Alberes v. Anco Insulations, Inc.

156 So. 3d 795, 2014 La. App. Unpub. LEXIS 706, 2013 La.App. 4 Cir. 1549, 2014 La. App. LEXIS 3161, 2014 WL 6982477
CourtLouisiana Court of Appeal
DecidedDecember 10, 2014
DocketNo. 2013-CA-1549
StatusPublished
Cited by2 cases

This text of 156 So. 3d 795 (Alberes v. Anco Insulations, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alberes v. Anco Insulations, Inc., 156 So. 3d 795, 2014 La. App. Unpub. LEXIS 706, 2013 La.App. 4 Cir. 1549, 2014 La. App. LEXIS 3161, 2014 WL 6982477 (La. Ct. App. 2014).

Opinion

TERRI F. LOVE, Judge.

1,Edward A. Alberes (“Mr. Alberes”) and his wife, Anna A. Alberes (collectively “appellants”) sought to recover damages as a result of Mr. Alberes’ contraction of asbestosis and other damaging effects to his health from his exposure to asbestos while working at B.F. Goodrich Corporation (“Goodrich”). Goodrich filed a motion for summary judgment based on the appellants’ failure to demonstrate that Mr. Al-beres’ exposure to asbestos at Goodrich’s facility was a substantial contributing factor to the onset of his asbestosis. The trial court granted Goodrich’s motion for summary judgment. On appellate review, we find that because there is a genuine issue of material fact as to whether Mr. Alberes’ exposure to asbestos at Goodrich was a substantial contributing factor to his development of asbestosis the trial court committed reversible error. Accordingly, we reverse the trial court’s granting of the motion for summary judgment.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

In October 2008, the appellants filed suit for damages as a result of Mr. Alberes’ contraction of asbestosis. From approximately 1953 through 2006, Mr. |2AIberes was employed in various positions, including as a pipefitter and insulator, at the work sites of several employers. In the late 1970’s or early 1980’s, Mr. Alberes worked a turnaround job for five days as a pipefitter helper at Goodrich’s facility in Plaquemine, Louisiana. Mr. Alberes testified that he was responsible for installing [797]*797and removing Garlock1 gaskets containing asbestos. He further testified that most of the gaskets were old and had been there for quite some time. He testified that when removing the gaskets it often required him to scrape the gasket material with a wire brush or blow the remnants out with an air hose. Mr. Alberes testified that he was aware the Garlock gaskets contained asbestos because when he passed his hand over it he could see the fibers. He stated that the fibers were “kind of brownish white looking, black ... [and] when you move them, they kind of sparkle.”

Additionally, Mr. Alberes testified that when he worked at Goodrich he worked in close proximity to insulators. He noted the insulators were present the entire time he was employed at Goodrich, removing old insulation and installing new insulation. Mr. Alberes testified that not only did he work in the area with insulators, but he was also responsible for cleaning up the insulation at the end of each day. Mr. Alberes stated that there was always a Goodrich supervisor or superintendent overseeing their work, but at no time was he advised to wear or provided respiratory protection.

|sThe appellants also submitted the deposition of Frank Parker, III (“Mr. Parker”), an expert industrial hygienist. Mr. Parker testified that Mr. Alberes’ handling, removing, and installing asbestos-contained gaskets would expose him to concentrations of asbestos above “contemporary occupational limits.” These exposures, Mr. Parker testified, would have been a significant contributing factor in his risk for development of asbestosis. Dr. Judd Shellito (“Dr. Shellito”) also testified that any and all exposures to asbestos would have been a significant contributing factor in Mr. Alberes’ contraction of asbestosis and asbestos-related pleural plaques. Further, Dr. Robert Jones (“Dr. Jones”), Goodrich’s expert, testified that all exposures are cumulative, and all exposures contribute to the ultimate disease.

The appellants filed suit seeking damages allegedly resulting from his exposure to asbestos and asbestos-containing products while Mr. Alberes was employed at various work sites. Specific to this matter, the appellants contend that during Mr. Alberes’ time at Goodrich’s facility, his exposure to asbestos was a significant contributing factor to the onset of his asbestosis.

Goodrich filed a motion for summary judgment asserting that the substantive law requires the appellants to provide evidence of frequent and regular exposure to asbestos fibers at Goodrich and that the exposure was a substantial factor in the development of his asbestos-related injuries. Goodrich contends that the appellants are unable to meet its burden of proving causation. Goodrich points to the fact that Mr. Alberes’ exposure at its Plaquemine facility was only for five days on a | ¿turnaround job and inconsequential in the scope of a life-long career employed as a laborer, pipefitter helper, and crane operator. Mr. Alberes’ exposure at its facility, Goodrich argues, does not meet the threshold substantial contributing factor test, particularly in light of his exposure at other work sites during his career. For those reasons, the trial court granted Goodrich’s motion for summary judgment. The appellants’ timely appeal follows.

STANDARD OF REVIEW

On appellate review this Court reviews summary judgments de novo using [798]*798the same criteria that governs the trial court’s consideration. Thibodeaux v. Asbestos Corp., 07-0617, p. 4 (La.App. 4 Cir. 2/20/08), 976 So.2d 859, 862. Therefore, “a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Id. See La. C.C.P. art. 966(B). It is well-settled law that “[s]ummary judgments are favored and factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponents favor.” Id. See also Willis v. Medders, 00-2507, p. 2 (La.12/08/00), 775 So.2d 1049, 1050. Further, this Court has previously stated:

The trial court cannot make credibility determinations on a motion for summary judgment. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 16 (La.02/29/00), 755 So.2d 226, 286. It is not the function of the district court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Additionally, the weighing of conflicting evidence has no- place in summary judgment procedure. See also Knowles v. McCright’s Pharmacy, Inc., 34,559, p. 3 (La.App. 2 Cir. 4/4/01), 785 So.2d 101, 103.

Thibodeaux, 07-0617, p. 4, 976 So.2d at 862.

Moreover, in Lucas v. Hopeman Bros., Inc., 10-1037, p. 6-7 (La.App. 4 Cir. 2/16/11), 60 So.3d 690, 696, this Court noted:

A fact is material if it is essential to the plaintiff’s cause of action under the applicable theory of recovery and, without the establishment of the fact by a preponderance of the evidence, the plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute.

(citing Danos v. Avondale Indus., Inc., 07-1094, p. 3 (La.App. 4 Cir. 7/2/08), 989 So.2d 160, 162). Therefore, in order to determine whether the trial court committed reversible error, we must first determine whether a genuine issue of material fact remains as to Goodrich’s liability.

MOTION FOR SUMMARY JUDGEMENT

In this case, the appellants aver the trial court erred by granting Goodrich’s motion for summary judgment. The appellants contend that they have offered evidence proving that a genuine issue of material fact exists as to whether Mr.

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156 So. 3d 795, 2014 La. App. Unpub. LEXIS 706, 2013 La.App. 4 Cir. 1549, 2014 La. App. LEXIS 3161, 2014 WL 6982477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alberes-v-anco-insulations-inc-lactapp-2014.