Jimmy Williams, Sr. v. Placid Oil Company

• Court: Louisiana Court of Appeal
• Decided: August 2, 2017
• Docket: CA-0016-0839
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

16-839

JIMMY WILLIAMS, SR., ET AL.

VERSUS

PLACID OIL COMPANY, ET AL

********** APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, DOCKET NO. 76,787 HONORABLE LALA B. SYLVESTER, PRESIDING **********

SYLVIA R. COOKS JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Elizabeth A. Pickett, John E. Conery, and D. Kent Savoie, Judges.

AFFIRMED.

Conery, J., concurs in part, dissents in part and assigns reasons.

Savoie, J., concurs in part, dissents in part and assigns reasons.

Wells T. Watson Jeffrey T. Gaughan Baggett, McCall, Burgess, Watson & Gaughan 3006 Country Club Road Lake Charles, LA 70605 (337) 478-8888 ATTORNEY FOR PLAINTIFFS/APPELLEES Jimmy Williams, Sr., Dalton Williams, Gwendolyn Hernandez, Jimmy Williams, Jr. and Jeannette Shows Lewis O. Unglesby Lance Unglesby Unglesby Law Firm 246 Napoleon Street Baton Rouge, LA 70802 (225) 387-0210 ATTORNEY FOR PLAINTIFFS/APPELLEES Jimmy Williams, Sr., Dalton Williams, Gwendolyn Hernandez, Jimmy Williams, Jr. and Jeannette Shows

Donald Kelly William Townsend Kelly and Townsend P.O. Box 756 Natchitoches, LA 71457 (318) 352-2353 ATTORNEY FOR PLAINTIFFS/APPELLEES Jimmy Williams, Sr., Dalton Williams, Gwendolyn Hernandez, Jimmy Williams, Jr. and Jeannette Shows

Joseph B. Morton Richard M. Crump Ebony S. Morris Maron Marvel Bradley Anderson & Tardy LLC 201 St. Charles Ave., Suite 2411 New Orleans, LA 70139-6001 (504) 684-5100 ATTORNEY FOR DEFENDANT/APPELLANT Ingersoll-Rand Company

H. Alston Johnson, III Phelps Dunbar LLP 400 Convention Street, Suite 1100 P.O. Box 4412 Baton Rouge, LA 70821-4412 (225) 346-0285 ATTORNEY FOR DEFENDANT/APPELLANT Ingersoll-Rand Company

2 COOKS, Judge.

On August 9, 2003, Myra Williams died at the age of 59. Several months

prior to her death, Myra was diagnosed as having incurable, malignant

mesothelioma. She endured a difficult and painful battle with that disease until her

death. Myra was married to Jimmy Williams, Sr. and was the mother of four

children.

Jimmy was exposed to asbestos fibers while working at the Placid Oil

Facility in Natchitoches, Louisiana. Jimmy unknowingly brought the cancer

causing fibers and dust home on his clothing after each day of work. Myra would

handle and wash Jimmy’s clothing, and sustained what is commonly referred to as

bystander asbestos exposure. It is undisputed that Myra’s constant exposure to

Jimmy’s work clothing caused her mesothelioma.

Jimmy and the four children filed suit on March 16, 2004, against several

defendants, namely Placid Oil Company, Ingersoll-Rand Company, Petro-Hunt,

L.L.C., LLECO Petroleum Products, Inc., CanadianOxy Offshore Production Co.,

J. Graves Insulation Company, Inc., Shreveport rubber & Gasket company, Anco

Insulations, Inc., Garlock, Inc., General Electric Company, DHEC Corporation.1

Plaintiffs’ suit included both a survival action filed on behalf of Myra and

wrongful death actions on behalf of Jimmy and the four children against the

defendants. Soon after filing suit, Plaintiffs dismissed Petro-Hunt, CanadianOxy,

DHEC, Anco and LLECO without prejudice. J. Graves Insulation filed a motion

for summary judgment. That motion was unopposed by any party, and was

granted by the trial court, dismissing Plaintiffs’ claims against it with prejudice.

Prior to trial, Plaintiffs settled with Placid Oil, Shreveport Rubber & Gasket and

1 The other defendants named were Petro-Hunt, L.L.C.. LLECO Petroleum Products, Inc., CanadianOxy Offshore Production Co., J. Graves Insulation Company, Inc., Shreveport Rubber & Gasket Company, Anco Insulations, Inc., Garlock, Inc., General Electric Company, DHEC Corporation. Petro-Hunt and CanadianOxy were named as “successors in interest” to Placid Oil Company. 3 General Electric. That left Ingersoll-Rand as the only named defendant that

proceeded to trial.

Ingersoll-Rand was the manufacturer of ten compressors that were installed

in the “compressor room” of the Placid Oil facility. The turbo chargers and

exhaust pipes for each compressor were insulated with asbestos. Plaintiffs also

elicited testimony that the Ingersoll-Rand compressors had asbestos gaskets on

them, which came directly from Ingersoll-Rand.

Ingersoll-Rand argued the compressor insulation was covered with

aluminum sleeves which prevented release of the asbestos fibers. This was

disputed by several witnesses who maintained many of the exhaust pipes were not

covered with aluminum sleeves. There also was testimony that the aluminum

sleeves that were attached did not prevent release of asbestos dust in the

compressor room.

The sole exposure expert to testify at trial, Frank Parker, stated the

compressors emitted “very significant [asbestos] dust,” which was visible to the

naked eye in the compressor room. Thus, he concluded Jimmy was exposed to

huge concentrations of asbestos dust. Mr. Parker also opined there was no way

Myra could have handled Jimmy’s clothing without suffering asbestos exposure.

After a three-day bench trial, the trial court issued a judgment, accompanied

by written reasons for judgment. As to the survival action, the trial court found

Placid Oil and Ingersoll-Rand were at fault in causing Myra’s mesothelioma and

were each liable for their virile share. In regard to the wrongful death action, the

trial court concluded that under the law Ingersoll-Rand was solely at fault in

causing Myra’s mesothelioma. Myra was awarded $3,000,000.00 in damages for

her survival action. As to the wrongful death actions, Jimmy was awarded

$1,000,000.00, and each of the four children were awarded $750,000.00 each.

4 Ingersoll-Rand has appealed the judgment of the trial court, asserting the

following assignments of error:

1. The trial court erred in concluding that plaintiffs had proven a causal connection between the decedent’s disease and Ingersoll-Rand Company products.

2. The trial court erred in declaring in a summary judgment that no fault could be allocated to J. Graves Insulation and that the judgment was a final judgment.

3. The trial court erred in assigning 50% responsibility to Ingersoll-Rand Company in the survival action.

4. The trial court erred in assigning 100% responsibility to Ingersoll- Rand Company in the wrongful death action.

5. The trial judge awarded excessive damages in the wrongful death action.

ANALYSIS

I. Ingersoll-Rand’s Liability.

Ingersoll-Rand argues the trial court erred in finding Plaintiffs proved a

causal connection between Myra’s disease and Ingersoll-Rand’s products. Finding

the evidence at trial established a causative link between Ingersoll-Rand’s

compressors and Myra’s mesothelioma, we find this assignment of error without

merit.

The uncontradicted evidence established the compressor room at the Placid

Oil facility housed ten compressors manufactured by Ingersoll-Rand. The

corporate representative for Ingersoll-Rand, Gerald Swimmer, acknowledged in his

deposition that the Ingersoll-Rand compressors contained asbestos material.

Testimony established the compressors required asbestos insulation because in

normal operation the turbo chargers and exhaust pipes on the compressor could

reach temperatures in excess of one thousand degrees fahrenheit. Frank Parker,

Plaintiffs’ exposure expert, testified, at that time, the only available insulation was

made of asbestos containing material.

