Ewing v. Armstrong World Industries, Inc.

846 So. 2d 813, 2003 WL 355627
CourtLouisiana Court of Appeal
DecidedFebruary 19, 2003
Docket02-918
StatusPublished
Cited by3 cases

This text of 846 So. 2d 813 (Ewing v. Armstrong World Industries, 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
Ewing v. Armstrong World Industries, Inc., 846 So. 2d 813, 2003 WL 355627 (La. Ct. App. 2003).

Opinion

846 So.2d 813 (2003)

Murphy J. EWING and Gwendolyn T. Ewing, et al.
v.
ARMSTRONG WORLD INDUSTRIES, INC., et al.

No. 02-918.

Court of Appeal of Louisiana, Third Circuit.

February 19, 2003.

*814 Gerolyn P. Roussel, Perry J. Roussel, Jr., Jules K. Boudreaux, Roussel & Roussel, LaPlace, LA, for Gwendolyn T. Ewing, Wilson Ewing, Terry Paul Ewing, Rodney Ewing, and Christine Ewing Bodin.

Gary P. Kraus, Onebane, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, LA, for John Carroll Robicheaux.

Gary A. Lee, Richard M. Perles, Johanna G. King, Lee, Futrell & Perles, L.L.P., New Orleans, LA, for Peter Territo, Steven Kennedy, and Albert Bossier, Jr.

Samuel M. Rosamond III, Fleming & Rosamond, L.L.P., Metairie, LA, for Commercial Union Insurance Company.

David Joseph Bourgeois, Metairie, LA, for Branton Insulations, Inc.

William Lee Schuette, Jr., Jones, Walker, Waechter, Baton Rouge, LA, for Viacom, Inc.

Gregory Michael Anding, Gary A. Bezet, Kean, Miller, Hawthorne, Baton Rouge, LA, for Exxon Corporation and Texaco, Inc.

William Glenn Burns, Metairie, LA, for The Flintkote Company.

James E. Diaz, Onebane, Bernard, Torian, Lafayette, LA, for Brown & Root, Inc.

Stephen Nolan Elliott, Bernard, Cassisa, et al., Metairie, LA, for Reilly-Benton Company, Inc.

Joseph Warren Gardner, Jr., Christovich & Kearney, New Orleans, LA, for Highlands Insurance Company.

Lynn M. Luker, New Orleans, LA, for Foster-Wheeler Corporation.

Janet Leslie MacDonell, Arthur Wendel Stout III, Deutsch, Kerrigan & Stiles, *815 New Orleans, LA, for Rhone-Poulenc Ag Company.

Susan B. Kohn, Simon, Peragine, Smith, New Orleans, LA, for The McCarty Corporation.

Christopher Kelly Lightfoot, Metairie, LA, for Taylor-Seidenbach, Inc.

Alison Speirer Borison, Lawrence Goode Pugh III, New Orleans, LA, for Eagle, Inc.

Larry Gene Canada, New Orleans, LA, for Combustion Engineering, Inc.

Kaye N. Courington, New Orleans, LA, for Hopeman Brothers, Inc.

Robert Edgar Caraway III, Kenan Slade Rand, Jr., New Orleans, LA, for Peter Territo, American Motorists Insurance Co., Steven Kennedy, Albert Bossier.

Valerie T. Schexnayder, Metairie, LA, for The Flintkote Company.

Troy Nathan Bell, New Orleans, LA, for Garlock Inc.

Claude Frederick Bosworth, Gordon Peter Wilson, Lugenbuhl, Burke, Wheaton, et al., New Orleans, LA, for Travelers Insurance Company.

Charles V. Giordano, Metairie, LA, for Rapid-American.

Walter Scott Brown, New Orleans, LA, for Uniroyal, Inc.

James Francis d'Entremont, New Orleans, LA, for Babcock Borsig Power, Inc.

Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.

THIBODEAUX, Judge.

