Jerry May, Perry May, David May, Vernell May Espa, and Irma May Taylor v. cooper/t. Smith Stevedoring Company, Inc.

JERRY MAY, PERRY MAY, * NO. 2024-CA-0272
DAVID MAY, VERNELL MAY
ESPA, AND IRMA MAY * COURT OF APPEAL
TAYLOR
* FOURTH CIRCUIT
VERSUS
* STATE OF LOUISIANA
COOPER/T. SMITH
STEVEDORING COMPANY, *
INC., ET AL.
*
*******

KKH
HERMAN, J. DISSENTS WITH REASONS

I respectfully dissent from the majority’s opinion. At the outset, I find that

Ehlers v. Ports America Gulfport, Inc., 2023-0575 (La. App. 4 Cir. 5/16/24), 401

So.3d 159, to which the majority relies upon, is distinguishable. In Ehlers, we

determined that based on the evidence presented, or lack of evidence, the

defendant, Louisiana Insurance Guaranty Association (“LIGA”), failed to carry its

burden to show that the policies issued to Mr. Ehlers’ employer (SSA Gulf, Inc.)

actually contained Exclusion (e). In that proceeding, LIGA filed a motion for

summary judgment asserting that all pertinent WC/EL policies issued to SSA Gulf,

Inc. utilized the NCCI Standard Form Policy which included the 36-month

exclusion.1 Plaintiffs filed an opposition, arguing that LIGA was unable to

produce the actual policies or provide other competent evidence of the policy

language. The trial court agreed, denying LIGA’s motion for summary judgment.

We affirmed that ruling.

In the present case, however, it is evident from the record that plaintiffs

never questioned the existence (or content) of the Standard Form Policies that

Liberty Mutual and ENIC issued to La. Stevedores, Inc. in either their motion for

summary judgment or in opposition to the cross-motions for summary judgment.

1 It has been recognized that in many asbestos related disease cases where the insurers had

become insolvent over the years, the actual policies could not be located.
1

In fact, the record demonstrates that plaintiffs included an excerpt of the Standard

Form Policy – containing Exclusion (e) – as an exhibit in their opposition to the

cross-motions for summary judgment. Based on a de novo review, I find that the

defendants met their burden of proof to show that the policies in question

contained Exclusion (e).

Moreover, unlike in Ehlers, plaintiffs have raised this issue for the first time

on appeal. “Appellate courts generally find it inappropriate to consider an issue

raised for the first time on appeal that was not plead, urged, or addressed in the

court below.” Graubarth v. French Mkt. Corp., 2007-0416, p. 5 (La. App. 4 Cir.

10/24/07), 970 So.2d 660, 664 (citing Johnson v. State, 2002-2382, p. 4 (La.

5/20/03), 851 So.2d 918, 921).

Additionally, I disagree with the majority’s position that we are bound by

Faciane v. Southern Shipbuilding Corp., 446 So.2d 770, 773 (La. App. 4th

Cir.1984) to find that Exclusion (e) is ambiguous. In Faciane, a silicosis case, the

Court found that genuine issues of material fact as to the classification of plaintiff’s

injury existed, stating only, “[t]o say the least this definition is unclear.” Id. at 774.

However, more recently, in Hayes v. Eagle, Inc., 2003-1575, p. 5 (La. App. 4 Cir.

5/12/04), 876 So.2d 108, 111, this Court specifically determined that the policy

language contained in Exclusion (e) was “clear and unambiguous.” Thus, the

plaintiff’s claim for asbestos exposure was barred by the thirty-six-month

exclusion. Again, in Courville v. Lamorak, 2020-0073 (La. App. 4 Cir. 5/27/20),

301 So.3d 557, we held that Exclusion (e) applied to bar the plaintiffs’ asbestos

claims based on the thirty-six month time period.

Considering this Court’s two most recent pronouncements in Hayes and

Courville, finding Exclusion (e) applicable to bar claims for asbestos related

diseases, I would affirm the February 5, 2024 judgment denying plaintiffs’ motion

2

for summary judgment and granting the cross-motions for summary judgment filed

by Liberty Mutual and LIGA.

3