr., Plauche, Maselli, Landry & Parkerson, New Orleans, Johanna G. King, Richard M. Perles, Gary A. Lee, Lee, Futrell & Perles, New Orleans, Samuel M. Rosamond, III, Thomas W. Aycock, Crawford & Lewis, Baton Rouge, Counsel for Applicant in No. 2003-CC-0719.
Stephen N. Elliott, Francine M. Giugno, Robert A. Knight, Bernard, Cassisa, Elliott & Davis, Metairie, Wendy K. Lappenga, Andrew L. Plauche, Jr., Plauche, Maselli, Lаndry & Parkerson, New Orleans, Johanna G. King, Richard M. Perles, Gary A. Lee, Lee, Futrell & Perles, New Orleans, Samuel M. Rosamond, III, Thomas W. Aycock, Crawford & Lewis, Baton Rouge, Geoffrey P. Clement, Gary M. Zwain, Dana D. Anderson-Carson, Duplass, Zwain, Bourgeois & Morton, Lynn M. Luker, James F. d‘Entremont, Arthur W. Stout, III, Deutsch, Kerrigan & Stiles, New Orleans, Susan B. Kohn, Simon, Peragine, Smith & Redfearn, New Orleans, Brian C. Bossier, Blue, Williams, Metairie, Christopher K. Lightfoot, Valerie T. Schexnayder, Hailey, McNamara, Hall, Larmann & Papale, Metairie, E. Scott Hackenberg, Henchy, Verbois, Futrell & Foil, Baton Rouge, Troy N. Bell, Aultman, Tyner, Ruffin & Yarbrough, New Orleans, Lawrence G. Pugh, III, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, Charles V. Giordano, Miranda, Warwick & Milazzo, Metairie, Larry G. Canada, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, Gregory E. Bodin, Taylor, Porter, Brooks & Phillips, Baton Rouge, Gerolyn P. Roussel, Perry J. Roussel, Jr., Roussel & Roussel, LaPlace, Gordon P. Wilson, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, Scott P. Yount, Walter S. Brown, Preston & Cowan, John B. Edwards, III, Dogan & Wilkinson, John D. Cosmich, Forman, Perry, Watkins, Krutz & Tardy, Laurie J. Hutchings, Dawn E. Fulce, Kenan S. Rand, Jr., New Orleans, Counsel for Respondent in No. 2003-CC-1002.
Wendy K. Lappenga, Andrew L. Plauche, Jr., Plauche, Maselli, Landry & Parkerson, New Orleans, Johanna G. King, Richard M. Perles, Gary A. Lee, Lee, Futrell & Perles, New Orleans, Samuel M. Rosamond, III, Thomas W. Aycock, Crawford & Lewis, Baton Rouge, David S. Bland, Scott T. Winstead, Beau E. LeBlаnc, King, LeBlanc & Bland, New Orleans, Geoffrey P. Clement, Gary M. Zwain, Dana D. Anderson-Carson, Duplass, Zwain, Bourgeois & Morton, Metairie, Lynn M. Luker, James F. D‘Entremont, Arthur W. Stout, III, Deutsch, Kerrigan & Stiles, New Orleans, Susan B. Kohn, Simon, Peragine, Smith & Redfearn, New Orleans,
Stephen N. Elliott, Francine M. Giugno, Robert A. Knight, Bernard, Cassisa, Elliott & Davis, Metairie, David S. Bland, Scott T. Winstead, Beau E. LeBlanc, King, LeBlanc & Bland, New Orleans, Geoffrey P. Clement, Gary M. Zwain, Dana D. Anderson-Carson, Duplass, Zwain, Bourgeois & Morton, Metairie, Lynn M. Luker, James F. d‘Entremont, Arthur W. Stout, III, Deutsch, Kerrigan & Stiles, New Orleans, Susan B. Kohn, Simon, Peragine, Smith & Redfearn, New Orleans, Brian C. Bossier, Blue, Williams, Metairie, Christopher K. Lightfoot, Valerie T. Schexnayder, Hailey, McNamara, Hall, Larmann & Papale, Metairie, E. Scott Hackenberg, Henchy, Verbois, Futrell & Foil, Baton Rouge, Troy N. Bell, Aultman, Tyner, Ruffin & Yarbrough, New Orleans, Lawrence G. Pugh, III, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, Charles V. Giordano, Miranda, Warwick & Milazzo, Metairie, Larry G. Canada, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, Gregory E. Bodin, Taylor, Porter, Brooks & Phillips, Baton Rouge, Gerolyn P. Roussel, Perry J. Roussel, Jr., Roussel & Roussel, LaPlace, Gordon P. Wilson, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, Scott P. Yount, Walter S. Brown, Preston & Cowan, John B. Edwards, III, Dogan & Wilkinson, John D. Cosmich, Forman, Perry, Watkins, Krutz & Tardy, Laurie J. Hutchings, Dawn E. Fulce, Kenan S. Rand, Jr., New Orleans, Counsel for Respondent in No. 2003-CC-719.
