Barbe v. American Sugar Refining, Inc.

83 So. 3d 75, 2011 La.App. 4 Cir. 0544, 2011 WL 6225186, 2011 La. App. LEXIS 1540
CourtLouisiana Court of Appeal
DecidedDecember 14, 2011
DocketNo. 2011-CA-0544
StatusPublished
Cited by7 cases

This text of 83 So. 3d 75 (Barbe v. American Sugar Refining, 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.

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Barbe v. American Sugar Refining, Inc., 83 So. 3d 75, 2011 La.App. 4 Cir. 0544, 2011 WL 6225186, 2011 La. App. LEXIS 1540 (La. Ct. App. 2011).

Opinion

MICHAEL E. KIRBY, Judge.

| ¶ Defendant, American Sugar Refining, Inc. (f/k/a Domino Sugar Corporation, f/k/a Tate & Lyle North American Sugars, Inc., f/k/a Amstar Corporation, f/k/a Amstar Sugar Corporation), appeals the trial court judgment in favor of plaintiffs, Leico Anthony Assevedo, John Hayward, Jack Oal-mann, Tommy Smith and Edgar Wood-ridge. For reasons that follow, we affirm.

Plaintiffs, all former long-time employees of the defendant, filed suit against the defendant for damages for hearing loss allegedly caused by long-term exposure to hazardous industrial noise at the defendant’s facility in Arabi, Louisiana. The length of time these plaintiffs worked for the defendant ranged from twenty (20) to thirty-eight (38) years. The plaintiffs in whose favor judgment was rendered represent the “first flight” of a larger group of plaintiffs with similar claims. Following a nine-day trial, the trial court found the defendant liable to each of the five plaintiffs, and awarded damages for hearing loss.

On appeal, the defendant has alleged five assignments of error:

(1) the district court committed legal error by charging Domino with the burden of disproving contra non \9valentem, and ruling that the plaintiffs’ claims are not prescribed,
(2) the district court’s conclusion that Domino is liable to the plaintiffs in negligence and strict liability cannot be reconciled with either the record evidence regarding breach of duty or causation, or the district court’s other findings of fact regarding prescription,
(8) the district court committed legal error by failing to apply any standard, much less the proper standard, to the plaintiffs’ strict liability claims,
(4) the district court committed legal error by holding that the plaintiffs’ claims for occupational hearing loss are not barred by the exclusivity provision of the Louisiana Worker’s Compensation Act, and
(5) the district court committed legal error by limiting the testimony of plaintiff Edgar Woodridge, and excluding testimony that is highly relevant to prescription and should have been admitted into evidence.

Taking the fourth assignment of error first, i.e. that plaintiffs’ claims for long-term occupational hearing loss are barred by the exclusivity provision of the Louisiana Worker’s Compensation Act (“LWCA”), we note that this Court addressed this same issue in its recent decision of Becker v. Murphy Oil Corp., 2010-1519 (La.App. 4 Cir. 6/2/11), 70 So.3d 885. As in the instant case, the Becker case also involved former employees suing their former employer for damages for hearing loss allegedly caused not by a single traumatic event, but by long-term occupational noise exposure. In ruling that the plaintiffs’ claims against their former employer were not barred by the exclusivity provision of the LWCA, the Becker court stated:

[78]*78[w]e conclude that gradual hearing loss resulting from occupational noise exposure over a period of many years simply cannot meet the definition of an ‘accident’ under |sany version of the LWCA. Likewise, the trial court did not err in finding that Mr. Barcia’s claims are not a basis for recovery under the LWCA as an occupational disease.

Subsequent to this Court’s rendition of the Becker opinion, Murphy Oil applied for writs with the Louisiana Supreme Court. On November 23, 2011, the Louisiana Supreme Court denied writs. Becker v. Murphy Oil Corporation, 2011-1750 (La.11/23/11), 76 So.3d 1154. Thus, the Becker decision of this Court is now final and definitive. La. C.C.P. Article 2166 E. Following the holding in Becker v. Murphy Oil Corporation, 2010-1519 (La.App. 4 Cir. 6/2/11), 70 So.3d 885, we hold that plaintiffs’ claims in the instant case of damages for hearing loss caused by long-term occupational noise exposure are not barred by the exclusivity provision of the LWCA. This assignment of error is without merit.

On the issue of prescription, the defendant first contends that the standard of appellate review should be de novo in this case, rather than the usual manifest error/clearly wrong standard. According to the defendant, the trial court committed legal error by charging it with the burden of disproving that the doctrine of contra non valentem applied in this case. Plaintiffs respond that the trial court correctly charged plaintiffs with the burden of proving the applicability of the contra non va-lentem doctrine, and therefore, the manifest error/clearly wrong standard of review applies.

The law regarding the burden of proof on the issue of prescription was summarized by this Court in Grant v. Tulane University, 2002-0848, p. 3 (La.App. 4 Cir. 4/23/03), 853 So.2d 651, 652-653, as follows:

|4A party generally must assert a del-ictual claim within one year from the date the injury or damage is sustained. La. C.C. art. 3492. Hoerner v. Wesley-Jensen, 95-0553, p. 3 (La.App. 4 Cir. 11/20/96), 684 So.2d 508, 510. When it is not obvious from the face of the petition that the claim is prescribed, the burden rests on the defendant or party pleading prescription. Stett v. Greve, 35,140, pp. 7-8 (La.App. 2 Cir. 2/27/02), 810 So.2d 1203, 1208. However, if the face of the petition shows that the prescriptive period has already elapsed, the plaintiff has the burden of establishing that suspension, interruption or renunciation of prescription has occurred. Lima v. Schmidt, 595 So.2d 624 (La.1992).
Under the judicially created doctrine of contra non valentem, prescription is suspended (1) when there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) when there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of this cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Landry v. Blaise, 2002-0822 (La.App. 4 Cir. 10/23/02), 829 So.2d 661, citing Corsey v. State of Louisiana, Through the Department of Corrections, 375 So.2d 1319, 1321-22 (La.1979).

In this case, the trial court found that the fourth prong of the contra non valentem doctrine applied, i.e. that the plaintiffs did not know or could not reasonably know of their cause of action against the defendant until less than one year [79]*79from the time each filed suit against the defendant. A reading of the reasons for judgment as a whole shows that the trial court properly charged the plaintiffs with the burden of proving that the doctrine of contra non valentem applied to suspend the running the prescription. The defendant has singled out one sentence in the reasons for judgment in support of its claim that the trial court improperly charged the defendant with the burden of disproving the applicability of contra non | ¿valentem. The sentence in question is: “Defendants seek to show the Plaintiffs had constructive knowledge of their hearing loss and its cause.”

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83 So. 3d 75, 2011 La.App. 4 Cir. 0544, 2011 WL 6225186, 2011 La. App. LEXIS 1540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barbe-v-american-sugar-refining-inc-lactapp-2011.