5 Testimony established that the intense vibrations of the compressors while

running caused the release of asbestos fibers and dust from the insulation into the

air. The compressors ran continuously and the vibrations from the compressors

could be felt before even entering the compressor room. Frank Parker stated the

vibrations that occurred when the compressors were running was the main factor in

asbestos dust and fibers being released into the air. He gave the following

testimony at trial as to the enormity of the Ingersoll-Rand compressors and the dust

that was emitted from them due to the vibrations:

So these, these are big, you just, I mean you just gotta see them to believe them. And so anything like insulation, that type of thing on them is [going to] have tremendous vibrations and creates uh, very significant dust.

Part of Jimmy’s duties required him to clean and sweep up the compressor

room, which had the unintended effect of causing any settled asbestos fibers and

dust to circulate back into the air while he was sweeping. Several witnesses,

including Jimmy Williams, Sr., Bill Frazier and Frank Parker testified that the most

obvious and likely cause for Myra’s asbestos exposure was Jimmy’s work in the

compressor room. These witnesses all testified there was a constant level of

asbestos dust in the compressor room that was actually visible to the naked eye in

sunlight.

Ingersoll-Rand attempted to counter this testimony by maintaining the

insulation on the compressors was covered with aluminum sleeves, which it argued

prevented release of the asbestos fibers and dust. However, both Prentiss McLeod

and Jimmy Williams, Sr. testified many of the turbo chargers and exhausts were

not covered with aluminum sleeves. Most importantly, the great weight of the

testimony, which the trial court accepted, established there was significant release

of asbestos fibers and dust from the compressors.

6 Ingersoll-Rand complains in its brief that Plaintiffs have failed to establish

an exact “dose” of exposure to asbestos. However, a plaintiff is not required to

produce such proof to prevail in his/her action. As Plaintiffs point out, the court in

Robertson v. Doug Ashy Building Materials, Inc., 10-1547 (La.App. 1 Cir.

10/4/11), 77 So.3d 323, 336, writ denied, 11-2468 (La.1/13/12), 77 So.3d 972,

addressed a similar argument, and stated, as follows:

we cannot find, nor have we been directed to, any authority for the trial court’s determination that a plaintiff must prove or that an expert must know the “dose” of asbestos as to each particular defendant in order to establish causation. Rather, based on our review of the jurisprudence, the plaintiff is only required to show “significant exposure to the [asbestos-containing] product complained of to the extent that it was a substantial factor in bringing about his injury.” Rando [v. Anco Insulations Inc.], 08-1163 at p. 35, 16 So.3d at 1091.

This standard of proof, developed by Louisiana courts over years of asbestos

litigation, is known as the “substantial factor” test. Rando v. Anco Insulations,

Inc., 2008-1163, 2008-1169, p. 35 (La.5/22/09), 16 So.3d 1065, 1091. Thus, a

plaintiff must prove, by a preponderance of the evidence that: (1) her exposure to

the defendant’s asbestos product was significant; and (2) that this exposure caused

or was a substantial factor in bringing about her mesothelioma. Id.

The record was replete with evidence that Myra’s mesothelioma arose from

her exposure to asbestos while handling Jimmy’s work clothes and riding in the

family vehicle, which was Jimmy’s transportation to and from work. Frank Parker,

Plaintiff’s exposure expert, was adamant in his belief that there was no way Myra

could have handled Jimmy’s clothing without suffering substantial exposure to

asbestos.

Testimony by Ingersoll-Rand’s corporate representatives, Gerald Swimmer

and Victor Weintraub, reflected that Ingersoll-Rand was aware of potential

asbestos problems as early as the 1950’s. Frank Parker testified in the 1950’s, in

connection with its sales to the United States Naval Academy, Ingersoll-Rand

7 became aware of the potential health hazards caused by exposure to asbestos. By

1971, OSHA had identified asbestos as a Class 1 health hazard.

The record reflects Ingersoll-Rand was fully aware asbestos was a

component part of its compressors. It also was aware of the potential health

hazards from exposure to asbestos. Despite this knowledge, there was no

testimony that Ingersoll-Rand warned any Placid Oil employees, including Jimmy

Williams Sr., about these potential health hazards.

For the reasons set forth above, we find no error on the trial court’s part in

finding Myra’s exposure to asbestos as a result of Jimmy’s work with the

Ingersoll-Rand compressors, was significant, and the exposure was a substantial

factor in the development of her mesothelioma. This assignment of error is

without merit.

II. Summary Judgment Dismissing J. Graves Insulation.

In its second assignment of error, Ingersoll-Rand asserts the trial court erred

by declaring, in a summary judgment, that J. Graves Insulation was not at fault and

finding that the judgment was a final judgment.

Ingersoll-Rand alleges J. Graves was an insulation company that worked at

the Placid Oil facility at certain times during the period in question. J. Graves was

named as a party defendant in Plaintiffs’ lawsuit. In response, J. Graves filed a

motion for summary judgment. J. Graves supported its motion with sworn answers

to interrogatories that it never “provide[d] asbestos-containing material to the

Placid Oil facility.” Jimmy Williams, Sr. testified he remembered J. Graves

performed some insulation work on pipes at the Placid Oil facility, but did not

know how often J. Graves was on site and testified there were other insulation

companies who performed work there that he could not remember. J. Graves

provided discovery responses that the only products sold or used by it at the Placid

Oil facility were used only for insulation of cold processes. Thus, J. Graves

8 maintained it was not responsible for Myra being exposed to any asbestos-

containing materials used or supplied by J. Graves.

J. Graves’ motion was unopposed by any party, and was granted by the trial

court pursuant to La.Code Civ.P. art. 966(G), dismissing Plaintiffs’ claims against

it with prejudice. No appellate review was sought by any party, including

Ingersoll-Rand, from the trial court’s judgment dismissing J. Graves. Despite this,

Ingersoll-Rand questions the propriety of the summary judgment in its quest to

have J. Graves cast with liability for a virile share of the damages awarded by the

trial court. We find no merit in this argument, and find the motion for summary

judgment granted in favor of J. Graves was a final and appealable judgment when

rendered and signed. Ingersoll-Rand did not timely file an appeal attacking the

correctness of that summary judgment and it is legally barred from doing so now.

Plaintiffs also accurately note, even absent the summary judgment, under the

provisions of La.Civ.Code art. 2324 at that time, as a solidarily obligor, Ingersoll-

Rand could be cast in judgment for the full amount, including that portion

allocated to J. Graves, unless Plaintiffs settled with J. Graves.2 Further, Ingersoll-

Rand failed to introduce any evidence reflecting any work done by J. Graves at the

Placid Oil facility, least of all any evidence that asbestos-containing material was

actually installed or worked on by J. Graves.

III. Survival Action.

In this assignment of error, Ingersoll-Rand maintains the trial court erred in

assigning 50% responsibility to Ingersoll-Rand Company in the survival action.

After a review of the record and evidence adduced at trial, we find no error in the

trial court’s allocation of an equal virile share to both Ingersoll-Rand and Placid

Oil.

2 Ingersoll-Rand’s right to contribution from J. Graves for its virile share would not affect Plaintiffs’ judgment for the whole amount against it, unless as noted, Plaintiffs settled with J. Graves. 9 The Louisiana Supreme Court has held the current comparative fault law

does not apply in asbestos exposure cases such as the instant one, where the

substantial injury-producing exposures giving rise to plaintiffs’ claims occurred

prior to the August 1, 1980.3 Cole v. Celotex Corp., 599 So.2d 1058 (La.1992).

