Larry Curtis v. Branton Industries, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-675 consolidated with 06-676

LARRY CURTIS, ET AL.

VERSUS

BRANTON INDUSTRIES, INC., ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 174,247
HONORABLE GEORGE CLARENCE METOYER JR., DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Michael G. Sullivan, Elizabeth A. Pickett, and Billy Howard
Ezell, Judges.

REVERSED AND REMANDED.

Scott R. Bickford
Martzell & Bickford
338 Lafayette St.
New Orleans, LA 70130
(504) 581-9065
Counsel for Plaintiffs-Appellants:
Larry Curtis
Michael Jackson
Edman Landry
Billy Kees

William Lee Brockman
Attorney at Law
P. O. Box 55490
Metairie, LA 70055
(504) 834-2612
Counsel for Defendant-Appellee:
Andritz Inc.

David Ross Frohn
Frohn & Thibodeaux
P.O. Box 2090
Lake Charles, LA 70602-2090
(337) 433-5523
Counsel for Defendant-Appellee:
Chicago Bridge & Iron

Glenn Lyle Maximilian Swetman
Aultman, Tyner, Ruffin, Ltd.
400 Poydras St., Suite 1900
New Orleans, LA 70130
(504) 528-9616
Counsel for Defendant-Appellee:
Andritz Inc.

Jeffrey Matthew Burg
Attorney at Law
338 Lafayette Street
New Orleans, LA 70130
(504) 581-9065
Counsel for Plaintiffs-Appellants:
Michael Jackson
Billy Kees
Edman Landry
Larry Curtis

John W. Martinez
Attorney at Law
755 Magazine St.
New Orleans, LA 70130
(504) 581-9065
Counsel for Defendant- Appellee:
Zurn Industries

PICKETT, Judge.

The plaintiffs in these consolidated cases appeal the judgment of the trial court

granting the motions for summary judgment of Andritz Inc., Zurn Industries, Inc., and

Chicago Bridge & Iron Co., and dismissing the claims of the plaintiffs against the

defendants.

STATEMENT OF THE CASE

On October 21, 1993, eight plaintiffs who were employees of a paper mill in

Pineville, Louisiana, filed suit against twelve defendants alleging exposure to

asbestos during their employment from 1968 to the present. The paper mill was

originally owned and operated by Bodcaw until 1980, when International Paper

became the owner. The defendants were suppliers of material which contained

asbestos and/or contractors who constructed immovables which contained asbestos.

On December 14, 2000, the plaintiffs amended their petition to add several

defendants, including Andritz Inc. (Andritz), Zurn Industries, Inc. (Zurn), and

Chicago Bridge & Iron Co. (Chicago Bridge). Andritz was sued as the successor in

interest of Kamyr, Inc. Kamyr, Inc. allegedly produced, manufactured, and sold

digesters containing asbestos to Bodcaw or International Paper for use in the Pineville

mill. Zurn was sued as successor in interest to Erie City Iron Works (Erie). Erie

allegedly produced, manufactured, and sold boilers containing asbestos to Bodcaw

or International Paper for use in the Pineville mill. Chicago Bridge allegedly

produced, manufactured, and sold various tanks containing asbestos to Bodcaw or

International Paper for use in the Pineville mill. Several of the plaintiffs and

defendants in the original petition have withdrawn or been dismissed from the case.

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At the time the motions at issue in this appeal were heard, only four of the original

plaintiffs remained: Larry Curtis, Michael Jackson, Billy Kees, and Edman Landry.

In the companion case, Claude Willis and his wife Bessie Willis filed suit

against many of the same companies on December 14, 2000, alleging Mr. Willis was

exposed to asbestos while working for an insulation contractor at the Pineville paper

mill. Andritz, Zurn, and Chicago Bridge were among the defendants named in this

suit.

The trial court held a hearing on November 21, 2005, to consider Motions for

Summary Judgment and Exceptions of No Right of Action filed by Andritz, Zurn, and

Chicago Bridge. All of these motions argued that the claims of the plaintiffs in both

suits were barred by peremption pursuant to La.R.S. 9:2772. Chicago Bridge also

argued that the claims of the plaintiffs were barred pursuant to La.R.S. 9:2771. The

trial court consolidated the cases for the purpose of hearing these motions and

exceptions. Following a hearing, the trial court ruled in open court that the claims of

the plaintiffs were barred by peremption pursuant to La.R.S. 9:2772 and the claims

against Chicago Bridge were barred pursuant to La.R.S. 9:2771. Judgments in

conformity with this ruling was signed by the trial court on December 8, 2005. The

plaintiffs now appeal. These appeals have been consolidated for the purpose of

argument only pursuant to a motion by the plaintiffs’ counsel, as all relevant facts and

issues of law are identical.