VICTORY, J.
We granted this writ application to determine whether the wife of a worker who was exposed to asbestos at various intervals from 1959 to 1974, and who was diagnosed with and died from mesothelioma in 2002: (1) has a claim for pre-death loss of consortium under
FACTS AND PROCEDURAL HISTORY
Raleigh Landry worked for Avondale Industries from 1965 to 1967 and for McDermott, Inc., from 1959 to 1961, 1964 to 1965, and from 1973 to 1974. Plaintiffs allege he was exposed to asbestos during these employments, and that as a result, he contracted mesothelioma, which was diagnosed in January of 2002, and which caused his death on November 21, 2002. Raleigh Landry and his wife, Clailee Landry, filed suit against Avondale and its executive officers, McDermott and its executive officers, and several manufacturers of asbestos products for damages arising from his contraction of mesothelioma, including, but not limited to, loss of consortium claims filed on behalf of Mrs. Landry. By supplemental and amending petition, Jamie Landry and Glen Landry, children of Raleigh Landry, were substituted for Mr. Landry‘s survival damages, and, along with their mother, asserted survival and wrongful death actions which arose due to the injury and death of Raleigh Landry.
Peremptory exceptions of no cause of action for the loss of consortium claim were filed by the executive officer defendants of Avondale and by McDermott, and separate exceptions of these issues were filed by the manufacturing defendants, Reilly-Benton Company, Inc., and Liberty Mutual Insurance Co. These exceptions were denied by the trial court on October 29, 2002, and November 21, 2002. The trial court gave the following reasons for his judgments:
In Coates v. Owens-Corning Fiberglass[Fiberglas] Corp., 444 So.2d 788 (La.App. 4 Cir.1984) the court held that a cause of action for loss of consortium does not arise until the plaintiff actually suffers the loss. See also Delphen v. Dept. of Transp., 657 So.2d 328 (La.App. 4 Cir.1995) for the proposition that until an injured party‘s condition deteriorates to such an extent that his family is actually deprived of his consortium, soсiety and service, they have suffered no injury.
For similar reasons, this court finds that the instant case involves alleged asbestos-related injuries, which can result in a slowly developing condition which is not even noticeable, much less disabling, until this condition progresses to a point in time wherein a medical diagnosis can be
made. Therefore, petitioner Clailee Landry would suffer no injury until her husband‘s asbestos-related cancer progressed to such an extent that she was actually deprived of his consortium, society and service. Prior to Mr. Landry‘s diagnosis with mesothelioma in January 2002, any loss of consortium claim by Mrs. Landry would have been speculative and premature. Accordingly, as Mrs. Landry‘s loss of consortium arose after September 10, 1982, the effective date of Act 202 allowing for loss of consortium, the court finds that Mrs. Landry can assert her claim against defendants, including those executive officer defendants. Since Mrs. Landry‘s claim for loss of consortium is a derivative claim, it is not subject to the exclusive remedy provisions of the workers’ compensation statute since the primary claim of Mr. Landry arises due to an injury (mesothelioma) that is outside of the exclusive remedy of the workers’ compensation act. Only when the primary claim falls within the exclusive remedy of the workers compensation statute are the derivative claims also barred or governed by the workers’ compensation act. Walls v. American Optical Corp., 740 So.2d 1262 (La.1999) and Vallery v. Southern Baptist Hospital, 630 So.2d 861 (La.App. 4 Cir.1993).