The Louisiana Supreme Court in Cole explained the reasoning for this as follows:

We conclude that the key relevant events giving rise to a claim in long-latency occupational disease cases are the repeated tortious exposures resulting in continuous, on-going damages, although the disease may not be considered contracted or manifested until later. We further conclude that when the tortious exposures occurring before Act 431’s effective date are significant and such exposures later result in the manifestation of damages, pre-Act law applies. Id., at 1066.

Ingersoll-Rand incorrectly argues that Placid Oil could have been assigned a

greater percentage of fault. Pursuant to the law, pre-comparative fault law controls

liability for the survival claims, and each liable defendant has an equal, virile share

of the award provided to the plaintiffs. Id. As Plaintiffs note, Placid Oil was found

strictly liable as the premise owner pursuant to La.Civ.Code art. 2317. At the time

of Myra’s exposures, La.Civ.Code art. 2317 did not require a finding of knowledge

of the danger. Placid Oil was strictly liable solely because it was the premises

owner. Under strict liability concepts, the mere fact of the premise owner’s

relationship with and responsibility for the damage-causing thing gives rise to an

absolute duty to discover the risks presented by the thing in custody. Thus, the

trial court appropriately cast Placid Oil as liable for a single virile share for the

survival damages awarded.

Ingersoll-Rand also ignores the applicable law in arguing its liability should

be reduced because “for one third of the 21 years for which that sum was awarded,

Ingersoll-Rand Company products had no causal role in his exposure.” As

3 The record is clear that Jimmy Williams, Sr. began working for Placid Oil in 1966, and worked as a compressor operator in the compressor room at the Placid Oil facility in the 1970’s when he was exposed to asbestos. Thus, it is clear pre-comparative fault law applies. 10 Plaintiffs note, it is irrelevant whether or not exposure occurred and ended at

different intervals in time. It is only relevant that the evidence established

“significant exposure to the asbestos-containing product complained of to the

extent that it was a substantial factor in bringing about [the] injury.” Rando, 16

So.3d at 1091. As set forth above, the trial court did not err in finding Ingersoll-

Rand’s products were a substantial factor in bringing about Myra’s mesothelioma;

thus, Ingersoll-Rand is automatically responsible for an equal virile share under the

law at the time of exposure.

Plaintiffs’ note, at the time of Myra’s exposure to asbestos, La.Civ.Code art.

2324 provided that a single solidary obligor could be compelled to pay the entire

judgment. Touchard v. Williams, 617 So.2d 885 (La.1993). The underlying

principal of solidary liability was to insure that the injured Plaintiff received full

recovery. Under pre-1987 law, one solidary obligor could be obligated for the

whole. Id. at 890. However, La.Civ.Code art. 2324 reserved to all parties their

respective rights of indemnity and contribution. The trial court noted Ingersoll-

Rand had the ability to seek a virile share reduction, but specifically found

“Ingersoll-Rand failed to prove any other virile share liability.” The trial court

further stated “Ingersoll-Rand has the same obligation as the Plaintiff’s [sic] to

prove its case. They did not call any witnesses or introduce any evidence on the

issue of Third Party Fault.”

The trial court found, at most, Ingersoll-Rand only mentioned the

involvement of several other entities, but did not prove any liability on their part in

Myra’s exposure to asbestos. “When a defendant urges the fault of a non-party, it

is incumbent upon that defendant to provide evidence which preponderates that

fault actually exists on the part of the non-party.” Joseph v. Broussard Rice Mill,

Inc., 00-0628, p. 8-9 (La.10/30/00), 772 So.2d 94, 99, (citing Terro v. Casualty

Reciprocal Exch., 93-593 (La.App. 3 Cir. 2/2/94), 631 So.2d 651, writ denied, 94-

11 522 (La. 4/22/94), 637 So.2d 157); Smith v. Jack Dyer & Associates, 633 So.2d

694 (La.App. 1 Cir.1993).

The trial court also found, as to the survival action, the “only parties against

whom any claim was proven is Placid Oil and Ingersoll-Rand.” In its brief,

Ingersoll-Rand argues the evidence below established fault on six other entities.4

Initially, we note Garlock, Flexitallic and Pittsburgh-Corning (three of the

six entities specifically named by Ingersoll-Rand), had been previously adjudged

bankrupt. Applying La.Civ.Code art. 2324, as written at the time of the substantial

exposure, a non-settling solidary defendant cannot reduce its liability through the

insolvency of a co-defendant.

Thus, along with finding Ingersoll-Rand failed to provide any evidence of

these parties’ fault, the trial court correctly found the applicable law at the time of

Myra’s exposure did not allow a virile share offset or credit for the alleged liability

of the entities listed to reduce Ingersoll-Rand’s responsibility for payment of the

judgment. Moreover, we also find no error in the trial court’s finding that

Ingersoll-Rand failed to provide any evidence as to any of the other specified

parties’ alleged fault, and note as well that the judgment dismissing J. Graves is

final. The record did not establish sufficient proof of any negligence on the part of

Hudson Engineering. While the record did establish Hudson built the buildings at

the Placid Oil facility, there was no mention of asbestos. Prentiss McCloud

testified that Hudson insulated the compressors as per the instruction of Ingersoll-

Rand. Ingersoll-Rand’s arguments as to Shreveport Rubber & Gasket are

indicative of the lack of evidence established at trial. In its appellate brief, when

briefly discussing Shreveport Rubber, Ingersoll-Rand states it was a “provider of

4 The six entities listed by Ingersoll-Rand are as follows: Garlock (a manufacturer and seller of gaskets), Flexitallic (a manufacturer and seller of gaskets), Pittsburgh-Corning Corporation (a manufacturer of Unibestos, which is an asbestos insulation product which Ingersoll-Rand claims was present in the compressor room), Shreveport Rubber & Gasket Co. (a provider of gaskets from which Ingersoll-Rand claims Placid Oil personnel made their own gaskets), J. Graves Insulation Co. (an alleged installer of asbestos insulation) and Hudson Engineers (which built a great deal of the Placid Oil facility). 12 gaskets or of asbestos sheets from which Placid personnel made their own

gaskets.” In support of that claim, Ingersoll-Rand cites the following testimony of

Jimmy Williams, Sr.:

Q. Okay. Did you ever hear of a company called Shreveport Rubber and Gasket?

A. Yes sir.

Q. Uh, and isn’t it true that Placid bought their gaskets or some of their gaskets from Shreveport Rubber and Gasket?

A. I’m sure they did. They were a supplier of it.

This was the entirety of the testimony cited by Ingersoll-Rand that referred to

Shreveport Rubber & Gasket. Although Mr. Williams testified they likely supplied

gaskets, it was not stated they supplied asbestos gaskets nor was there any mention

of Shreveport Rubber & Gasket supplying asbestos sheets. There also is no

mention of what Shreveport Rubber & Gasket may have known or failed to do.

Simply because Shreveport Rubber & Gasket settled with Plaintiffs does not meet

Ingersoll-Rand’s burden of proof

As noted by the trial court, the appellate court in Roberts v. Owens-Corning

Fiberglas Corp., 03-248, p.14 (La.App. 1 Cir. 4/2/04), 878 So.2d 631, 642,

discussed the burden a non-settling defendant must meet to find negligence on

third parties:

Exxon correctly contends, and as Roberts’ experts stated, that any exposure or inhalation, of a respirable fiber, may cause lung disease. But our courts have, as a matter of policy, required that “the claimant must show that he had a significant exposure to the product complained of to the extent that it was a substantial factor in bringing about injury.” Bordelon, 96-0525 at p. 30, 726 So.2d at 948, cited in Abadie, 00-344, 00-856 at p. 90, 784 So.2d at 65. The court in Abadie was very clear that a non-settling defendant must prove, not only that a settling defendant manufactured an asbestos-containing product, but also that the products were used in such a manner that dust was emitted. Evidence of the mere physical presence of asbestos- containing material is insufficient to find a manufacturer liable to a plaintiff. Abadie, 00-344, 00-856 at p. 92, 784 So.2d at 67.

