Samuel Alexander v. Thiokol Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1215

SAMUEL ALEXANDER, ET AL.

VERSUS

THIOKOL CORPORATION, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT,
PARISH OF IBERIA, NO. 91,528,
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and Michael G. Sullivan,
Judges.

REVERSED AND REMANDED.

C. Luke Edwards
Attorney at Law
Post Office Box 3483
Lafayette, Louisiana 70502
(337) 233-9995
Counsel for Plaintiffs/Appellants:
Samuel Alexander, et al.

Patrick J. Hanna
Rabalais, Hanna & Hebert, LLC
701 Robley Drive, Suite 210
Lafayette, Louisiana 70503
(337) 981-0309
Counsel for Defendants/Appellees:
Nelson P. Stelly
Sidney Martin
Vernon L. Langlinais

Scott R. Bickford
Martzell & Bickford
338 Lafayette Street
New Orleans, Louisiana 70130
(504) 581-9065
Counsel for Plaintiffs:
Joseph Davis, et al.

Edward P. Landry
Landry & Watkins
Post Office Drawer 12040
New Iberia, Louisiana 70562-2040
(337) 364-7626
Counsel for Defendant:
Continental Casualty Company

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

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

Scott C. Seiler
Liskow & Lewis
701 Poydras Street, Suite 5000
New Orleans, Louisiana 70139-5099
(504) 581-7979
Counsel for Defendants:
Morton Salt Company
Morton Thiokol
Morton Chemical Company

Gordon P. Wilson
Lugenbuhl, Wheaton, Peck, Rankin & Hubbard
601 Poydras Street, Suite 2775
New Orleans, Louisiana 70130
(504) 568-1990
Counsel for Defendant:
Travelers Casualty & Surety Company

Kyle P. Polozola
Liskow & Lewis
Post Office Box 52008
Lafayette, Louisiana 70505
(337) 232-7424
Counsel for Defendants:
Morton Thiokol
Morton Salt Company
Morton Chemical Company

SULLIVAN, Judge.

The issue presented by this appeal is whether Plaintiffs’ suit against their

employer for injuries sustained from exposure to asbestos and silica interrupted

prescription for similar claims made against the employer’s executive officers, who

were added as Defendants over three years after the filing of the original suit. The

trial court sustained the executive officers’ exception of prescription, and Plaintiffs

have appealed. For the following reasons, we reverse and remand.

Procedural Background

On July 9, 1999, numerous Plaintiffs filed suit against Thiokol Corporation

(Thiokol), individually and as successor to various Morton-owned companies, and

Lloyd’s of London (Lloyd’s), as the alleged insurer of Thiokol and its unnamed

executive officers who were not sued. Lloyd’s was subsequently dismissed upon

discovery that it did not provide coverage as alleged. On July 8, 2000, the attorney

who originally filed suit, Luke Edwards, withdrew as counsel of record for a number

of Plaintiffs, who were later represented by the firm of Martzell and Bickford. Both

sets of Plaintiffs then filed supplemental and amending petitions naming the

executive officers and their alleged insurers, with the Edwards Plaintiffs filing on

August 9, 2002, and Martzell Plaintiffs filing on September 13, 2002. On August 4,

2003, the executive officers filed the peremptory exception of prescription at issue

in this appeal. That exception concerns only the Edwards Plaintiffs.

On August 20, 2003, the trial court signed a judgment dismissing the claims

of both the Martzell and Edwards Plaintiffs against Thiokol on an exception of no

cause of action, finding that their exclusive remedy was in workers’ compensation.1

However, this court reversed that judgment in Alexander v. Thiokol Corp., 04-625

(La.App. 3 Cir. 11/10/04), 887 So.2d 685, after concluding that further information

was needed to make that determination. Also on August 20, 2003, the trial court

granted the executive officers’ exception of prescription.

Discussion

On appeal, Plaintiffs argue that their negligence action against Thiokol was

brought in the proper court and that the executive officers are solidarily liable with

Thiokol based upon the supreme court’s definition of that principle in Williams v.

