Gales v. Gold Bond Bldg. Products

493 So. 2d 611
CourtSupreme Court of Louisiana
DecidedSeptember 8, 1986
Docket85-C-1351
StatusPublished
Cited by19 cases

This text of 493 So. 2d 611 (Gales v. Gold Bond Bldg. Products) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gales v. Gold Bond Bldg. Products, 493 So. 2d 611 (La. 1986).

Opinion

493 So.2d 611 (1986)

Jessie GALES
v.
GOLD BOND BUILDING PRODUCTS, a DIVISION OF NATIONAL GYPSUM CO., and the Kemper Group.

No. 85-C-1351.

Supreme Court of Louisiana.

September 8, 1986.
Rehearing Denied October 9, 1986.

Judith A. DeFraites, Gertler & Gertler, New Orleans, for plaintiff-applicant.

Lawrence K. Benson, Jr., Melanie Miller Lewis, J. Patrick Gaffney, Milling, Benson, Woodward, Hillyer, Pierson & Miller, P.C., New Orleans, for defendant-respondent.

*612 DENNIS, Justice.[*]

The issue presented by this case is whether the obligation to pay workers' compensation binds more than one of a claimant's successive employers when his disabling occupational disease results from his injurious exposure to deleterious causes on successive jobs, and, if so, whether one of the obligors is liable for the whole obligation to the others. In this case the asbestosis claimant filed suit against one, but not the last, of the employers who contributed to his disease. On motion of defendant, the trial court dismissed plaintiff's suit at the end of his case because of his failure to implead the last contributing or causative employer. The court of appeal affirmed. 472 So.2d 82. We reverse. Any employer whose employment of a claimant has contributed causally to his disabling occupational disease is solidarily obliged to him fully for workers' compensation. As between successive employers contributing to an employee's disabling occupational disease, the employer during whose employment the employee was last injuriously exposed to the cause of the occupational disease is fully responsible for all workers' compensation due.

1. Facts

Jessie Gales began work as an asbestos manufacturing worker in 1942 for R.J. Dorn Company at its plant on Tchoupitoulas Street in New Orleans. During his career, he worked at the same plant for several successive employers, until disabled by the disease of asbestosis in 1983. The period during which each company owned the plant and employed Gales was as follows: R.J. Dorn Company 1942 to 1943; Asbestone Corporation, 1943 to 1953; Gold Bond Building Products, a division of National Gypsum Company, 1953 to 1981; International Building Products 1981 to 1983. In 1983, Gales took an early retirement after being diagnosed as having asbestosis.

Gales filed this suit for workers' compensation against Gold Bond in 1983 and trial commenced in 1984. The plaintiff's evidence showed that Gales' employment exposed him to greater than ordinary concentrations of asbestos dust and fibers throughout his career. Although his expert medical witnesses identified his 28 year employment from 1953 to 1981 by Gold Bond as the principal cause of his asbestosis, they also testified that his last two years of employment by International Building Products, Inc., contributed to his occupational disease. At the conclusion of plaintiff's case, defendants filed a motion for involuntary dismissal. The trial court granted the defendant's motion and dismissed plaintiff's claim with prejudice.

The trial court interpreted this court's decision in Carter v. Avondale Shipyards, Inc., 415 So.2d 174 (La.1982) as holding that only the last causative employer may be held liable to an employee disabled by an occupational disease. Because plaintiff's own evidence showed that International Building Products, which plaintiff failed to name as a defendant, was the last causative employer, the suit against Gold Bond was dismissed. Plaintiff appealed, and the court of appeal affirmed.

2. The Issue

We granted certiorari to decide whether more than one successive employer of a worker who contracts a disabling occupational disease may be held liable in solido for workers' compensation to the employee if each employer's work related activity or environment contributed to the disease; and, if so, the nature of the liability of the solidary obligors between themselves.

3. Carter v. Avondale Shipyards, Inc.

Carter v. Avondale Shipyards, Inc., 415 So.2d 174 (La.1982) does not resolve the issue presented by this case. Carter was a contest between two successive employers to determine, as between the employers, whether liability for a worker's occupational disease should be imposed on one employer or apportioned between employers. After initially deciding that liability for compensation benefits should be apportioned *613 between employers whose employments were causative factors in the development of the employee's disease, this court vacated that decision on rehearing, and found that the final employer, Avondale, was solely responsible because it had failed to prove that the employment by the previous employer, Dibert, Bancroft & Ross, had been a causative factor. In dicta, this court suggested that responsibility for compensation of occupational disease victims should be placed only on "employers of the worker at the time the disease `manifested itself' and `disabled' the worker." Carter v. Avondale Shipyards, Inc., supra, p. 181.