13 Based on our review of the record, the trial court’s finding that no other entity

besides Ingersoll-Rand and Placid Oil was at fault in the survival action is not

manifestly erroneous. The record is void of the required evidence for Ingersoll-

Rand to meet its burden of proof on this issue.

IV. Wrongful Death Action.

Ingersoll-Rand argues in this assignment of error that the trial court erred in

assigning 100% responsibility to it in the wrongful death action. Ingersoll-Rand

argues in its brief that the “liability determination in a survival action and a

wrongful death action is the same in every case unless the death did not result from

the same cause that produced the injuries in the survival action.” As Plaintiffs

note, this assertion is wholly without merit.

The Louisiana Supreme Court in Walls v. American Optical Corp., 98-0455

(La. 9/8/99), 740 So.2d 1262, addressed this issue. In Walls, the supreme court

addressed whether the 1976 amendment to La.R.S. 23:1032, which provided for

executive officer immunity, applied to a wrongful death claim where the

decedent’s death from silicosis, contracted as a result of occupational exposure to

silica dust, occurred well after the amendment’s effective date, but his exposure to

the hazardous substance occurred prior to the amendment. The plaintiffs in Walls

argued that the exposure theory in Cole, 599 So.2d 1058, should apply to their

wrongful death claim, arguing that Cole requires all long-latency occupational lung

disease cases to be governed by the law in effect on the date the victim was

exposed to the disease causing agent.

The court in Walls rejected this argument, stating that “Cole should not be

read so expansively.” Walls, 740 So.2d at 1270. In doing so, the supreme court

explained that Cole involved a direct tort action, which, like all other actions,

accrues upon the existence of both wrongful conduct and an injury. In long-

latency disease cases, where the relevant injury is the victim’s disease, determining

14 the exact moment of injury is virtually impossible. However, the court in Walls

recognized that a different situation exists when the cause of action is one for

wrongful death:

While we acknowledge the factual similarities between Cole and the instant case, we find the distinguishing factors dispositive, and reject the plaintiffs’ contention that Cole’s “tortious exposure doctrine” applies to determine the applicable law in the instant case.

Id. at 1271. After distinguishing Cole on the ground that the 1976 amendment to

La.R.S. 23:1032 was not at issue in that case, which turned on the distinct language

of Act 431 and the legislative intent expressed therein, the supreme court

explained:

[T]he instant case does not involve a direct tort action or a survival action, such as gave rise to Cole, but instead presents an action for wrongful death. In Louisiana, it is well established that the survival action and the wrongful death action are two different causes of action that arise at different times.

Noting that the survival action and the wrongful death action are totally separate

and distinct causes of action that arise at different times and allow recovery of

completely different damages, the court concluded that although “Cole established

the ‘exposure theory’ for determining the applicable law within the context of the

direct tort action and survival action . . . Cole’s rationale cannot apply to the instant

case involving a wholly distinct cause of action for wrongful death.” Walls, 740

So.2d at 1273. Thus, the supreme court determined with regard to the wrongful

death cause of action in long-term exposure cases, the law to be applied is the law

in existence at the time of death.

The trial court correctly noted “[t]he wrongful death claim’s determined by

the law at the time of death as differentiated from the survival claim determined by

law at the time of the exposure.” The trial court also stated Ingersoll-Rand “is

entitled to no additional percentage reduction absent proving it was more likely

that not the fault of others.”

15 The trial court found Placid Oil was not at fault in the wrongful death claim

as Ingersoll-Rand produced no evidence of any actual or constructive knowledge

of Placid concerning any asbestos related dangers at its facility. As we discussed

in relation to the survival action, under the version of La.Civ.Code art. 2317 in

existence at the time of Myra’s substantial exposure to asbestos, there was no

requirement that the premise owner have actual or constructive knowledge to

impose strict liability.

However, in 2004, when Myra died, changes had been made to La.Civ.Code

art. 2317 and La.Civ.Code art. 2317.1 applied. In relevant part, La.Civ.Code

2317.1 read as follows:

The owner or custodian of a thing is answerable per damages occasioned by its ruin, vice or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care and that he failed to exercise reasonable care.

The trial court found Placid Oil strictly liable in the survival action solely based on

its capacity as the premise owner, not an employer. Ingersoll-Rand failed to

introduce any evidence of actual or constructive knowledge on Placid Oil’s part

concerning any asbestos dangers posed by Ingersoll-Rand’s compressors to its

employees. There was also no evidence that Ingersoll-Rand ever placed Placid Oil

on notice of any potential hazards from working around its compressors.

Ingersoll-Rand cites the case of Warren v. Sabine Towing and Transp. Co.,

Inc., 01-573 (La.App. 3 Cir. 10/30/02), 831 So.2d 517, writs denied, 02-2926, 02-

2927, 02-2936 (La. 2/14/03), 836 So.2d 116, 117, as supportive of its position that

its apportionment of fault should be reduced in the wrongful death claim. In

Warren, a survival action and wrongful death action were tried over the decedent’s

battle with acute myelogenous leukemia as a result of alleged exposure to benzene

during his employment. After a bench trial, the trial court assigned 33% fault to

16 the employer and the balance to other entities in the survival action. In the

wrongful death action, no fault was assigned to the employer. This court reversed

and found the employer liable for 40% fault in both the survival action and

wrongful death action.

Ingersoll-Rand asserts this case supports its position that “there is nothing in

the record to support a different allocation of responsibility in the wrongful death

action from that found in the survival action.” We disagree, and find the Warren

case is distinguishable from the present case. Importantly, both the survival action

and wrongful death action in Warren were determined based upon a comparative

fault system. Thus, the basis for our reversal in Warren is not present in the facts

before us today. The survival action in this case is based on pre-comparative fault

law and the wrongful death action is based on comparative fault. Thus, Warren is

not analogous to the instant case.

After a thorough review of the record and applicable law, we find the trial

court did not abuse its discretion in assessing one hundred percent fault in the

wrongful death action to Ingersoll-Rand. As discussed above, Ingersoll-Rand

failed to produce evidence at trial to establish fault on the part of any other entities.

V. Wrongful Death Damage Awards.

In its final assignment of error, Ingersoll-Rand asserts the $750,000.00

award to each of Myra’s children for their individual wrongful death action was

excessive. Ingersoll-Rand does not challenge the trial court’s award of

$1,000,000.00 to Jimmy Williams, Sr.

This court in Raymond v. Government Employees Ins. Co., 09-1327, p. 3

(La.App. 3 Cir. 6/2/10), 40 So.3d 1179, 1190-91, writ denied, 10-1569

(La.10/08/10), 46 So.3d 1268, this court discussed the appellate review of

damages:

17 The supreme court recently reiterated the principles of appellate review of damages in Guillory v. Lee, 09-75, pp. 14-16 (La. 6/26/09), 16 So.3d 1104, 1116-1118:

It is well-settled that a judge or jury is given great discretion in its assessment of quantum, both general and special damages. Louisiana Civil Code article 2324.1 provides: “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74. This court has noted:

[T]he reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606, reh’g denied, 4/27/01 (quoting Canter v. Koehring, 283 So.2d 716, 724 (La.1973)) (superseded by statute on other grounds ). Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb an award on review. Youn v. Maritime Overseas Corp., et al., 623 So.2d 1257, 1261 (La.1993), reh’g denied, 10/7/93.