ASSIGNMENTS OF ERROR

The plaintiffs assert two assignments of error:

1. The District Court erroneously granted Defendants’ motion for summary
judgment by relying on the current version of La.R.S. 9:2771 and 9:2772
which were not applicable at the time of the Plaintiffs’ tortious exposure

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to asbestos because Plaintiffs’ tortious exposure to asbestos occurred
prior to 1990.

2. The District Court erroneously found no right of action for the suit
finding Plaintiffs’ claims were precluded by the peremption provisions
contained in the current version of La.R.S. 9:2771 and 9:2772.

DISCUSSION

At the outset, we note that the defendants filed motions for summary judgment

and exceptions of no right of action and no cause of action which all alleged the same

set of facts and were predicated on the same law. While the exception of no cause of

action is inapplicable considering the court received evidence, either a summary

judgment or a no right of action is an appropriate means for disposing of a peremption

issue. See Ewing v. State ex rel. Department of Transportation and Development,

99-1556 (La.App. 3 Cir. 3/15/00), 757 So.2d 843, in which this court reviewed a

peremption claim pursuant to La.R.S. 9:2772 using the standard for summary

judgment. In order to avoid duplication, we will proceed by analyzing the cases using

the standard of review applicable to a motion for summary judgment.

Appellate courts review summary judgments de novo under the same criteria

that govern the trial court’s consideration of whether a summary judgment is

appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342

(La.1991). The mover is entitled to judgment if the pleadings, depositions, answers

to interrogatories and admissions on file, together with supporting affidavits, if any,

show there is no genuine issue of material fact and the mover is entitled to judgment

as a matter of law. La.Code Civ.P. art. 966(B).

The predecessor to Andritz, Kamyr, Inc., provided two digesters for use at the

Pineville paper mill. Kamyr was involved in the design and supervised the

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construction of the digesters and associated structures. There is no dispute that these

structures are immovable property. They were completed in 1968.

The predecessor to Zurn, Erie City Iron Works, designed and erected a two-

drum boiler for use at the Pineville paper mill. There is no dispute that the boiler is

an immovable structure. The project was completed in 1967.

Chicago Bridge built several tanks at the Pineville paper mill. These structures

were built between 1966 and 1974. There is no dispute that these structures are

immovable property.

All of the structures provided by Kamyr, Erie City Iron Works, and Chicago

Bridge contained some asbestos. The plaintiffs allege that they were exposed to

asbestos while working at the Pineville paper mill and suffered serious injuries as a

result of that exposure.

The defendants claim that La.R.S. 9:2772 is applicable in this case. This

statute provides a peremption period for claims against a designer, supervisor, or

constructor of immovables or improvements to immovables. While recent legislation

has reduced the peremption period, the statute provided for a ten-year peremption

period at the time of the alleged injuries. The statute, before being amended in 1990,

stated:

A. No action, whether ex contractu, ex delicto, or otherwise, to
recover on a contract or to recover damages shall be brought against any
person performing or furnishing land surveying services, as such term
is defined in the first paragraph of R.S. 37:682(9), including but not
limited to those services preparatory to construction, or against any
person performing or furnishing the design, planning, supervision,
inspection, or observation of construction or the construction of an
improvement to immovable property:

(1) More than ten years after the date of registry in
the mortgage office of acceptance of the work by owner; or

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(2) If no such acceptance is recorded within six
months from the date the owner has occupied or taken
possession of the improvement, in whole or in part, more
than ten years after the improvement has been thus
occupied by the owner; or

(3) If the person performing or furnishing the land
surveying services, as such term is defined in the first
paragraph of R.S. 37:682(9), does not render the services
preparatory to construction, or if the person furnishing such
services or the design and planning preparatory to
construction, does not perform any inspection of the work,
more than ten years after he has completed the surveying or
the design and planning with regard to actions against that
person.