The court of appeal, in 2-1 decisions, denied the defendants’ writ applications, ruling that “[o]n the showing made, we decline to exercise our supervisory jurisdiction.” Landry v. Avondale Industries, Inc., et al., 02-2341 (La.App. 4 Cir. 2/11/03), 02-2372 (La.App. 4 Cir. 3/6/03), 02-2373 (La.App. 4 Cir. 3/6/03). We granted and consolidated the defendants’ writ applications. Landry v. Avondale Industries, Inc., et al., 03-0719 (La.6/20/03), 847 So.2d 1248 (filed by Peter Territo, Edward Blanchard, J. Melton Garrett, Albert Bossier, Jr., Commercial Union Insurance Company, Addison Daigle, Francis C. Naquin and H.W. Bailey), c/w 03-0993 (La.6/20/03), 847 So.2d 1247 (filed by Reilly-Benton Co., Inc. and Liberty Mutual Insurance Co.), c/w 03-1002 (La.6/20/03), 847 So.2d 1247 (filed by McDermott).1
Application of the 1982 Amendment to La. C.C. art. 2315
The executive officers and directors of Avondale and McDermott argue that Mrs. Landry‘s loss of consortium claim did not arise until Mr. Landry was diagnosed with mesothelioma, but that under our holding in Anderson v. Avondale Industries, 00-2799 (La.10/16/01), 798 So.2d 93, the 1982 amendment to
Thus, as an initial matter, we address the issue of when a cause of action for loss of consortium accrues. “Under Louisiana law, a cause of action accrues when a party has the right to sue.” Bourgeois v. A.P. Green Indus., Inc., 00-1528 (La.4/3/01), 783 So.2d 1251, 1259; Falgout v. Dealers Truck Equip. Co., 98-3150 (La.10/19/99), 748 So.2d 399. As even the plaintiffs recognize, it is well-settled that a cause of action for loss of сonsortium does not accrue until a plaintiff suffers the actual loss of consortium, which has been held to occur at the time an injured party‘s condition deteriorates to such an extent that his family is actually deprived of his consortium, service or society. William E. Crawford, Developments in the Law 1993-1994, 55 La. L.Rev. 657, 658 (1995); Coates v. Owens-Corning Fiberglas Corp., 444 So.2d 788 (La.App. 4 Cir.1984); Faraldo v. Hanover Ins. Co., 600 So.2d 81 (La.App. 4 Cir.1992); Ewing v. Armstrong World Industries, Inc., 02-918 (La.App. 3 Cir. 2/19/03), 846 So.2d 813; Abadie v. Commercial Union Ins. Co., 464 So.2d 979 (La.App. 4 Cir.1985); McDuffie v. ACandS, Inc., 00-2745 (La.App. 4 Cir. 2/14/01), 781 So.2d 623; but see Ferguson v. Burkett, 454 So.2d 413 (La.App. 3 Cir. 1984) (refusing to allow a loss of consortium claim because the acts or negligence of defendants occurred prior to the 1982 amendment). There has been no allegation that Mrs. Landry suffered a loss of consortium prior to 1982, and in fact plaintiffs assert that the loss of consortium claims did not accrue until after Raleigh Landry was diagnosed with mesothelioma on January 15, 2002. We agree, and hold that, because Mrs. Landry did not have a right to sue for loss of consortium until January of 2002, her cause of action did not accrue until that time.