The role of an appellate court in reviewing a general damages award, one which may not be fixed with pecuniary exactitude, is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. This court has long held true to the following principle:

[b]efore a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.

18 Wainwright, 00-0492, p. 6, 774 So.2d at 74 (quoting Coco v. Winston Indus., Inc., 341 So.2d 332, 334 (La.1977) (internal citations omitted)). See also Miller v. Lammico, 07-1352, p. 28 (La.1/16/08), 973 So.2d 693, 711 (stating that an appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion and citing Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993)); Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993); Reck v. Stevens, 373 So.2d 498, 501 (La.1979). Furthermore, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. (citing Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978) and Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985)). Moreover, on review, an appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Perkins, 782 So.2d at 612 (citing Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93- 3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221). Reasonable persons frequently disagree about the measure of damages in a particular case. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Youn, 623 So.2d at 1261.

Specifically, wrongful death claims are meant to compensate the survivors

designated by La.Civ.Code art. 2315.2 for their own injuries arising from the loss

of the decedent. “The elements to consider in making an award of wrongful death

damages include loss of love and affection, loss of services, loss of support,

medical expenses, and funeral expenses.” Raymond, 40 So.3d 1191, citing Smith

v. Municipality of Ferriday, 05-755 (La.App. 3 Cir. 2/1/06), 922 So.2d 1222, writ

denied, 06-934 (La.9/29/06), 937 So.2d 860.

Ingersoll-Rand’s main objection to the amounts awarded to each of the

Williams’ children is that they were adults at the time of Myra’s death and not

minor children. Thus, Ingersoll-Rand argues the $750,000.00 wrongful death

damage awards made to the two minor children in Raymond, 40 So.3d 1179, and

19 the $2,500,000.00 wrongful death award made to a ten year old child for the death

of her mother in Rachal v. Brouillette, 12-794 (La.App. 3 Cir. 3/13/13), 111 So.3d

1137, writ denied, 13-690 (La.5/3/13), 113 So.3d 217, are distinguishable based on

that factor. While we agree awards given to minor children for the wrongful death

of a parent are typically higher than those given to adult children, that factor alone

does not necessarily render the awards in this case excessive.

All four children, as well as several other witnesses, testified that Myra was

the center of the Williams’ family. All family events and holiday gatherings were

usually held at Myra and Jimmy’s. The children testified that family gatherings

and even holidays together were much less frequent following Myra’s death. Both

Williams’ daughters testified that Mother’s Day, which in the past was a cause for

celebration, was now an extremely difficult day to endure.

Each child testified, in heartbreaking detail, regarding the loss they suffered

as a result of their mother’s death. The record was clear that Myra’s last few

months were extremely painful as tumors ravaged her body, breaking through her

rib cage and encasing her heart. Each child testified as to the difficulty of

watching their mother go from an energetic, healthy woman to someone bedridden

and in such excruciating pain that even Oxycontin provided no relief.

Each child also testified as to the extremely close relationship they had with

Myra. Both daughters testified they spoke with their mother every day either in

person or on the phone. Jimmy Williams, Jr., the oldest child, testified even on the

occasions when he was out of town working, he tried to call his mother every day.

When his mother became incapacitated due to her illness, Jimmy Jr. stopped

working and stayed home to care for her. He also stated he promised his mother he

would take care of his father after her death.

The facts in this case are especially tragic. As a result of their mother’s

battle with mesothelioma, the Williams’ children were forced to witness her

20 extremely painful and debilitating final few months before she lost her life. The

children were devastated by her death, and despite the trial being many years after

Myra’s death, their testimony indicated those feelings of loss were still palpable.

This court in Mathieu v. State, Department of Transportation and

Development, 598 So.2d 676, 682 (La.App. 3 Cir.), writ denied, 600 So.2d 665

(La.1992), noted that “Louisiana courts have often upheld large wrongful death

awards as reasonable in cases where the decedent and the surviving spouse and

minor children had extraordinarily close and loving relationships.” The fact that

the children in this case were adults does not negate the fact that this was an

extremely close and loving family that was devastated by Myra’s death.

After a thorough review of the record, although we find the awards rendered

to the Williams’ children may be on the high side, we cannot say the trial court

abused its vast discretion in rendering each child $750,000.00 as wrongful death

damages. Therefore, we will not disturb the trial court’s awards.

VI. Legal Interest.

Although not listed as an assignment of error in its original brief, a lengthy

portion of Ingersoll-Rand’s reply brief focuses on the fact the trial court’s

judgment did not specifically address legal interest. However, as Plaintiffs note,

although not mentioned in the trial court’s judgment, the trial court obviously

recognized the accrual of interest during the hearing when it raised Ingersoll-

Rand’s suspensive appeal bond from $5,500,000.00 (the amount of all awards

against Ingersoll-Rand) to $9,200,703.55. This was done pursuant to Plaintiffs’

challenge of the sufficiency of the appeal bond. Ingersoll-Rand complied with the

trial court’s ruling and did not pursue any writ with this court on that issue.

Ingersoll-Rand’s comments in its reply brief that the judgment did not award

judicial interest attempts to interject an issue not properly raised here. We take

liberty to note, however, when a judgment does not specifically state the words

21 “with interest from judicial demand,” such interest is automatically assessed

against the defendants by “operation of law.” Louisiana Revised Statutes 13:4203

states “[l]egal interest shall attach from date of judicial demand on all judgments

sounding in damages ‘ex delicto’ which may be rendered by any of the courts.”

(Emphasis added.) The courts of this state have long held the “attachment” occurs

by operation of law even if the court fails to include language in the judgment

saying so. As this court specifically found in Duplechain v. Jalili, 10-736 (La.

App. 3 Cir. 12/8/10) 52 So. 3d 1072, 1077, writ denied, 61 So. 3d 664 (La.

3/25/11), “[l]egal interest on judgments for damages in tort cases is an operation of

law. The interest attaches automatically until the judgment is paid regardless of

whether it was prayed for in the petition or mentioned in the judgment.”

Therefore, the fact the judgment did not specifically address legal interest is of no

moment as legal interest attaches by operation of law.

DECREE

For the foregoing reasons, the judgment of the lower court is affirmed in all

respects. All costs of this appeal are assessed to defendant-appellant, Ingersoll-

Rand Company.

22 NUMBER 16-839 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

PLACID OIL COMPANY, ET AL.

Conery, J., concurs in part, dissents in part, and assigns reasons.

I concur with the majority’s opinion affirming fault at 50% to Placid Oil and

50% to Ingersoll-Rand in the survival action. I respectfully dissent from the

majority’s decision to assess 100% fault to Ingersoll-Rand in the wrongful death

action. The evidence is clear that Myra Williams died from mesothelioma in 2003

caused by contact with asbestos from her husband’s work clothes while he worked

for Placid Oil. I agree with the reasoning of astute counsel for Ingersoll-Rand that

Mrs. Williams’ death was caused by the fault of both Ingersoll-Rand and Placid

Oil. If the fault of Placid Oil was a substantial factor causing Myra Williams to

contract mesothelioma, suffer, and die for purposes of her survival action, then the

trial court has already adjudicated causation and a 50% virile share reduction for

purposes of the wrongful death action should be assessed as well.

I understand able counsel for plaintiffs’ argument that the wrongful death

action is separate from the survival action and that for purposes of the survival

action, the law that applies is the law at the time of asbestos exposure.5 Placid

Oil’s virile share in the survival action was based on strict liability under

La.Civ.Code art. 2317 as the owner of premises causing its workers to be exposed

to ultra-hazardous substances, in this case, asbestos, primarily from Mr. Williams’

exposure to asbestos in the compressor room in the mid 1970s. The law at the time

5 Landry v. Avondale Industries, Inc., 03-3432 (La. 7/2/04), 877 So.2d 970. 23 of exposure in the 1970s had no requirement that proof of Placid Oil’s actual or

constructive knowledge of the hazard was necessary in order to recover survival

damages under La.Civ.Code art. 2317.