B. The causes which are perempted within the time described
above include any action:

(1) For any deficiency in the performing or
furnishing of land surveying services, as such term is
defined in the first paragraph of R.S. 37:682(9), including
but not limited to those preparatory to construction or in
the design, planning, inspection or observation of
construction, or in the construction of any improvement to
immovable property;

(2) For damage to property, movable or immovable,
arising out of any such deficiency;

(3) For injury to the person or for wrongful death
arising out of any such deficiency; and

(4) Any action brought against a person for the
action or failure to act of his employees.

This peremptive period shall extend to every demand whether brought
by direct action or for contribution or indemnity or by third party
practice, and whether brought by the owner or by any other person.

C. If such an injury to the property or to the person or if such a
wrongful death occurs during the ninth year after the date set forth in
Sub-section A, an action to recover the damages thereby suffered may
be brought within one year after the date of the injury, but in no event
more than eleven years after the date set forth in Sub-section A (even if
the wrongful death results thereafter).

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D. Actions for the causes enumerated in Sub-section B of this
Section, against the persons enumerated in Sub-section A of this
Section, shall prescribe by the applicable prescriptive periods
established by law for such actions.

E. The peremptive period provided by this Section shall not be
asserted by way of defense by a person in possession or control, as
owner, lessor, tenant, or otherwise, of such an improvement at the time
any deficiency in such an improvement constitutes the proximate cause
of the injury, damage, or death sued upon with regard to any cause of
action arising out of the alleged delict, quasi delict, or obligation of any
such person arising out of his possession or control of the property.

F. Nothing in this Section shall be construed as modifying the
liability or responsibility otherwise imposed by law on the owner of an
immovable or the possessor, lessor or lessee of an immovable, by reason
of the design, planning, supervision, inspection or observation of
construction, or construction of improvements to immovable property.

G. Causes of action arising from the performing or furnishing of
land surveying services, as such term is defined in the first paragraph of
R.S. 37:682(9), if not performed preparatory to construction, which exist
prior to the effective date of the 1981 Regular Session Amendment to
this Section, shall be perempted one year from said date or by the
applicable peremptive period established by this Section, whichever is
later.

H. (1) The peremptive period provided by this Section shall not
apply to an action to recover on a contract or to recover damages against
any person enumerated in Subsection A of this Section, whose fraud has
caused the breach of contract or damages sued upon. The provisions of
this Subsection shall be retroactive.

(2) In any such action in which fraud is alleged, that issue shall be
decided by trial separate from and prior to the trial of any or all other
issues.

In 1990, the supreme court issued an opinion which held that the peremption

period provided for in La.R.S. 9:2772 did not apply when a contractor acquires

knowledge of a dangerous defect and fails to warn the owner. Bunge Corp. v. GATX,

Corp., 557 So.2d 1376 (La.1990). The court reasoned that a claim “which charges

defendant with knowledge and failure to warn plaintiff of a hazardous condition in

the construction asserts a claim based in fraud.” Id. at 1388. This opinion was

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released in March 1990. The legislature acted quickly to amend the statute, and the

act was signed by the governor in July 1990. 1990 La. Acts No.712, § 1. The

amended statue read as follows (changes in bold):

A. No action, whether ex contractu, ex delicto, or otherwise,
including, but not limited to, an action for failure to warn, to recover
on a contract or to recover damages shall be brought against any person
performing or furnishing land surveying services, as such term is
defined in the first paragraph of R.S. 37:682(9), including but not
limited to those services preparatory to construction, or against any
person performing or furnishing the design, planning, supervision,
inspection, or observation of construction or the construction of an
improvement to immovable property:

(1) More than ten years after the date of registry in
the mortgage office of acceptance of the work by owner; or

(2) If no such acceptance is recorded within six
months from the date the owner has occupied or taken
possession of the improvement, in whole or in part, more
than ten years after the improvement has been thus
occupied by the owner; or

(3) If the person performing or furnishing the land
surveying services, as such term is defined in the first
paragraph of R.S. 37:682(9), does not render the services
preparatory to construction, or if the person furnishing such
services or the design and planning preparatory to
construction, does not perform any inspection of the work,
more than ten years after he has completed the surveying or
the design and planning with regard to actions against that
person.

B. The causes which are perempted within the time described
above include any action:

(1) For any deficiency in the performing or
furnishing of land surveying services, as such term is
defined in the first paragraph of R.S. 37:682(9), including
but not limited to those preparatory to construction or in
the design, planning, inspection or observation of
construction, or in the construction of any improvement to
immovable property;

(2) For damage to property, movable or immovable,
arising out of any such deficiency;

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(3) For injury to the person or for wrongful death
arising out of any such deficiency; and

(4) Any action brought against a person for the
action or failure to act of his employees.