Sewerage & Water Board of New Orleans, 611 So.2d 1383 (La.1993). Alternatively,

if their cause of action is found to be only for workers’ compensation benefits, then

Plaintiffs argue that their suit, which was filed in district court rather than in the

Office of Workers’ Compensation, nonetheless interrupted prescription because one

solidary obligor, Thiokol, was timely served with process. Plaintiffs also argue that

their amending petition adding the executive officers and their alleged insurers relates

back to the filing of the original petition under La.Code Civ.P. art. 1153.

In Richard v. Jefferson Davis Nursing Home, 02-527, p. 5 (La.App. 3 Cir.

10/30/02), 829 So.2d 1152, 1155 (quoting Lewing v. Sabine Parish Police Jury,

95-630, p. 3 (La.App. 3 Cir. 11/2/95), 664 So.2d 598, 599-600), we stated:

The burden of proof is normally on the party pleading
prescription. If on the face of the petition it appears that prescription
has run, the burden shifts to the plaintiff to prove a suspension or
interruption of the prescription. If the plaintiff’s basis for claiming

1
In that judgment, the Martzell Plaintiffs are identified as Joseph Davis, Danny Dupre,
Lawrence Galentine, and John Thibeaux, and the Edwards Plaintiffs are identified as Harold
Antoine, Lawrence Chennette, Roland Comeaux, Alvin Crosby, Sr., Joyce Gibson, Lester Johnson,
Brian Jones, Frank Laskowski, Charles Loston, Sherry Matthews, Ephram Mitchell, Laura Fay
Nicholas, and Joseph Prince.

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interruption of prescription is solidary liability between two or more
parties, then the plaintiff bears the burden of proving that solidary
relationship.

Where plaintiff’s allegations in the petition and amending petition
have not been controverted at a hearing on the exception of prescription,
the court must look to the petition to see whether plaintiff has carried the
burden of proof showing that prescription was interrupted on the basis
of solidary liability between the parties, and the test is whether the
alleged facts, if accepted as true, are sufficient on their face to establish
that the timely sued defendant and untimely sued defendants are
solidarily liable.

In granting the executive officers’ exception of prescription, the trial court

found that there can be no solidarity between the officers and the employer “because

there is no viable cause of action under Louisiana law for asbestos claims against an

employer such as Thiokol.” The trial court further stated: “The executive officers

cannot be solidarily liable with the employer for such claims since such claims do not

exist against an employer.” The trial court also found that, even if solidarity existed,

the suit was filed in a court of incompetent jurisdiction, and therefore, only

interrupted prescription against the Defendant served, the employer, under

La.Civ.Code art. 3462.

In granting this exception, the trial court relied heavily on its earlier dismissal

of Thiokol on the grounds that Plaintiffs failed to state a cause of action in tort. In

reversing that ruling, this court in Alexander, 887 So.2d at 689, recognized that, under

Austin v. Abney Mills, Inc., 01-1598 (La. 9/4/02), 824 So.2d 1137, “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.” (Emphasis added.)

In Austin, the supreme court held that the cause of action for a plaintiff who

suffers from a long-latency occupational disease accrues when the injury-producing

exposures “are significant and such exposures later result[ed] in the manifestation of

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damages . . . .” Id. at 1154 (quoting Cole v. Celotex, 599 So.2d 1058, 1066

(La.1992)). Austin also recognized that, once the employee acquires a right to sue in

tort for an occupational disease, he cannot later be divested of that right by

subsequent legislative expansion of coverage for occupational diseases. Accordingly,

a plaintiff may sue his employer in tort if his “significant tortious exposure” occurred

either before 1952, when the legislature introduced workers’ compensation coverage

for an exclusive listing of occupational diseases or poisoning from certain substances;

or before 1975, when the legislature replaced the listing of specific diseases and

substances with a general definition of an occupational disease, if the malady from

which he suffers was not included in that list.2 Finding that the Plaintiffs in

Alexander clearly alleged pre-1952 exposure to asbestos, we reversed the granting of

Thiokol’s exception of no cause of action and remanded for a factual determination

as to which Plaintiffs were employed and exposed prior to 1952, with instructions that

the trial court entertain arguments for those employed and exposed after 1952.