I also agree that the law in effect at the time of death applies to the wrongful

death action.6 Mrs. Williams died in 2003. Louisiana Civil Code Article 2317 was

amended in 1996 to add a negligence standard requiring, in this case, proof by a

preponderance of the evidence that Placid Oil as the plant owner/operator/

employer knew or should have known of the ruin, vice, or defect which caused

the damages and that Placid failed to exercise reasonable care to prevent the

damage. La.Civ.Code art. 2317.l.7 Plaintiffs specifically plead and proved at trial

that Placid Oil was the owner and operator of the oil and gas refinery and

processing facility in question, was the employer of Mr. Williams, and knew or

should have known of the hazardous exposure of its workers to asbestos, and took

no steps to warn or protect its employees and their families. Now, for the first time

on appeal, plaintiffs argue that somehow Placid Oil’s virile share responsibility in

the wrongful death action should be eliminated.

Mr. Williams was undeniably exposed to asbestos from Placid Oil’s

compressors in Placid Oil’s compressor room where ten massive Ingersoll-Rand

compressors with seventeen (17) turbo chargers insulated with asbestos were

located. Yet the trial judge failed to make any specific findings or even discuss

Placid Oil’s liability for wrongful death damages under La.Civ.Code art. 2317.1 as

amended and in effect at the time of Mrs. Williams’ death in 2003 in its reasons for

judgment, stating only, “Therefore, the Court finds that the only party at fault

6 See Landry, 877 So.2d 970; Walls v. American Optical Corp., 98-0455 (La. 9/8/99), 740 So.2d 1262. 7 Damage caused by ruin, vice, or defect in things. The owner or custodian of a thing is answerable for damages occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. Added by Acts 1996, 1st Ex.Sess., No. 1, § 1, eff. April 16, 1996. 24 in causing Myra Williams mesothelioma is Ingersoll-Rand. Ingersoll-Rand

had a responsibility to provide adequate warnings and to recognize inherent

dangers, but Ingersoll-Rand did nothing.” (Emphasis added.) This after the

trial court had just found that Placid Oil was 50% at fault in causing Mrs. Williams

to contract mesothelioma and awarded Mr. Williams and the four adult children

damages of $3,000,000.00 for her pre-death suffering in the survival action.

I would submit that as Mr. Williams’ employer and owner of the oil refinery

and plant facilities, Placid Oil had an even greater duty than Ingersoll-Rand, who

sold the compressors to Placid, to warn and protect its employees, as it clearly had

direct knowledge of the hazards and dangers of asbestos exposure in the

compressor room. As a “sophisticated user”8 of the known asbestos containing

components at its plant, Placid Oil knew or should have known of the potential for

secondary exposure from asbestos on its employees’ work clothes, had a specific

duty to warn and protect against such hazardous exposure, and did nothing.

In exonerating Placid of any liability in the wrongful death action, the

majority opinion concludes, “Ingersoll-Rand failed to introduce any evidence of

actual or constructive knowledge on Placid Oil’s part concerning any asbestos

dangers posed by Ingersoll-Rand’s compressors to its employees.” (Emphasis

added). The evidence in the record shows just the opposite. The record is replete

with uncontradicted evidence of Placid Oil’s fault. Indeed, plaintiffs made

specific allegations of Placid Oil’s fault and negligence in their detailed petition,9

and then went on to introduce uncontradicted evidence at trial in support of those

allegations. Almost all the evidence on this issue came from plaintiffs’ own

experts and witnesses.

8 A sophisticated user is defined as one who is “familiar with the product,” Hines v. Remington Arms Co., Ind., 94-455, p. 10 (La. 12/8/94), 648 So.2d 331, 337, or as one who “possesses more than a general knowledge of the product and how it is used.” Asbestos v. Bordelon, Inc., 96-525, p. 44 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 955. As a result of their familiarity with a product, sophisticated users are presumed to know the dangers presented by the product; hence, there is no duty to warn them. Hines, 648 So.2d 331. 9 See plaintiffs’ petition paragraphs 17-24. 25 As an intermediate appellate court, our duty is to review the evidence in the

entire record under the manifest error, clearly wrong standard. Hayes Fund for the

United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC,

14-2592 (La. 12/8/15), 193 So.3d 1110. In Hayes, the supreme court offered clear

guidance as to the role of the appellate court in a manifest error review. Great

deference is to be given to the trial judge’s factual findings. We are cautioned not

to re-weigh the evidence and “where there are two permissible views of the

evidence, the fact finder’s choice between them cannot be clearly wrong.” Hayes,

193 So.3d at p. 1116. However, here the trial judge made no “credibility

decisions,” did not “weigh the evidence,” and did not make a “conscious choice

between two permissible views of the evidence” on the issue of whether Placid Oil

“knew or should have known” of the asbestos exposure to its workers at its facility

and failed to exercise reasonable care to protect its workers and their families, as

was its duty under the law. La.Civ.Code art. 2317.1; Hayes, 193 So.3d at p. 1116.

Based on a review of the entire record, I would find that the trial judge was

“manifestly erroneous” and “clearly wrong” in failing to apply the uncontradicted

and unrebutted evidence in the record and find that Placid Oil “knew or should

have known” of the asbestos exposure to its workers, and yet failed to take any

steps to protect or warn its employees and their families, specifically Jimmy

Williams, Sr. and Myra Williams, his wife.

The deposition testimony of Prentiss McLeod, previously identified as a

Placid Oil superintendent at the time Mr. Williams worked in Placid Oil’s

compressor room in the mid 1970s, conclusively establishes that Placid Oil had

knowledge that insulation around the turbo chargers on each of Ingersoll-Rand’s

ten compressors contained asbestos, that each compressor had almost thirty gaskets

made of asbestos, and that exposure to asbestos was hazardous. Mr. McLeod

26 testified, “Those ten engines we had in the plant, those Ingersoll-Rands, had

asbestos on the turbo chargers and the exhaust piping.”

He went on to testify:

Q Okay. You said a couple of times that that was asbestos insulation.

A Yes.

Q How do you know that? I’m not saying you’re wrong - -

A Right, at that time, asbestos was all you got for hot temperature. I’m talking about back in the mid to late 1960’s.

Mr. McLeod also confirmed that as early as the 1970s, Placid Oil was aware

of the Occupational Safety and Health Administration (OSHA) regulations

concerning asbestos exposure:

Q You were aware that OSHA has regulations for handling asbestos

Q When did you first become aware of that?

A Oh, at one of our safety meetings back before that addition out there. I’d say probably the late 1970’s. It might have been a little before then. It couldn’t have been much before then.

Q Was it part of your job, whatever it was, whenever you learned about the - - because you’ve been Superintendent out there, whenever you learned about asbestos regulations, was part of your job to see that the workers followed these regulations?

A Right.

Q It was?

A Right. And do not touch anything with asbestos on it, you know, without proper clearance, and et cetera.

The trial judge made a specific factual finding that “Prentice McLeod was

the superintendent while Mr. Williams, Sr., was a compressor operator. McLeod

described the compressors as having almost thirty gaskets on each compressor that

were made of asbestos.” Mr. Williams was exposed to asbestos from the asbestos

27 insulation around the turbo chargers on the compressors and was further exposed

when the asbestos gaskets were changed. The trial court’s written reasons go on to

state its clear factual finding that “McLeod knew that the insulation used on the

compressors contained asbestos.”

