Samuel Alexander v. Thiokol Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 04-625

SAMUEL ALEXANDER, ET AL.

VERSUS

THIOKOL CORPORATION, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 91528
HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Oswald A. Decuir,
Judges.

REVERSED AND REMANDED.

Scott R. Bickford
M artzell & Bickford
338 Lafayette St.
New Orleans, LA 70130
(504) 581-9065
Counsel for: Defendant/Appellee
Kali A. Anderson
Samuel August
Chadwick August
Dawn R. August

Edward Paul Landry
Landry & W atkins
P. O. Drawer 12040
New Iberia, LA 70562-2040
(337) 364-7626
Counsel for: Defendant/Appellee
Continental Casualty Company

Stephen Porter Hall
Phelps Dunbar, L.L.P.
365 Canal St., Suite 2000
New Orleans, LA 70130-6534
(504) 566-1311
Counsel for: Defendant/Appellee
Certain Underwriters at Lloyd's London

Richard M . Simses
Abbott, Simses, & Kuchler
1360 Post Oak Blvd., #1700
Houston, TX 77056
(713) 627-9393
Counsel for: Defendant/Appellee
The Home Insurance Company

Patrick J. Hanna
Rabalais, Hanna, & Hays
701 Robley Dr., #210
Lafayette, LA 70503
(337) 981-0309
Counsel for: Defendant/Appellee
Nelson P. Stelly
Sidney M artin
Vernon L. Langlinais

Scott C. Seiler
Liskow & Lewis
701 Poydras St., Suite 5000
New Orleans, LA 70139-5099
(504) 581-7979
Counsel for: Defendant/Appellee
M orton Salt Company
M orton Thiokol
M orton Chemical Company

Gordon Peter W ilson
Lugenbuhl, Burke, Wheaton et al.
601 Poydras Street, Ste 2775
New Orleans, LA 70130
(504) 568-1990
Counsel for: Defendant/Appellee
Travelers Casualty & Surety Company

Christopher Luke Edwards
Assistant District Attorney
15 th Judicial District Court
P. O. Box 3306
Lafayette, LA 70502
(337) 232-5170
Counsel for: Plaintiff/Appellant
Samuel Alexander, et al

Kyle Patrick Polozola
George H. Robinson, Jr.
Liskow & Lewis
P. O. Box 52008
Lafayette, LA 70505
(337) 232-7424
Counsel for: Defendant/Appellee
M orton Thiokol
M orton Salt Company
M orton Chemical Company

SAUNDERS, J.

Plaintiffs are appealing the trial court’s grant of a peremptory exception of no

cause of action, thus dismissing the case. We reverse the trial court’s decision to

grant the exception of no cause of action.

FACTS

Between 1945 and approximately 1990, the plaintiffs or their decedents, were

employed by Morton, the defendant. On July 9, 1999, the plaintiffs filed a lawsuit

based on claims arising out of exposure to asbestos and silica.

Of the original plaintiffs, only seventeen were listed as plaintiffs on this appeal.

Defendants to this appeal are Morton International, Inc., Thiokol Corporation,

Morton Thiokol, Morton Chemical Company, and Morton Salt Company.

Collectively, these defendants are referred to as Morton. Morton International, Inc.,

is the successor to the other companies. One of the named defendants is Thiokol

Corporation, which manufactured and distributed allegedly defective protective

equipment that claimants occasionally used.

In the initial pleadings, the plaintiffs allege intentional torts and negligence on

behalf of the defendants. Plaintiffs allege that due to exposure to asbestos and silica

and the use of defective equipment, some of the plaintiffs have died or contracted

cancer, some have the fear of cancer, while others have differing ailments; thus, the

reason for this case. Plaintiffs filed suit for general, specific and punitive damages,

as well as medical monitoring.

PROCEDURAL FACTS

Plaintiffs filed suit on July 9, 1999, alleging negligence and intentional torts.

