Atkinson v. Celotex Corp.

633 So. 2d 383, 1994 WL 65275
CourtLouisiana Court of Appeal
DecidedMarch 2, 1994
Docket93-924, 93-925
StatusPublished
Cited by4 cases

This text of 633 So. 2d 383 (Atkinson v. Celotex Corp.) 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
Atkinson v. Celotex Corp., 633 So. 2d 383, 1994 WL 65275 (La. Ct. App. 1994).

Opinion

633 So.2d 383 (1994)

John C. ATKINSON, et al., Plaintiffs/Appellants,
v.
CELOTEX CORPORATION, et al., Defendants/Appellees.
Albert ARMISTEAD, et al., Plaintiffs/Appellants,
v.
CELOTEX CORPORATION, et al., Defendants/Appellees.

Nos. 93-924, 93-925.

Court of Appeal of Louisiana, Third Circuit.

March 2, 1994.
Rehearing Denied April 7, 1994.

*385 William Boyce Baggett Jr., William B. Baggett, Wells Talbot Watson, for Albert Armistead, et al., and John Calvin Atkinson, et al.

Lawrence Goode Pugh III, for Celotex Corp., et al.

Robert Ellis Guillory Jr., William T. McCall, Gregory Joseph Spicer, for INA.

Richard L. Forman, John D. Cosmich, John R. Santa Cruz, Scott Leray, for Owens-Illinois.

Dermot S. McGlinchey, James Michael Garner, for Ins. Corp. as Insurer of Keene Corp.

Russell D. Holwadel, for Manville Personal Injury Settlement Trust.

J. Michael Johnson, Larry Gene Canada, for Combustion Engineering.

Edwin A. Ellinghausen III, David L. Tolin, for Fibreboard Corporation.

Louis G. Lemle for Owens-Corning Fiberglass Corp.

James L. Pate, Ben Louis Mayeaux, for M.H. Detrick Co.

*386 Kenneth R. Spears, for Oxy Oil & Gas USA.

Stephen Porter Hall, Richard Nelson Dicharry, for Ernest Alfred Moore, etc.

Maria Isabel O'Byrne Stephenson, Lisa Carol Matthews, for Rock Wool Mfg. Co.

Thomas M. Bergstedt, for Keene Corp.

Robert Emmett Kerrigan Jr., Arthur Wendel Stout III, Janet Leslie MacDonell, Gary Barkley Roth, for GAF Corp.

Vance Edward Ellefson, Anthony John Staines, for Eagle-Pitcher Industries.

Daniel James Caruso, Elizabeth Reidy Leach, for Commercial Union Ins. Co.

Before WOODARD and DECUIR, JJ., and BERTRAND[*], J. Pro Tem.

LUCIEN C. BERTRAND, Jr., Judge Pro Tem.

These consolidated suits were brought by 12 men who were allegedly exposed to asbestos-containing materials while employed at the Cities Service Refinery in Calcasieu Parish. Several of their wives brought loss of consortium claims, and the wives and/or children of five of the men who died before trial were substituted as parties plaintiff and wrongful death and survival claims were added. Named as defendants in both suits were various manufacturers of asbestos-containing products used at Cities Service and the insurers of certain executive officers employed by Cities Service at the time of the alleged exposure to asbestos dust. The years of alleged exposure for each claimant took place between 1945, the year the plant was constructed, and 1976, the year the Louisiana legislature amended La.R.S. 23:1032 of the Louisiana Workers' Compensation Law to eliminate negligence suits against executive officers of corporate employers. For purposes of liability against the manufacturers, the years of exposure continued beyond 1976 to each man's retirement date.

By the time of trial, most of the defendants had settled or were dismissed. The only defendants which participated at the trial of these consolidated cases were Owens-Illinois, Inc., and Keene Corporation, both manufacturers of asbestos-containing products, and Insurance Company of North America, the primary insurer of the Cities Service executive officers. Issues of liability, causation, and damages were tried before a jury and judgments were rendered in favor of the 12 men. All of the loss of consortium claims were denied, as were the wrongful death claims asserted by the families of Clodile Romero, Joseph Comeaux, and Richard Watson.

The awards, consisting solely of general damages, were as follows:

Morris Thomas              $250,000.00
John Calvin Atkinson        100,000.00
Berry Naff                  100,000.00
Joseph Comeaux               40,000.00
Clodile Romero               40,000.00
Richard Watson               40,000.00
Russell Trahan               30,000.00
Albert Armistead             20,000.00
Verbia Long                  20,000.00
Joseph Manuel                20,000.00
Lawrence Mouton              20,000.00
Earl Myers                   20,000.00

Messrs. Thomas, Atkinson, and Naff have not appealed. However, the remaining nine men or their representatives have appealed, contesting the number of peremptory challenges granted to the plaintiffs' side of the litigation, and contending their damage awards were inadequate. One plaintiff, Faye Myers, appeals the denial of her loss of consortium claim. The defendants have neither appealed nor answered the appeal. For the reasons which follow, we find no manifest error in the judgment rendered below and affirm.

BACKGROUND

The 12 men who have brought suit herein were employed in the maintenance department of Cities Service. Some were general laborers, but others were employed specifically as insulators, carpenters, pipe fitters, and the like. Each man alleged that he was regularly exposed to asbestos dust and asbestos-containing materials in the course of *387 his employment, regardless of his craft or position.

Prior to trial, the trial court granted a partial summary judgment in favor of the plaintiffs, finding that asbestos-containing products are unreasonably dangerous. The plaintiffs still had to prove, however, that they were exposed to asbestos and that they were damaged by that exposure. With regard to the fault of the manufacturers, the jury interrogatories questioned whether each plaintiff's injury was "substantially contributed to by exposure to" each manufacturer's product. With regard to the fault of the executive officers, the jury interrogatories questioned whether they "were negligent in the performance of a delegated duty which was a cause of injury or damage" to each plaintiff. Of the 14 manufacturers, the jury exonerated five with regard to two plaintiffs and three with regard to 10 plaintiffs. Of the 16 executive officers, three were found to be without negligence. These factual findings were not contested and are not before us in this appeal.

ISSUE 1: PEREMPTORY CHALLENGES

The first issue raised by the plaintiffs concerns the number of peremptory challenges allocated to each side involved in this litigation. The trial court determined that the controversy was three-sided. The judge decided that the interests of the executive officers, represented by their insurer, INA, were separate and distinct from the manufacturers, Owens-Illinois and Keene Corporation. Accordingly, the trial judge gave the plaintiffs as a group six challenges, the defendant-manufacturers, as a group, six challenges, and the defendant-insurer, six challenges. Subsequently, and upon further argument, the trial judge granted four additional challenges to the plaintiffs for a total of ten challenges to the plaintiffs' side of the controversy and six challenges to each of the two defense sides of the controversy.

In Smith v. State Farm Insurance Co., 446 So.2d 1269 (La.App. 4th Cir.), writs denied, 449 So.2d 1356, 449 So.2d 1360 (La.1984), the Fourth Circuit discussed the proper method for determining the number of sides in a case:

If there are incidental demands such as third party claims among co-defendants which place the defendants in truly adverse postures, the lawsuit may have more than two sides. In that case each side would receive the same number of challenges depending on the number of parties on a side and the court's decision.

446 So.2d at 1272. See also, Dean v. Nunez, 534 So.2d 1282 (La.App.

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633 So. 2d 383, 1994 WL 65275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkinson-v-celotex-corp-lactapp-1994.