James Guerin v. The Travelers Indemnity Company, successor or assignee of The Traveler's Insurance Company; Exxon Mobil Corporation; Radiator Specialty Company; Liberty Mutual Insurance Company; Highland Hardware & Garden Center, Inc.; and Olinde Hardware and Supply Co.

• Court: Louisiana Court of Appeal
• Decided: February 21, 2020
• Docket: 2019CA0861
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0861

JAMES GUERIN

VERSUS

1 THE TRAVELERS INDEMNITY COMPANY, Successor or Assignee of THE TRAVELER' S INSURANCE COMPANY; EXXON MOBIL CORPORATION; RADIATOR SPECIALTY COMPANY; LIBERTY MUTUAL INSURANCE COMPANY, HIGHLAND HARDWARE & GARDEN CENTER, INC.; and OLINDE HARDWARE & SUPPLY CO., LLC, f/k/a Olinde Hardware and Supply Co., Inc.

Judgment Rendered: FEB 2 12020

On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. 672528

Honorable William A. Morvant, Judge Presiding

L. Eric Williams, Jr. Attorneys for Plaintiff/Appellant, Lynn E. Williams, Sr. James Guerin Metairie, Louisiana and

Tregg C. Wilson Brett Robinson Baton Rouge, Louisiana

David M. Bienvenu, Jr. Attorneys for Defendant/Appellee, Lexi T. Holinga The Travelers Indemnity Co. ( o/ b/ o Melissa Jade Shaffer itself and The Travelers Insurance Baton Rouge, Louisiana Co.), in its capacity as an alleged insurer of the Ethyl Corp. and its alleged executive officers, Merlin Koenecke ( dec.), W.C. Strader ( dec.), J. H. Huguet ( dec.), and F.C. Holmes dec.) im k1 ( Andrew Eversberg Attorney for Defendant/ Appellee, Baton Rouge, Louisiana Liberty Mutual Insurance Company

Susan B. Kohn Attorneys for Defendant/ Appellee, Douglas R. Kinler Olinde Hardware & Supply Co., LLC Casie Z. Davidson New Orleans, Louisiana

BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.

2 PENZATO, J.

Plaintiff-appellant, James Guerin, appeals a trial court judgment that

sustained exceptions raising the objection of prescription. We affirm.

FACTS AND PROCEDURAL HISTORY

On March 19, 2015, Mr. Guerin was diagnosed with Multiple Myeloma

MM"). On August 13, 2018, he filed this lawsuit alleging that his MM was

caused by occupational exposure to benzene and benzene -containing products

while working as a shift foreman at Ethyl Corporation from 1964 through 1983.

Named as defendants were The Travelers Indemnity Company, in its capacity as

the insurance provider for Ethyl and its deceased executive officers; Exxon Mobil

Corporation, which manufactured, supplied, sold, and distributed benzene -

containing products; Liberty Mutual Insurance Company, in its capacity as the

liability insurer for Insilco, which manufactured and sold benzene -containing

products; and Olinde Hardware and Supply Co., LLC, a distributor, seller, and

supplier of benzene -containing products ( collectively defendants).'

In his petition, Mr. Guerin alleged that while he learned of his diagnosis of

MM on March 19, 2015, the prescriptive period did not begin until after June 2018

when he learned of a possible connection between the benzene he was exposed to

and his illness from an advertisement. According to Mr. Guerin, the defendants

concealed and misrepresented the health hazards of benzene, which led him " to a

course of inaction in the enforcement of his right by reason of some concealment

conduct on the part of the defendants or because of their failure to perform some

legal duty whereby [ he had] been kept in ignorance of his rights."

Defendants filed peremptory exceptions raising the objection of prescription

on the grounds that Mr. Guerin' s claims were prescribed on the face of the petition

1 Radiator Specialty Company and Highland Hardware & Garden Center, Inc. were also named as defendants. They are not involved in this appeal.

3 because he filed his lawsuit more than three years after his diagnosis, and his

petition failed to establish any basis to invoke the doctrine of contra non valentem.

Following an evidentiary hearing, the trial court sustained the exceptions of

prescription, and signed a judgment on May 6, 2019, dismissing Mr. Guerin' s

claims against the defendants.

Mr. Guerin appealed, alleging that the trial court erred by sustaining the

defendants' exceptions of prescription by relying on the date of diagnosis as

constructive knowledge for the commencement of the one year prescriptive period

accruing against plaintiff' s underlying causes of action without considering the

reasonableness of plaintiff' s action or inaction in light of his education,

intelligence, and the nature of defendants' conduct after plaintiff' s treating

physician told the plaintiff he did not know the cause of the MM.2

LAW AND DISCUSSION

The objection of prescription may be raised by a peremptory exception. La.