On August 30, 1999, the defendant, Morton, filed a peremptory exception of no cause

of action. The exception was heard on July 21, 2003. The judge signed a judgment

granting the exception on August 20, 2003. On March 2, 2004, the plaintiffs filed a

devolutive appeal based on the granting of the exception. However, the judgment of

August 20, 2003, was not certified as a final and appealable judgment until May 20,

2004.

ASSIGNMENT OF ERRORS

The plaintiffs contend that the trial court erred in maintaining Morton’s
peremptory exception of no cause of action, and finding that Morton is
statutorily immune from plaintiffs’ claims under the exclusivity
provisions of the Louisiana Workers’ Compensation Act, LSA-R.S.
23:1032.

LAW AND ANALYSIS

In reviewing a trial court’s grant of a peremptory exception of no cause of

action, the appellate court’s standard of review is de novo.

The peremptory exception of no cause of action is designed to test
the legal sufficiency of the petition by determining whether plaintiff is
afforded a remedy in law based on the facts alleged in the pleading. No
evidence may be introduced to support or controvert the objection that
the petition fails to state a cause of action. The exception is triable on
the face of the papers and for the purposes of determining the issues
raised by the exception, the well-pleaded facts in the petition must be
accepted as true. On review, we consider the matter de novo, as the
exception presents a question of law. [Citations omitted]

Sterling v. Shirely, 02-0915, p. 3 (La.App. 3 Cir. 12/11/02), 832 So.2d 1179, 1181-82.

“Any reasonable doubt concerning the sufficiency of the petition must be resolved in

favor of finding a cause of action stated.” Thomas v. Armstrong World Indus., 95-

2222 (La.App. 1 Cir. 6/28/96), 676 So.2d 1185, 1187, writ denied, 96-1965 (La.

11/1/96), 681 So.2d 1272.

PRELIMINARY MATTERS

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The defendants contend that the judgment on review is not properly certified

as an appealable partial final judgment. However, Louisiana Code of Civil Procedure

article 1915B(1) designates when a partial judgment is final and appealable.

When a court renders a partial judgment or partial summary judgment
or sustains an exception in part, as to one or more but less than all of
the claims, demands, issues, or theories, whether in an original
demand, reconventional demand, cross-claim, third party claim, or
intervention, the judgment shall not constitute a final judgment unless
it is designated as a final judgment by the court after an express
determination that there is no just reason for delay.

The appeal before us is a proper partial final judgment. The judgment states, “[i]t is

further ordered, adjudged, and decreed, that there being no just reason for delay, this

Judgment is hereby designated and certified as a final and appealable Judgment.” All

that La.Code Civ.P. art 1915B(1) requires is an “express determination that there is

no just reason for delay.” This judgment clearly states that and designates it as final.

Therefore, this appeal was properly certified as an appealable partial final judgment.

ASSIGNMENT OF ERROR

The plaintiffs argue that the trial court erred in maintaining the defendants’

peremptory exception of no cause of action. The defendants argue that the plaintiffs’

claims are barred by statutory immunity in Louisiana Revised Statute 23:1032, and

thus the trial court was correct in granting the no cause of action exception.

Louisiana Revised Statute 23:1031.1(A) Occupational Disease, has undergone

significant changes since 1952.

In 1952, the legislature provided for the coverage of occupational
diseases under Louisiana’s workers’ compensation law. La.Rev.Stat.
23:1031.1(A) (1952). The statute defined “occupational disease” by
identification, stating in part that “an occupational disease shall include
only those diseases hereinafter listed when contracted by an employee
in the course of his employment as a result of the nature of the work

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performed.” La.Rev.Stat. 23:1031.1(A) (1952) (emphasis added). This
“exclusive list,” as we observed in O’Regan v. Preferred Enterprises,
Inc., 98-1602, p.6 (La.3/17/00), 758 So.2d 124, 129 (on rehearing),
included diseases caused by contact with specific substances, namely the
diseases of contact poisoning from enumerated sources, asbestosis,
silicosis, dermatosis, and pneumoconiosis. La.Rev.Stat. 23:1031.1(A)
(1952). In 1958, by Acts 1958, No. 39, the legislature added
tuberculosis as one of the specified occupational diseases for certain
hospital workers. La.Rev.Stat. 23:1031.1(A) (1958). Although the
1952 and 1958 enactments listed specific occupational diseases, in 1975
by Acts 1975, No. 583, § 2, the legislature revised La.Rev.Stat.
23:1031.1(A) by removing the list of specific diseases for which there
was coverage under workers’ compensation and substituting the
following definition:

An occupational disease shall mean only that disease or
illness which is due to causes and conditions characteristic
of and peculiar to the particular trade, occupation, process,
or employment in which the employee is exposed to such
disease.