(5) Deficiency, as used in this Section, includes
failure to warn the owner of any dangerous or
hazardous condition, regardless of when knowledge of
the danger or hazard is obtained or should have been
obtained.

This peremptive period shall extend to every demand whether brought
by direct action or for contribution or indemnity or by third party
practice, and whether brought by the owner or by any other person.

C. If such an injury to the property or to the person or if such a
wrongful death occurs during the ninth year after the date set forth in
Sub-section A, an action to recover the damages thereby suffered may
be brought within one year after the date of the injury, but in no event
more than eleven years after the date set forth in Sub-section A (even if
the wrongful death results thereafter).

D. Actions for the causes enumerated in Sub-section B of this
Section, against the persons enumerated in Sub-section A of this
Section, shall prescribe by the applicable prescriptive periods
established by law for such actions.

E. The peremptive period provided by this Section shall not be
asserted by way of defense by a person in possession or control, as
owner, lessor, tenant, or otherwise, of such an improvement at the time
any deficiency in such an improvement constitutes the proximate cause
of the injury, damage, or death sued upon with regard to any cause of
action arising out of the alleged delict, quasi delict, or obligation of any
such person arising out of his possession or control of the property.

F. Nothing in this Section shall be construed as modifying the
liability or responsibility otherwise imposed by law on the owner of an
immovable or the possessor, lessor or lessee of an immovable, by reason
of the design, planning, supervision, inspection or observation of
construction, or construction of improvements to immovable property.

G. Causes of action arising from the performing or furnishing of
land surveying services, as such term is defined in the first paragraph of
R.S. 37:682(9), if not performed preparatory to construction, which exist
prior to the effective date of the 1981 Regular Session Amendment to
this Section, shall be perempted one year from said date or by the
applicable peremptive period established by this Section, whichever is

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later.

H. (1) The peremptive period provided by this Section shall not
apply to an action to recover on a contract or to recover damages against
any person enumerated in Subsection A of this Section, whose fraud has
caused the breach of contract or damages sued upon. The provisions of
this Subsection shall be retroactive.

(2) In any such action in which fraud is alleged, that issue shall be
decided by trial separate from and prior to the trial of any or all other
issues.

(3) Fraud, as used in this Section, shall have the same meaning
as provided in Civil Code Article 1953.

I. Nothing in this Section shall be construed as limiting or
modifying the non-liability of contractors for destruction or
deterioration of, or defects in, any work, as provided in R.S. 9:2771.

The defendants argue that the changes made by the legislature were intended

to correct the supreme court’s erroneous interpretation. Since the amendments were

interpretive, the defendants argue that they should be retroactive. The plaintiffs argue

that the amendments changed the law and should only be applied prospectively.

This court discussed the proper method for determining whether a statute is

given retroactive or prospective effect in Crooks v. Metropolitan Life Insurance Co.,

00-947, pp. 5-7 (La.App. 3 Cir. 1/17/01), 779 So.2d 966, 970-71, judgment vacated

on other grounds, 01-466 (La. 5/25/01), 785 So.2d 810 (second alteration in

original.):

La.Civ.Code art. 6 requires that we conduct a two-fold inquiry.
First, we must determine whether the amendment to the article expresses
legislative intent regarding retrospective or prospective application.
Keith v. U.S. Fidelity & Guar. Co., 96-2075 (La.5/9/97); 694 So.2d 180.
If no such intent is expressed, the enactment must be classified as either
substantive, procedural or interpretive. Id. Thus, even where the
legislature has expressed its intent to give a law retroactive effect, the
law may not be applied retroactively if doing so would impair
contractual obligations or disturb vested rights. If it does so, then in
spite of legislative pronouncements to the contrary, the law is
substantive, rather than procedural or interpretive.

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The Louisiana Supreme Court has defined substantive law as a
law which creates, confers, defines, destroys, or otherwise regulates
rights, liabilities, causes of action, or legal duties. Sudwischer v. Estate
of Paul C. Hoffpauir, 97-0785 (La.12/12/97); 705 So.2d 724, cert.
denied, 524 U.S. 940, 118 S.Ct. 2347, 141 L.Ed.2d 717 (1998).
Louisiana courts have distinguished between substantive, procedural,
and interpretive laws as follows:

Substantive laws establish new rules, rights, and duties or
change existing ones. Procedural laws prescribe a method
for enforcing a substantive right and relate to the form of
the proceeding or the operation of the laws. Interpretive
laws merely establish the meaning the interpreted statute
had from the time of its enactment.