C. C. P. art. 927A( 1). Evidence may be introduced to support or controvert an

exception of prescription. La. C. C. P. art. 931. If evidence is introduced at the

hearing on the peremptory exception, the trial court' s findings of fact are reviewed

under the manifest error -clearly wrong standard of review. Clavier a Our Lady of

the Lake Hosp. Inc., 2012- 0560 ( La. App. 1 Cir. 12/ 28/ 12), 112 So. 3d 881, 888,

writ denied, 2013- 0264 ( La. 3/ 15/ 13), 109 So. 3d 384. Pursuant to this standard,

the trial court' s ruling must be affirmed unless a reasonable factual basis does not

exist for the finding of the trial court, and the record establishes that the finding is

clearly wrong. Expert Riser Solutions, LLC a Techcrane International, LLC, 2018-

0612 ( La. App. 1 Cir. 12/ 28/ 18), 270 So. 3d 655, 660. The issue to be resolved by

a reviewing court is not whether the trier of fact was right or wrong, but whether

2 Pursuant to a partial voluntary motion to dismiss filed by Mr. Guerin, the appeal was dismissed as to Exxon Mobil Corporation.

S the factfinder' s conclusion was a reasonable one. Stobart a State through Dept of

Transp. & Deu, 617 So. 2d 880, 882 ( La. 1993).

Delictual actions are subject to a liberative prescription of one year, which

commences to run from the day injury or damage is sustained. La. C. C. art. 3492.

Louisiana jurisprudence adopts the doctrine of contra non valentem to the effect

that prescription does not commence running until the facts necessary to state a

cause of action are known or reasonably knowable to the plaintiff. Sharkey u

Sterling Drug, Inc., 600 So. 2d 701, 713 ( La. App. 1 Cir.), writs denied, 605 So. 2d

1099, 1100 ( La. 1992).

There are four recognized categories of contra non valentem: ( 1) where

there was some legal cause which prevented the courts or their officers from taking

cognizance of or acting on the plaintiff' s action; ( 2) where there was some

condition coupled with the contract or connected with the proceedings which

prevented the plaintiff from suing or acting; ( 3) where the defendant himself has

done some act effectually to prevent the plaintiff from availing himself of his cause

of action; and ( 4) where the cause of action is not known or reasonably knowable

by the plaintiff, even though this ignorance is not induced by the defendant. Kirby

u Field, 2004- 1898 ( La. App. 1 Cir. 9/ 23/ 05), 923 So. 2d 131, 135, writ denied,

2005- 2467 ( La. 3/ 24/ 06), 925 So. 2d 1230. Mr. Guerin contends that there are two

categories of contra non valentem that apply in this case, the " discovery rule," or

the fourth category, and the third category.

We first address the fourth category of contra non valentem, commonly

known as the discovery rule. Marin a Exxon Mobil Corp., 2009- 2368 ( La.

10/ 19/ 10), 48 So. 3d 234, 245. The key inquiry in most contra non valentem cases

is the commencement date of the prescriptive period under the discovery rule. Doe

u Delta Women' s Clinic of Baton Rouge, 2009- 1776 ( La. App. 1 Cir. 4/ 30/ 10), 37

So. 3d 1076, 1080, writ denied, 2010- 1238 ( La. 9/ 17/ 10), 45 So. 3d 1055. The

5 doctrine itself is based on the theory that when the claimant is not aware of the

facts giving rise to his or her cause of action against the particular defendant, the

running of prescription is for that reason suspended until the tort victim discovers

or should have discovered the facts upon which his or her cause of action is based.

Id. It is often difficult to identify a precise point in time at which the claimant

becomes aware of suffigient facts to begin the running of prescription. Prescription

will not begin to run at the earliest possible indication that a plaintiff may have

suffered some wrong. Id. On the other hand, a plaintiff will be responsible to seek

out those whom he believes may be responsible for a specific injury. See Id. at

1081. When prescription begins to run depends on the reasonableness of a

plaintiff' s action or inaction. Jordan a Employee Transfer Corp., 509 So. 2d 420,

423 ( La. 1987).

Prescription commences when a plaintiff obtains actual or constructive

knowledge of facts indicating to a reasonable person that he or she is the victim of

a tort. Campo a Correa, 2001- 2707 ( La. 6/ 21/ 02), 828 So. 2d 502, 510.