Austin v. Abney Mills Inc., 01-1598, p. 3 (La. 9/4/02), 824 So.2d 1137, 1140,

rehearing denied (La. 9/23/02). Prior to 1952, there was no coverage for

occupational diseases linked to asbestos.

The plaintiffs refer us to the Louisiana Civil Law Treatise on Workers’

Compensation by Malone & Johnson for the proposition that occupational diseases

were not barred by workers’ compensation legislation prior to 1952.

Though there was early opinion to the contrary, it was finally held that
since the act provided no coverage whatsoever for occupational disease,
the employee would enjoy no compensating advantage for the surrender
of any tort rights he might have had, and should therefore be free to
proceed against the employer in tort. This principle retained some
importance even after the introduction of occupational disease coverage
in the Act in 1952, since the legislature at that time chose a schedule
approach to coverage. Hence, certain diseases not in the schedule
probably remained subject to tort proceedings. With the 1975
amendments providing general occupational disease coverage under the
Act, however, there would remain no occasion to litigate such matters
in tort proceedings against the employer. Thus the 1976 amendments to
La. R.S. 23:1032 merely reflected that the exclusive remedy of an

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employee now applies to occupational disease as well as injury. As we
shall see later, however, the concept of permitting a tort recovery when
the employment-related incident is not covered by the Act has never
entirely disappeared.

Malone & Johnson, Workers’ Compensation § 361 at 143-144 (Louisiana Civil Law

Treatise, Vol. 14, 2002).

In Austin, 824 So.2d at 1145, the court recognized this principle, stating:

[T]his general rule applies in the context of workers’ compensation and
occupational diseases as well. Where the act provides no coverage for
an occupational disease, the employee enjoys no compensating
advantage for the surrender of any tort rights he might have; therefore,
he is free to proceed against his employer in tort. See Malone &
Johnson, supra, § 361, p. 151 (West 1994). Thus, if the employee
acquires a right to sue in tort for a non-covered occupational disease, he
cannot later be divested of that right by subsequent legislative expansion
of coverage for occupational disease. The Fourth Circuit recently
upheld that principle when it held that, because the pre-1975 version of
La.Rev.Stat. 23:1031.1 did not include mesothelioma as a covered
disease or asbestos as a substance that caused disease, the plaintiffs were
not precluded from pursing a negligence action against their employer.
Callaway v. Anco Insulation, Inc., 98-0397 (La.App. 4 Cir. 3/25/98),
714 So.2d 730, writ denied, 98-1034 (La. 11/19/99), 749 So.2d 666.

This Louisiana Supreme Court case endorses the principle that a plaintiff who

contracts an occupational disease has a right to sue in tort when the workers’

compensation act does not provide coverage for that disease. Austin also

acknowledged the Fourth Circuit’s position that prior to 1975, there was no coverage

for mesothelioma or exposure to asbestos, and therefore, the plaintiff could pursue

an action in negligence. “If the claim of plaintiff, therefore, is not within the

compensation statute, certainly he may enforce his rights under the general law of

torts. . .” Clark v. Southern Kraft Corp., 200 So. 489, 491 (La.App. 2 Cir. 11/19/40),

writ denied, (La. 3/3/41).