Mr. Williams’ unrebutted testimony confirmed that there were seventeen

(17) turbo chargers on the compressors and that the exhaust on each was insulated

with asbestos. No warnings about asbestos hazards were provided to him by either

Ingersoll-Rand or Placid Oil:

Q. Did anyone tell you that asbestos was hazardous?

A. Not that I remember.

Q. Either Ingersoll-Rand or Placid?

A. Neither one.

Q. Did anyone ever tell you that the uh, that when you were handling asbestos it was creating dust and that dust was hazardous?

A. No sir.

Dr. Victor Roggli, the plaintiffs’ world renowned expert in pathology with

particular expert knowledge of the effect of asbestos on the human body, testified

that in 1970 OSHA enacted an “emergency act” to warn everyone about the

dangers of asbestos exposure. Congress enacted enabling legislation in 1971. Oil

and gas refineries and facilities such as Placid Oil had a non-delegable duty to

protect their employees from asbestos exposure and follow the law as adopted by

congress. Among those OSHA regulations were the requirements that employers

monitor asbestos exposure and require that work clothes be segregated in order to

prevent contaminated work clothes from being taken home, the exact situation

which caused Mrs. Williams to contract mesothelioma from the asbestos on her

husband’s work clothes.

28 Uncontradicted testimony at trial established that Mr. Williams worked for

Placid Oil from 1966–1995, and worked in the compressor room in the mid 1970s,

approximately 1973–1978, with constant exposure to asbestos dust and fibers from

the insulation around Ingersoll-Rand compressors. Mr. Williams, as well as

several other witnesses, testified that the huge compressors vibrated and asbestos

dust from the compressors was clearly visible in the air in the area where Mr.

Williams was working. In fact, one of Mr. Williams’ jobs was to sweep and clean

up the dust, causing the fibers to once again become airborne, according to the

uncontradicted evidence at trial. Dr. Roggli confirmed that the presence of visible

asbestos fibers in the air meant that concentrations of asbestos exceeded all safety

standards. Yet Placid failed completely to provide monitors, provide warnings and

protect its workers. Neither Mr. McLeod, Mr. Williams’ supervisor, nor anyone

else at Placid Oil informed Mr. Williams of the dangers of asbestos exposure or the

dangers of secondary exposure until after Mrs. Williams became ill and was

diagnosed with mesothelioma.

Mr. Frank Parker, III, the plaintiffs’ own expert in the field of industrial

hygiene, also discussed the employer’s non-delegable duties under the Walsh

Healey Act adopted in the 1950s and OSHA regulations adopted in 1970. He

further testified that in 1952 the Louisiana Legislature recognized the potential

dangers of asbestos exposure and made asbestosis a compensable claim under the

Louisiana Worker’s Compensation Act. Especially in light of the change in the

law governing worker’s compensation and the OSHA regulations requiring

compliance by employers whose employees were exposed to asbestos, Placid Oil

had a duty to know and at the very least should have known of the dangers of

asbestos exposure, both as an employer as well as the owner/operator of an oil and

gas refinery and facility known to contain asbestos. Yet no notice, warnings or

proper procedures were put in place to protect Placid Oil’s workers or their

29 families. Placid Oil was certainly a “sophisticated user” of the machinery at its

plant, having participated in the design and construction of the plant, including

specifically the placement and use of the large Ingersoll-Rand compressors that

were vital to the plant’s operation, with seventeen (17) turbo chargers insulated

with asbestos and with thirty asbestos gaskets on each.

The testimony of Mr. Bill Frazier, plaintiff’s coworker who worked for

Placid Oil from 1967 until about 1980, confirmed that he and the other workers

were never warned by Placid Oil of the known dangers of asbestos exposure at any

formal safety meetings or otherwise. Mr. McLeod, the supervisor in charge, made

that point clear in his testimony. Though required by OSHA regulations, Placid

Oil workers were not issued company coveralls or uniforms and wore their own

clothes to work and back home after work. The workers were never instructed that

they should change their clothes or take showers before leaving work at the Placid

Oil facility. The levels of asbestos exposure were never monitored by either

workers or supervisors, and the workers were never issued or told to wear

respirators when working around asbestos insulation. No warnings were given to

family members of the workers about the potential for secondary asbestos exposure

from the employees and their work clothes.

Mr. Williams testified in like manner at trial, as did Jimmy Williams, Jr.

The evidence was uncontradicted that Mrs. Williams personally laundered all of

her husband’s work clothes and was given no warnings whatsoever by Placid Oil.

Ingersoll-Rand cites Warren v. Sabine Towing and Transp. Co., Inc., 01-573

(La.App. 3 Cir. 10/30/02), 831 So.2d 517, writs denied, 02-2926, 02-2927, 02-

2936 (La. 2/14/03), 836 So.2d 116, 117, as supportive of its position that its

apportionment of fault should be reduced to no more than 50% in the wrongful

death claim. In Warren, as in this case, a survival action and wrongful death action

were tried over the decedent’s battle with acute myelogenous leukemia as a result

30 of alleged exposure to benzene during his employment. After a bench trial, the

trial court assigned 33% fault to the employer and the balance to other entities in

the survival action. In the wrongful death action, no fault was assigned to the

employer. In a well-reasoned decision, this court reversed and found the employer

liable for 40% of fault in both the survival action and wrongful death action.

Louisiana Civil Code article 2323(A) governs the application of comparative

fault for a wrongful death claim and states:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss. (Emphasis added.)

Placid Oil should be assigned a fifty (50%) percent virile share of the fault in

the wrongful death action and it was manifestly erroneous for the trial judge to fail

to do so. Based on the entire record before us, the evidence is clear and it is

uncontradicted, having come from plaintiffs’ own experts and witnesses, that

Placid Oil had the requisite actual knowledge of the dangers of asbestos exposure

to Mr. Williams, especially in the compressor room, failed to exercise reasonable

care to prevent Mr. Williams and his spouse from hazardous exposure to asbestos,

and thus should be held liable for a 50% virile share of the wrongful death

damages, along with Ingersoll-Rand, pursuant to La.Civ.Code art. 2317.1. At the

very least, Placid Oil “should have known” of the asbestos hazards and did nothing

to warn its employees and their families. Since Placid Oil has been released in

31 bankruptcy,10 its virile share of liability must be offset in the judgment against

Ingersoll-Rand under La.Civ.Code art. 2323(a), just as was done in the survival

action.

QUANTUM

The quantum awards in this case are likewise reviewed under the manifest

error “clear abuse of discretion” standard as stated in the Louisiana Supreme Court

decision in Youn v. Maritime Overseas Corp., 623 So.2d 1257, (La. 1993), and

Hayes, 193 So.3d 1110. Ingersoll-Rand also appealed the trial judge’s decision to

award each of the four adult children of Myra Williams $750,000.00 in wrongful

death damages for the loss of their mother.11 Ingersoll-Rand did not appeal the

amount of the $3,000,000.00 survival damages award brought by Mr. Williams and

the adult children for Myra Williams’ pre-death suffering, or the amount of the

$1,000,000.00 wrongful death award to Mr. Williams.