Constructive knowledge is whatever notice is enough to excite attention and put

the injured party on guard and call for inquiry. Such notice is tantamount to

knowledge or notice of everything to which a reasonable inquiry may lead. Id. at

511. The question is whether, in light of plaintiff' s own information and the

diagnoses he received, the plaintiff was reasonable to delay in filing suit. Cole u

Celotex Corp., 620 So. 2d 1154, 1157 ( La. 1993).

Here, the issue is whether Mr. Guerin' s MM diagnosis was sufficient notice

to excite attention and place him in the position to inquire whether he was the

victim of a tort. Appellants contend that prescription began to run when Mr.

Guerin was diagnosed with MM on March 19, 2015. Mr. Guerin argues that

prescription did not begin to run until June of 2018 when he saw a lawyer' s

advertisement linking MM to exposure to benzene.

0 By agreement of the parties, portions of Mr. Guerin' s deposition were

introduced into evidence at the hearing. According to Mr. Guerin, he did not learn

of the connection between MM and exposure to benzene until he saw an

advertisement in the June 2018 Country Roads Magazine. He testified that he

initially had cancer in 2005, and when he was diagnosed with MM in 2015, he

questioned his physician about why he had gotten cancer twice and what caused it.

Mr. Guerin testified his physician " didn' t really have a good explanation", and told

Mr. Guerin that he did not know where it came from. There was a suggestion that

the cancer could be related to genetics. He testified that in 2015, he asked his

doctors about the possible causes of MM because he was curious. He further

testified that even after he was diagnosed and was undergoing treatment he

remained curious about the causes of his cancer.

Mr. Guerin testified that he was a high- school graduate. During the time

period between 2015 and 2018, Mr. Guerin was a daily reader of the morning

Advocate newspaper. He testified that while he currently had a computer with

internet access, he did not have a computer at his home in 2015. He did have a

computer for his business, and access to his son' s computer. He has had internet

access and an email since 2016, and knows how to search the internet.

Between 2015 and 2018, Mr. Guerin did not have any conversations with

any person employed by Ethyl about benzene and the types of cancers that might

be caused by benzene, nor did anyone from Ethyl in any way hinder his ability to

hire a lawyer or investigate the causes of MM.

Our Louisiana Supreme Court has held that prescription begins to run upon

injury or damage such as receiving a diagnosis. See Cole, 620 So. 2d at 1157- 58.

This court has similarly held that in the context of a toxic substance tort,

prescription did not begin to run when the plaintiff was exposed to the toxic

substance, but rather at the time he was diagnosed with acute myelogenous

7 leukemia, which was when he had knowledge that he suffered an actual and

appreciable injury. Mulkey a Century Indem. Co., 2018- 1551 ( La. App. 1 Cir.

8/ 7/ 19), 281 So. 3d 717, 726, writs denied, 2019- 01534 and 2019- 01576 ( La.

11/ 25/ 19), 283 So. 3d 495.

In Tenorio a Exxon Mobil Corp., 2014- 814 ( La. App. 5 Cir. 4/ 15/ 15), 170

So. 3d 2695 275, writ denied, 2015- 1145 ( La. 9/ 18/ 15), 178 So. 3d 149, the

Louisiana Fifth Circuit Court of Appeal addressed the issue of whether a cancer

diagnosis constituted constructive knowledge sufficient to commence the running

of prescription. The plaintiff was diagnosed with throat cancer in November 2009,

and filed suit on April 17, 2014, alleging that his throat cancer was caused by

workplace exposure to radioactive material. Id. at 272. He argued that contra non

valentem applied because he did not have knowledge of the cause of his throat

cancer until he was informed by a former co- worker in August 2013 that he may

have been exposed to radiation at his former workplace. Id. at 275. The court

rejected his argument, finding that his 2009 diagnosis " was constructive notice

sufficient to put [ the plaintiff] on guard and to call him to inquire into the cause of

his condition." Id. The court noted that contra non valentem does not protect a

plaintiff' s claim from the running of prescription when his own willfulness or

neglect caused his ignorance. The court concluded that "[ a] lthough [ the plaintiff]

claims to not have had knowledge of the radiation exposure at [ his former

workplace], the commencement of prescription began when he should have

discovered the facts upon which his cause of action was based, which was in

November 2009." Id.

Similarly, in Lennie a Exxon Mobil Corp., 2017- 204 ( La. App. 5 Cir.