Willis v. Gray Sales & Service, Inc., 96-748, p. 4 (La.App. 3 Cir.
1/22/97); 689 So.2d 522 [writ denied,] 97-0525 (La.4/18/97); 692 So.2d
450 (quoting Segura v. Frank, 93-1271, 93-1401 (La.1/14/94); 630
So.2d 714, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d
887 (1994)). When an existing law is not clear, a subsequent statute
clarifying or explaining the law may be regarded as interpretive, and the
interpretive statute may be given retrospective effect because it does not
change, but merely clarifies, pre-existing law. Gulf Oil Corp. v. State
Mineral Bd., 317 So.2d 576 (La.1974). True interpretive law changes
existing standards by redefining and returning laws to their original
meaning, thus providing the legislature with the opportunity to
pronounce the correct interpretation to be given to existing laws. Adams
v. City of Baton Rouge, 95-2515 (La.App. 1 Cir. 4/30/96); 673 So.2d
624, writ denied, 96-1491 (La.9/20/96); 679 So.2d 439. Planiol
explains the exception for interpretive laws as follows: “[i]nterpretive
laws do not establish new rules. What they do is to determine the
meaning of existing laws. It follows that they may apply to facts
previous to their promulgation. Their retroactivity is but apparent,
because it is not the interpretive law, but the original law, which
applies.” 1 M. Planiol, Civil Law Treatise Nos. 249-252
(La.St.L.Inst.Transl.1959) (quoted in St. Paul Fire & Marine Ins. Co. v.
Smith, 609 So.2d 809 (La.1992)).

We find that the amendments to La.R.S. 9:2772 passed by the legislature in the

1990 Act are substantive. The purpose of the 1990 Act was to destroy a right that the

supreme court found existed in Bunge Corp., 557 So.2d 1376. We find, therefore,

that the 1990 amendments are to be given prospective effect only. Thus, the plaintiffs

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may proceed against the defendants insofar as they allege a failure to warn of the

dangers of asbestos.

Furthermore, even if we were to find that the amendments were interpretive,

we could not give them retroactive effect. In Unwired Telecom Corp. v. Parish of

Calcasieu, 03-732 (La. 1/19/05), 903 So.2d 392, the supreme court explained that

even when a legislature clearly expresses its intention that a law is interpretive and

is to be given retroactive effect, the law will be given prospective effect only if the

change impermissibly impedes on the judiciary’s constitutional function of

interpreting laws. In Unwired Telecom, the legislature amended a statute for the

purpose of explaining the original intent of a statute in an effort to change an

appellate court decision. The legislature clearly stated in the act that the amendments

were to be give retroactive effect. The supreme court found that the amendments

could be given prospective effect only because the legislature had infringed on the

function of the judiciary of statutory construction and interpretation. This reasoning

is applicable in the case before us, even without a specific declaration in the 1990 Act

that the amendments are to be applied retroactively.

Finally, Chicago Bridge’s motion for summary judgment included an argument

that any claims against it were barred by La.R.S. 9:2771, which states (an amendment

added in 2001 has been deleted):

No contractor shall be liable for destruction or deterioration of or
defects in any work constructed, or under construction, by him if he
constructed, or is constructing, the work according to plans or
specifications furnished to him which he did not make or cause to be
made and if the destruction, deterioration, or defect was due to any fault
or insufficiency of the plans or specifications. This provision shall
apply regardless of whether the destruction, deterioration, or defect
occurs or becomes evident prior to or after delivery of the work to the
owner or prior to or after acceptance of the work by the owner. The

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provisions of this Section shall not be subject to waiver by the
contractor.

Chicago Bridge argues that all of the structures it constructed were built according

to specifications provided to it by International Paper or Rust Engineering. The

plaintiffs allege that Chicago Bridge prepared blueprints for the structures and held

them out as their own design. The evidence presented below is not conclusive and

creates a genuine issue of material fact. Thus, summary judgment is improper.

CONCLUSION

The judgment of the trial court is reversed, and the case is remanded for further

proceedings. Costs of this appeal are assessed to the defendants, Andritz, Zurn, and

Chicago Bridge.

REVERSED AND REMANDED.

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