Plaintiffs, Gwendolyn T. Ewing, the wife of Murphy J. Ewing who contracted mesothelioma as a result of his work-related exposure to asbestos, and his children from a previous marriage, Wilson Ewing, Terry Paul Ewing, Rodney Ewing and Christine Ewing Bodin, sometimes collectively referred to as "plaintiffs or Ewing survivors," appeal the judgment of the trial court granting the defendants', Peter Territo, Albert Bossier, Steven Kennedy, Commercial Union Insurance Company (Commercial Union), Highlands Insurance Company (Highlands), American Motorist's Insurance Company (American), Travelers Insurance Company (Travelers), and John Carroll Robicheaux, sometimes collectively referred to as "defendants," exception of no cause of action on the plaintiffs' loss of consortium claim. After reviewing the record and the applicable law, we affirm the judgment of the trial court and hold that the plaintiffs' alleged cause of action for loss of consortium is barred by the exclusive remedies provision of the Louisiana Workers' Compensation Law.

I.

ISSUE

The significant issue in this case is whether the trial court erred in granting the defendants' exception of no cause of action where the plaintiffs filed a loss of consortium claim against executive officers in a wrongful death case. The decedent's death arose out of a long-latency occupational disease (mesothelioma) due to exposure to asbestos during the years 1964 through 1974. The decedent, Murphy J. Ewing, died on April 10, 1997. Until 1982, an action for loss of consortium did not exist, and since the 1976 amendment to La.R.S. 23:1032, the workers' compensation law has provided the exclusive remedy for suits against executive officers.

II.

FACTS AND PROCEDURAL HISTORY

Murphy J. Ewing was employed with Brown & Root, Inc. from about 1964 *816 through 1974 and with Avondale Industries, Inc. (formerly Avondale Shipyards, Inc.) from about 1971 through 1972. During his employment with these companies, he was exposed to asbestos. Ewing's exposure to asbestos resulted in his contraction of mesothelioma that was diagnosed on or about July 9, 1996. On April 10, 1997, Ewing died as a result of the mesothelioma. Meanwhile, on July 23, 1996, the same month he was diagnosed with mesothelioma, Ewing and his wife Gwendolyn filed suit in district court for damages arising out of his mesothelioma diagnosis, including, but not limited to, a loss of consortium claim on behalf of Gwendolyn. In January 1998, the decedent's children filed supplemental and amending petitions, asserting claims for loss of consortium and the wrongful death of their father against executive officers of his former employers that arose due to Ewing's injury and subsequent death.

On July 26, 2002, the defendants filed peremptory exceptions of no cause of action with respect to the plaintiffs' loss of consortium claims. On July 1, 2002, the trial court rendered a judgment that maintained the defendants' peremptory exception of no cause of action with respect to the plaintiffs' loss of consortium claims. It is from the trial court's judgment that the plaintiffs seek review in this court.

III.

LAW AND DISCUSSION

The plaintiffs argue that the petition states a cause of action for loss of consortium because: 1) their loss of consortium claims arose after September 10, 1982, the effective date of Act 202, which amended La.Civ.Code art. 2315 and allowed survivors to assert a claim for loss of consortium, 2) their claims are derivative of their decedent's primary claim of injury, and 3) Act 989 of 1999, amended La.Civ.Code art. 2315 making it applicable to loss of consortium claims which existed prior to its effective date. The defendants, on the other hand, assert that at the time of the alleged negligent conduct giving rise to Ewing's injuries—1964 through 1974 and 1971 through 1972—loss of consortium damages were not recoverable for injuries that did not result in death; that only since the 1982 amendment to La.Civ.Code art. 2315 have loss of consortium damages been recoverable. The defendants' also argue that the exclusivity provisions of the Louisiana Workers' Compensation Act, La.R.S. 23:1032, extends immunity for loss of consortium damages to claims against executive officers.

A court of appeal reviews de novo

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Bluebook (online)
846 So. 2d 813, 2003 WL 355627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ewing-v-armstrong-world-industries-inc-lactapp-2003.