6/ 27/ 18), 251 So. 3d 637, 648, writ denied, 2018- 1435 ( La. 11/ 20/ 18), 256 So. 3d

994, the court concluded that a diagnosis of lung cancer was constructive notice

sufficient to put the plaintiffs on guard and to call for them to inquire further into the cause of the cancer, finding that their failure to make even a rudimentary

inquiry appeared unreasonable.

Mr. Guerin seeks to distinguish Tenorio and Lennie. He argues that Tenorio

is not applicable because neither party introduced evidence and the court only

examined the allegations set forth in the petition. He maintains that Lennie is

distinguishable because in this case, Mr. Guerin pled concealment,

misrepresentation, suppression, and omission. Mr. Guerin further contends that

Mulkey is on point and the facts are identical to those in this case.

We agree that the facts in Mulkey are nearly identical to those presented in

this case. In Mulkey this court concluded that the plaintiff knew of his damages,

i.e., that he had suffered an actual and appreciable injury, at the time he was

diagnosed with acute myelogenous leukemia and timely filed his claim on March

3, 2014, within one year from March 26, 2013, the date of his diagnosis. Mulkey,

281 So. 3d at 726. We recognize that the court in Tenorio was limited to an

examination of the allegations set forth in the petition. In this case, evidence was

introduced at the hearing on defendants' exceptions; thus, we review that evidence

in addressing the central issue in this case, which is the reasonableness of Mr.

Guerin' s actions in light of the knowledge he possessed.

Mr. Guerin' s deposition testimony reveals that his MM diagnosis on March

199 2015, was his second cancer diagnosis. At the time of his first cancer diagnosis

in 2005, Mr. Guerin questioned the cause of his cancer and sought additional

information from a specialized clinic in New Orleans, Louisiana. Upon receiving

his second diagnosis in 2015, he was curious as to the cause, and questioned his

doctor about possible causes.

Mr. Guerin is a high-school graduate. After his employment with Ethyl, he

had a florist business, where he had access to a computer. He has had a home

computer with internet access and an email since 2016, and knows how to search

D the internet. In addition, he was a daily reader of the newspaper. Mr. Guerin' s

petition recognizes that the health hazards of benzene have been recognized for

over one hundred years, and the development of MM as a result of chronic benzene

exposure has been well documented.

Although Mr. Guerin testified that he remained curious about the causes of

his cancer after he was diagnosed and while he was undergoing treatment, he

argues that it was reasonable for him to simply accept his physician' s explanation

in 2015 that, " well, you know, you have it, and I don' t know where it came from,"

and make no further inquiries into the cause of his condition until coming across a

lawyer' s advertisement in a magazine in June 2018. We find that Mr. Guerin' s

inaction was not reasonable in light of the knowledge that he possessed, and that

his diagnosis in 2015 was constructive notice sufficient to put him on guard and to

call him to inquire into the cause of his condition. See Tenorio, 170 So. 3d at 275.

Thus, we find the fourth category of contra non valentem does not provide

justification for Mr. Guerin' s failure to file suit within one year of his diagnosis of

MM.

Mr. Guerin argues that Lennie is distinguishable from this case, because he

pled concealment, misrepresentation, suppression, and omission. This argument

involves the third category of contra non valentem, which applies to cases wherein

the defendant has concealed the fact of the offense or has committed acts

including concealment, fraud, misrepresentation, or other " ill practices") that tend

to hinder, impede, or prevent the plaintiff from asserting his cause of action, as

long as the plaintiff's delay in bringing suit is not willful or the result of his own

negligence. Marin, 48 So. 3d at 251- 52. However, while Mr. Guerin may have

pled such acts, he did not introduce any evidence at the hearing of the defendants'

exceptions that any of the defendants actually committed such acts. In fact, the

only evidence introduced at the hearing was that Mr. Guerin did not have any

10 conversations with any person employed by Ethyl about benzene and the types of

cancers that might be caused by benzene, nor did anyone from Ethyl in any way

hinder his ability to hire a lawyer or investigate the causes of MM.

Accordingly, we find that the trial court did not manifestly err in concluding

that Mr. Guerin' s claims against defendants have prescribed.

CONCLUSION

For these reasons, the trial court' s May 6, 2019 judgment sustaining the

peremptory exceptions raising the objection of prescription filed by defendants,

The Travelers Indemnity Company, Liberty Mutual Insurance Company, and

Olinde Hardware and Supply Co., LLC, and dismissing all claims by James Guerin

against them is affirmed. Appeal costs are assessed to plaintiff, James Guerin.

AFFIRMED.