I would find that the $750,000.00 wrongful death award to each of the adult

children is manifestly erroneous, especially in light of the generous survival action

damages which Mr. Williams and the four children inherited after Ms. Williams’

death. The wrongful death award to the adult children is three times the average

award in cases of this type, as discussed in detail in Ingersoll-Rand’s brief.12

While I agree with plaintiffs’ counsel that damages should be set individually and

not by simply reviewing “average” awards, and that many of the awards in the

$250,000.00 range for wrongful death damages for adult children are somewhat

dated and would be higher in today’s dollars, I would find that awarding damages

10 In Re Placid Oil Co. Bankruptcy No. 86-33419-SGJ-11. Adversary No. 09-03356-SGJ. 463 B.R. 803 (2012). 11 Mrs. Williams was 59 when she died on August 9, 2003. The names and ages of her adult children when she died were: Jimmy Sloan Williams, age 40, Dalton Glen Williams, age 37, Jeanette Williams Shows, age 35, and Gwen Williams Hernandez, age 26. 12 See e.g., Thomas v. A.P. Green Indus. Inc., 2005-1064 (La.App. 4 Cir. 5/31/06), 933 So.2d 843; Roberts v. Owens-Fiberglass, 2003-0248 (La.App. 1 Cir. 4/2/04), 878 So. 2d 631; Mathieu v. DOTD, 598 So.2d 676 (La.App. 3 Cir. 1992); Warren v. Sabine Towing, 2001-0573 (La.App. 3 Cir. 10/30/02), 831 So.2d 517; Talbert v. Evans, 2011-1096 (La.App. 4 Cir. 3/7/12); 88 So.3d 673.

32 to adult children by a factor of three times the average of most previous awards

affirmed in the jurisprudence is a leap too far and too fast.

I agree with counsel for Ingersoll-Rand that the adult children cannot

recover for their own mental anguish as they watched their mother suffer and die.

The adult children have no right under the law to sue for such a claim, absent

circumstances not present here.13 Much of their trial testimony focused on that

issue. As previously stated, the adult children have already inherited, along with

their father, the generous $3,000,000.00 survival damage claim of their mother for

her own pre-death suffering.

The wrongful death claim accrues at the moment of death and is intended to

compensate for the suffering of the named beneficiaries after the decedent’s

death.14 In its reasons for judgment on the issue of the adult children’s’ wrongful

death damages, the trial judge said only:

Every child testified that Ms. Williams was the center of their universe. She woke them each morning with a cup of coffee and a smile while growing up. She was there when their children were born. She kept her grandchildren every day. She cooked supper every night and everyone congregated at her home even after they were grown and had moved out. The court awards each child $750,000.00 for the wrongful death of their mother.

The elements of damages in the wrongful death claim at issue here are loss

of love and affection, companionship, guidance and loss of services.15 Funeral

expenses are recoverable but were not mentioned by the trial court and do not

appear to be an issue on appeal.

While I agree with esteemed counsel for plaintiffs that these adult children

each had a very close and loving relationship with their mother and are entitled to a

fair and just award, I would find that the award of $750,000.00 to each in this case

13 La.Civ.Code art. 2315.6. 14 Barbara Raymond v. Gov. Employees Ins. Co., 09-1327 (La.App. 3 Cir. 6/2/10), 40 So.3d 1179, writ denied, 10-1569 (La. 10/8/10), 46 So.3d 1268. 15 Wanda Baker Smith, et al. v. The Municipality of Ferriday, 05-755 (La.App. 3 Cir. 2/1/06), 922 So.2d 1222, writ denied, 06-934 (La. 9/29/06), 937 So.2d 860. 33 is unreasonably high, is not supported by the record and is manifestly erroneous.

While respecting the enormity of their loss and the emotional pain each continues

to experience, after reviewing the entirety of the testimony of each, as well as all

the evidence in the record on this issue, I would hold that the highest award that is

reasonably supported by the evidence in the record is $500,000.00 to each of the

adult children.16

CONCLUSION

I would affirm the trial judge’s finding that Ingersoll-Rand and Placid Oil

are each 50% at fault in the survival claim, and that Ingersoll-Rand is entitled to a

virile share credit for Placid Oil’s fault in the survival action. I would reverse the

trial judge in the wrongful death claim and assess a 50% virile share fault to Placid

Oil and 50% virile share to Ingersoll-Rand in the wrongful death claim. I would

reduce the quantum award in the wrongful death claim to $500,000.00 to each of

the four adult children. I would assess 50% of the costs of appeal to plaintiffs and

50% to Ingersoll-Rand. In all other respects, I would concur with the majority to

affirm the trial judge’s decision.

16 In Chaisson v. Avondale Indus., Inc., 05-1511 (La.App. 4 Cir. 12/20/06); 947 So.2d 171, an award of $562,000.00 each for two adult children was affirmed with the comment that the award was “a little higher than some previous awards”. And in Oddo v. Asbestos Corp., 04-0004 (La App. 4 Cir., 8/20/15), 173 So.3d 1192, a $600,000.00 jury award for each of two adult children was not challenged on appeal. Though $750,000.00 wrongful death damages to each child was affirmed by our court in Raymond, supra, that case involved four minor children and not adult children as here. 34 16-839

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

Savoie, J., concurs in part, dissents in part, and assigns reasons.

In connection with the survival action, I concur with the majority’s opinion

affirming the trial court’s allocation of 50% of the fault to Ingersoll-Rand and 50%

of the fault to Placid Oil. I also concur with the majority’s opinion as to quantum.

However, I respectfully dissent from the majority’s opinion inasmuch as it affirms

the trial court’s allocation of 100% fault to Ingersoll-Rand in connection with the

wrongful death claim.

With respect to the wrongful death claim, I agree that the law applicable to

the wrongful death claim is the law in effect at the time of Mrs. Williams’ death17,

and therefore La. Civ.Code art. 2317.118 and principles of comparative fault are

applicable in determining Ingersoll-Rand’s liability. However, I would find the

trial court manifestly erroneous in failing to allocate any percentage of fault to

Placid Oil. The deposition testimony of Prenitiss McLeod, a Placid Oil plant

supervisor conclusively establishes that Placid Oil had knowledge at the time Mr.

17 See, Walls v. American Optical, 98-455 (La. 9/8/99), 740 So.2d 1262; See also, Cole v. Celotex, 599 So.2d 1058 (La.1992). 18 La.Civ.Code art. 2317.1 states in part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. 35 Williams worked in the compressor room in the 1970’s that the Ingersoll-Rand

compressors contained asbestos. The record is further replete with evidence

establishing that Placid Oil knew, or should have known, of the potential of

secondary asbestos exposure from its /employees’ work clothes19, yet it failed to

provide adequate warnings or protections. Therefore, Placid Oil should have been

allocated a percentage of fault.

When there is a finding that the trial court erred in apportioning fault, the

fault allocation should be adjusted “only to the extent of lowering or raising it to

the highest or lowest point respectively which is reasonably within the trial court’s

discretion.” Clement v. Fry, 95-1119, pp. 7-8 (La. 1/16/96), 666 So.2d 607, 611.

Because of the testimony suggesting that Ingersoll-Rand provided no warnings

whatsoever with respect to its compressors that were installed at Placid Oil, it is

my opinion that 25% of the fault is the lowest reasonable percentage of fault that

the trial court could have allocated to Placid Oil, and therefore, I would reduce

Ingersoll-Rand’s liability for the wrongful death claim to 75%.

19 See for example, the testimony of Plaintiff’s expert in industrial hygiene, Frank Parker, III, who indicated that OSHA regulations pertaining to asbestos became effective in 1970 or 1971, and that the regulations required “steps to be taken by an employer to protect its employees from potential exposure to asbestos[,]” including periodic employee monitoring, protocols to prevent or limit exposure to asbestos, and requiring that “work clothes” and “street clothes” be kept separate, etc. Mr. Parker also testified that as of approximately 1952, asbestosis was a compensable disease under workers’ compensation laws. Similarly, Plaintiffs’ pathology expert, Dr. Roggli, testified as to the enactment of OSHA regulations in 1970 or 1971 that alerted everyone to the dangers of asbestos. Additionally, Mr. McLeod testified as to his knowledge of OSHA regulations concerning asbestos in the 1970’s. 36