Consequently, this court in dicta may have expressed a preference for the last injurious exposure rule in resolving disputes between successive employers over liability for an employee's progressive occupational disease. However, the court was not called upon to decide, and did not decide even in dicta, whether an employee may hold each successive employer whose employment of him was a causative factor in the development of his occupational disease solidarily liable for workers' compensation.

4. The Statute

The workers' compensation act provides for benefits in connection with occupational diseases upon certain terms and conditions. La.R.S. 23:1031.1.[1] Every employee is entitled to compensation for disability caused by occupational disease contracted during *614 employment the same as in the case of personal injury by accident arising out of and in the scope and course of his employment. Id. A. An occupational disease must be due to causes characteristic of the employment in which the employee is exposed. Id. B. There is a rebuttable presumption that any disease contracted within the first twelve months of performing work for an employer is non-occupational. Id. D. To preserve his claim an employee must file it with his employer within six months of the date that the disease manifested itself, the employee is disabled from working as a result of the disease, or the employee knows or has reasonable grounds to believe that the disease is occupationally related. Id. E. An employee who willfully and falsely represents himself as not having previously suffered from a disease upon entering employment is disqualified for benefits as a result of that disease. Id. G. The right to workers' compensation on account of occupational disease is exclusive of all other rights or remedies. Id. H.

With respect to an occupational disease caused by multiple successive employments, the statute is open textured and ambiguous. Its provisions do not clearly state whether each causative employer is obliged to pay compensation, whether a causative employer's obligation is several, joint or solidary, or, if solidary, how the obligors may be liable between themselves. The statute alternately links the employer's obligation with the employee's contraction of or exposure to disease during employment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fernandez v. Hand Construction, LLC
194 So. 3d 1149 (Louisiana Court of Appeal, 2016)
Vidrine v. Constructors, Inc.
953 So. 2d 193 (Louisiana Court of Appeal, 2007)
Spencer Bertrand v. Robert Moore
Louisiana Court of Appeal, 2007
Jimmy Vidrine v. Constructors, Inc.
Louisiana Court of Appeal, 2007
McClure v. City of Pineville
944 So. 2d 805 (Louisiana Court of Appeal, 2006)
Howard McClure v. City of Pineville
Louisiana Court of Appeal, 2006
Dowell v. Ochsner Clinic of Baton Rouge
874 So. 2d 852 (Louisiana Court of Appeal, 2004)
OMSI v. Elliott
869 So. 2d 300 (Louisiana Court of Appeal, 2004)
Omsi v. Alvin Joe Elliott
Louisiana Court of Appeal, 2004
Ball v. Wendy's Intern., Inc.
839 So. 2d 1208 (Louisiana Court of Appeal, 2003)
Isaac v. Lathan
836 So. 2d 191 (Louisiana Court of Appeal, 2002)
Austin v. Abney Mills, Inc.
824 So. 2d 1137 (Supreme Court of Louisiana, 2002)
Flor v. Holguin
9 P.3d 382 (Hawaii Supreme Court, 2000)
City of Shreveport v. KINGWOOD FOREST
746 So. 2d 234 (Louisiana Court of Appeal, 1999)
Hill v. Manpower-Collier Investments
712 So. 2d 560 (Louisiana Court of Appeal, 1998)
Felan v. F & F TRUCKING, INC.
708 So. 2d 430 (Louisiana Court of Appeal, 1998)
Beason v. Red Ball Oxygen Co., Inc.
702 So. 2d 26 (Louisiana Court of Appeal, 1997)
Dempster v. Avondale Shipyards, Inc.
643 So. 2d 1316 (Louisiana Court of Appeal, 1994)
Gilmore v. Reising Sunrise Bakery
531 So. 2d 1172 (Louisiana Court of Appeal, 1988)
Schouest v. Franke
526 So. 2d 1342 (Louisiana Court of Appeal, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
493 So. 2d 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gales-v-gold-bond-bldg-products-la-1986.