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In Callaway v. Anco Insulation, Inc., 98-0397, p. 3 (La.App. 4 Cir. 3/25/98),

714 So.2d 730, 731, writ denied, 98-1034 (La. 11/19/99), 749 So.2d 666, the plaintiff

brought a survival action in which he alleged exposure to asbestos between 1947 and

1977. “[T]he plaintiff’s survival action is governed by the workers’ compensation

statute which was in effect at the time the decedent was exposed to asbestos.” Also,

in Bourgeois v. A.P. Green Indus. 02-713, (La.App. 5 Cir. 2/25/03), 841 So.2d 902,

909, writ denied, 04-1621 (La. 7/16/04), 877 So.2d 991, the Fifth Circuit stated, “in

resolving latent long-term toxic torts courts must apply the law that was in effect at

the time of the significant causative exposure.” They also stated, “[t]hose plaintiffs

whose significant exposure was pre-1952, before asbestosis was a covered

occupational disease, have an assertable negligence cause of action against Avondale

and Avondale’s executive officers.” Id. at 909-10.

In Gautreaux v. Rheem Manuf. Co., 96-2193 (La.App. 4 Cir. 12/27/96), 694

So.2d 977, 978, writ denied, 97-0222 (La. 3/14/97), 690 So.2d 39. the plaintiff filed

suit on behalf of the decedent, Charles Gautreaux, who was employed with Rheem

Manufacturing Company from 1946 to 1982. During that time he was exposed to

asbestos. Mr. Gautreaux died of lung cancer allegedly caused from the asbestos

exposure. The court stated:

Prior to amendment in 1975, Section 1031.1 of Title 23 listed various
occupational diseases that were covered by workers’ compensation and
also listed certain substances that, when they caused disease as a result
of occupational exposure, that disease would also be covered by
workers’ compensation. Lung cancer was not a listed disease and
asbestos was not a listed substance although asbestosis was a listed
disease.

The defendants argue that the plaintiffs did not contend that they had any

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significant asbestos exposure prior to 1952. However, the defendants are mistaken

as the plaintiffs clearly argued pre-1952 exposure to asbestos. The plaintiffs argue

in the First Supplemental and Amending Petition for Damages:

From approximately 1938 to 1990, Petitioners were employed by
MORTON during which time they were required to handle large
quantities of asbestos, and as a result, they were exposed to asbestos and
silica containing products and at times used protective devices and
equipment manufactured and distributed by Thiokol. Petitioners were
continuously exposed to raw blue asbestos while in the areas where the
raw asbestos were being mixed with water to form a paste with which
lids of sale reactors were sealed. Additionally, they were instructed to
clean up asbestos waste on the floors of the MORTON facility by
sweeping in their and others’ work areas. They were exposed to dust
emanating from the asbestos being used by other workers employed by
MORTON. Finally, Petitioners sustained substantial occupational
exposure to asbestos and/or silica while employed at Morton.

In the original appellate brief, the plaintiffs argue:

In the instant matter, as a result of exposure to asbestos,
Plaintiffs/Appellants have contracted, among other things,
pneumoniosis, and/or pleural thickening, a precursor to mesothelioma,
clearly NOT covered by the Act prior to 1975. Furthermore, at the time
Plaintiff/Appellants were exposed to asbestos and consequently,
acquired their right to sue in tort, asbestos was not covered by the Act
as a substance that caused disease.

Our review of the record reveals that some of the plaintiffs were employed by

the defendants and exposed to asbestos prior to 1952. Thus, those plaintiffs have a

cause of action. However, the record is not specific as to which plaintiffs were

employed and exposed prior to 1952, and therefore, that determination must be made

at the trial court level when further information is provided. Arguments affecting

those employed and possibly exposed after 1952 will also be addressed by the trial

court.

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CONCLUSION

In reviewing a peremptory exception of no cause of action, the appellate court

looks at the allegations in the petition to determine if based on that alone, the

plaintiffs would be entitled to relief. Based on the pleadings of record, the trial court

incorrectly granted the defendants’ peremptory exception of no cause of action. We

therefore reverse the trial court’s grant of the peremptory exception of no cause of

action and remand this case for further proceedings consistent with this opinion.

Costs of this appeal are assessed to the defendants.

REVERSED AND REMANDED.

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