In 1982, by Acts 1982, No. 202, § 1,
B. 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....
At issue is whether that article as amended in 1982 applies in this case where the negligent conduct, i.e., the exposure to asbestos, occurred prior to 1982, but the cause of action arose after that date. In Anderson, we faced a similar issue of whether former
In enacting Acts 1982, No. 202, § 1, the legislature did not express its intent with regard to its application,2 thus we look to
In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.
“‘Substantive laws,’ for purposes of determining whether a law should be applied retroactively, are those which establish new rules, rights, and duties, or change existing ones.” Anderson, supra at 97; Aucoin v. State Through Dept. of Transp. and Dev‘t, 97-1938, 97-1967 (La.4/24/98), 712 So.2d 62, 67. As with the law allowing for punitive damages in Anderson, the 1982 amendment to
Mrs. Landry argues that since her cause of action for loss of consortium arose
[a] law is retroactive when it goes back to the past either to evaluate the conditions of the legality of an act, or to modify or suppress the effects of a right already acquired. Outside of those conditions, there is no retroactivity.”
Anderson, supra at 97-98 (citing Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262, 1267 (citing 1 M. Planiol, Treatise on the Civil Law, § 243 (La.St.L.Inst.Trans.1959))). “Under Planiol‘s first situation in which a law operates retroactively, when a intervening law creates a cause of action, and thus attaches new consequences to past events, the retroaсtivity event is the conduct or activity regulated.” Anderson, supra at 99. Thus, as in Anderson, because the amendment to
Immunity Defense
The employer defendants also argue that even if Mrs. Landry can assert her cause of action for loss of consortium, because that cause of action did not arise until January of 2002, they are immune from tort liability by virtue of
In Walls, this Court held that applying the 1976 amendment to
Plaintiffs argue that our holding in Walls was based on a specific finding that a wrongful death action was not a derivative action. 740 So.2d at 1274. Plaintiffs argue that derivative claims, such as loss of consortium claims, are by their very nature governed by the status of the primary victim‘s claim. They argue that Mr. Landry‘s claims are not governed by the Workers’ Compensation Act under the “exposure theory” of Austin v. Abney Mills, and that therefore, the derivative loss of consortium claim is not either. They cite Walls for the proposition that “only when the primary victim‘s claim falls within the exclusive remedy of the worker‘s compensation statute are the derivative claims also barred or governed by the workers’ compensation act.”
In Walls, we addressed an identical argument made by the plaintiffs in that case by finding that a wrongful death action was not a derivative action.5 In so doing, we stated that this Court had “characterized the consortium claim as derivative of a primary victim‘s injury in Ferrell v. Fireman‘s Fund Ins. Co., 96-3028, p. 2 (La.7/1/97), 696 So.2d 569, 574.” 740 So.2d at 1274. In Ferrell, we were interpreting
The claim for loss of consortium is almost indistinguishable from the claim for wrongful death in that both causes of action are dependent on a primary tort to another person. Nonetheless, both claims are, beyond question, causes of action separate from any claim of the primary victim. The loss of consortium and wrongful death claims are thus derivative only in the sense that the damages suffered by these claimants flow from their relationship with the primary tort victim. Neither claim, however, is the assertion of the primary victim‘s сause of action itself, as in the case with a survival action.
Id. We agree with Professor Crawford‘s conclusion that loss of consortium claims are derivative “only in the sense that the damages suffered by these claimants flow from their relationship with the primary tort victim.” However, this does not mean that the loss of consortium claim is governed by the status of the primary victim‘s claim. A loss of consortium claim, like a wrongful death claim, clearly compensates the beneficiaries for their own injuries, separate and distinct from the victim‘s injuries. Both are unlike a survival аction, which we stated in Taylor v. Giddens, “comes into existence simultaneously with the existence of the tort and is transmitted to beneficiaries upon the victim‘s death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death. It is in the nature of a succession right.” 618 So.2d 834 (La.1993).