Because the dismissal of Plaintiffs’ initial suit in tort against Thiokol has been

reversed, that suit may still serve as an interruption of prescription against the

executive officers, provided they are solidarily liable with Thiokol. La.Civ.Code art.

2
As recognized by Justice Weimer in Powell v. Weaver, 01-2937, p. 5 (La. 2/7/03), 841 So.2d
742, 744:

[I]t must be noted that Austin does not represent the last word on the continued
viability of executive officer tort suits in Louisiana. At present there exists a conflict
in the courts of appeal as to whether asbestos is both an oxygen compound and a
metal compound so as to render asbestos-related disease a covered occupational
disease under the worker’s compensation law and the sole remedy of employees
suffering from such diseases. See and compare Brunet v. Avondale Industries, Inc.,
99-1354 (La.App. 5 Cir. 12/5/00), 772 So.2d 974, writ not considered, 01-0171
(La.3/23/01), 787 So.2d 1006, and Gautreaux v. Rheem Manufacturing Company,
96-2193 (La.App. 4 Cir. 12/27/96), 694 So.2d 977, writ denied, 97-0222
(La.3/14/97), 690 So.2d 39. The final word cannot be written on this chapter until
the conflict between Brunet and Gautreaux is resolved.

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3503. In their original and supplemental petition, Plaintiffs alleged that, as the result

of exposure to large quantities of asbestos and silica products from 1938 to 1990,

their damages included death, cancer, fear of cancer, and other physical ailments, as

well as an increased risk of contracting asbestos-related diseases. Allegations of

liability against Thiokol included failure to warn of the dangers of asbestos, failure

to provide safe protective equipment, and the placing of workers in danger with

knowledge that its premises were unreasonably dangerous. Allegations against the

executive officers included failure to provide proper supervision, a safe working

environment, including proper ventilation, protective devices, and periodic medical

examinations.

In holding that an employer responsible for workers’ compensation benefits is

solidarily liable with a third-party tortfeasor, the supreme court in Williams, 611

So.2d 1383, recognized that it is the coextensive obligation to repair certain elements

of the same damage, and not the source of liability, that determines solidarity. In so

doing, the supreme court expressly overruled several cases that “perpetuat[ed] the

idea, rejected in Hoefly [v. Government Employees Insurance Co., 418 So.2d 575

(La.1982)], that parties cannot be solidarily liable unless their liability is based on the

same cause of action, i.e., that obligations arising from tort and contract, or tort and

worker’s compensation, cannot be solidary.” Id. at 1389. Under this definition, we

find that solidarity does exist between Thiokol and the executive officers, even

though their individual liability may be based on the breach of different duties in tort

or on different causes of action, such as workers’ compensation and tort.

As in Alexander, we are unable to determine the dates of exposure and the

particular damages for each Plaintiff, which factors would determine whether their

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cause of action against Thiokol lies in tort or workers’ compensation. Although the

record contains correspondence indicating that Plaintiffs will have great difficulty

meeting the requirements of Austin, 824 So.2d 1137, as well as other jurisprudence

concerning occupational diseases, we cannot conclude that the evidence controverts

the allegations of their petition. Given that our prior opinion in Alexander

contemplates an evidentiary hearing on these very issues, we find that it would be

premature to rule on prescription at this time. We further decline to address the

arguments concerning the filing of suit in an incompetent jurisdiction, as such a

discussion would be advisory at this time.

Decree

For the above reasons, the judgment sustaining Defendants’ exception of

prescription is reversed, and the case is remanded for further proceedings consistent

with this opinion. Costs of this appeal are assessed to Defendants-Appellants.

REVERSED AND REMANDED.

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