Therefore, in spite of the fact that a loss of consortium claim is characterized as a derivative claim in the sense discussed above, that does not prevent the application of the holding in Walls in this case. Accordingly, we hold that because the loss of consortium claim arose after the 1976 amendment to
CONCLUSION
A claim for loss of consortium accrues at the time a plaintiff suffers an actual loss of consortium, which is the point at which an injured party‘s condition deteriorates to such an extent that his family is actually deprived of his consortium, sеrvice, or society. In this case, as plaintiffs allege, Mrs. Landry‘s loss of consortium claim accrued at the earliest in 2001 or 2002, at around the time Mr. Landry was diagnosed with mesothelioma, but the exposure that resulted in this diagnosis occurred from 1959 to 1974. Under our holding in Anderson, because a cause of action for loss of consortium did not exist under our laws until
DECREE
For the reasons stated herein, the judgments of the court of appeal are reversed, the exceptions of no cause of action on the loss of consortium claim are granted, Mrs. Landry‘s pre-death loss of consortium claims are dismissed with prejudice, and the case is remanded for further proceedings.
REVERSED AND REMANDED.
JOHNSON, Justice concurs in the result.
KNOLL, J., concurs in the result only.
CALOGERO, C.J., concurs in part and assigns reasons.
CALOGERO, Chief Justice, concurs in part.
I concur in that portion of the majority decision disallowing Ms. Landry‘s claim for loss of consortium. Because all of Mr. Landry‘s exposure to asbestos occurred between 1959 and 1974, before the legislature in 1982 amended
On the other hand, I believe that the majority‘s decision to find that the executive officers and directors are immune from liability for Ms. Landry‘s loss of consortium damages under
ON APPLICATION FOR REHEARING ON BEHALF OF REILLY-BENTON COMPANY, INC. AND LIBERTY MUTUAL INSURANCE COMPANY
Rehearing denied.
On page 120 of the majority opinion, we referred to Reilly-Benton Company, Inc. (“Reilly-Benton“) as “manufacturing defendants.” It is clear the majority did not hold that Reilly-Benton was a manufacturing defendant, but was merely alleged to be a manufacturing defendant.
Notes
[T]he time of the exposure or 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
...
It follows that since plaintiffs’ loss of consortium claims arose long after 1976, the year in which
[]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.[]
Section 2. The provisions of this Act are interpretative of Civil Code Article 2315 and are intended to explain its original intent, notwithstanding the contrary interpretation given in Bourgeois v. A.P. Green Indus., Inc., 97-3188 (La.7/8/98), 716 So.2d 355 [(holding that Art. 2315 encompassed claims fоr medical monitoring by individuals with no demonstrable injury)], and all cases consistent therewith.
Section 3. The provisions of this Act shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date.
Act 989 of 1999 was enacted with the exclusive purpose of excluding medical monitoring from the types of damages recoverable under Art. 2315 unless said medical monitoring is directly related to a manifest physical or mental injury or disease. Clearly, the language in Sections 2 and 3 applies only to the language included in Act 989, and not the entire statute. Ewing, supra. See also Naquin v. Titan Indem. Co., 00-1585 (La.2/21/01), 779 So.2d 704. In addition, in Bourgeois II, this Court held that Act 989 could not effect a retroactive change in the substantive law even though the legislature specifically stated that Act 989 was intended to explain the original intent of Art. 2315, and even though Act 989 specifically stated that it was to be applicable to all claims existing on its effective date. Bourgeois v. A.P. Green Indus., Inc., 00-1528 (La.4/3/01), 783 So.2d 1251.The plaintiffs’ urge this Court to find that the wrongful death action is a derivative action “deriving from the wrongful act and injury to the victim whose eventual death results in further injury to the survivors.” The plaintiffs argue that the right to recover, or the “right of аction,” arises with the wrongful conduct under