McCarthy v. Entergy Gulf States, Inc.

82 So. 3d 336, 11 La.App. 3 Cir. 600, 2011 WL 6059222, 2011 La. App. LEXIS 1467
CourtLouisiana Court of Appeal
DecidedDecember 7, 2011
DocketNo. 11-600
StatusPublished
Cited by6 cases

This text of 82 So. 3d 336 (McCarthy v. Entergy Gulf States, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCarthy v. Entergy Gulf States, Inc., 82 So. 3d 336, 11 La.App. 3 Cir. 600, 2011 WL 6059222, 2011 La. App. LEXIS 1467 (La. Ct. App. 2011).

Opinion

PETERS, J.

LThe defendant, Entergy Gulf States, Inc. (formerly Gulf States Utilities Company but hereinafter referred to as Enter-gy/Gulf States),1 appeals a trial court judgment finding that two of its retired workers suffered occupational hearing losses as a result of on-the-job noise exposure over the length of their careers working for Entergy/Gulf States, and awarding the two workers monetary damages. For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

The two employees at issue in this litigation are Alexander Valerie, Jr. and Milton Pharr.2 Both were employed by Enter-gy/Gulf States and worked at its Nelson Station facility in Westlake, Calcasieu Parish, Louisiana, during their careers. En-tergy/Gulf States is a business providing electrical services to the general public and its Nelson Station facility generates elec[340]*340tricity. The turbines, compressors, fans, boilers, and other equipment/tools used in the Nelson Station facility’s operation generates significant noise levels in the various sections of the facility.

Mr. Valerie worked for thirty-four years and retired in 1986; and Mr. Pharr worked for thirty-six years before his retirement in 1995. Both men brought this action against Entergy/Gulf States seeking to recover monetary damages for an occupational hearing loss they claim to have suffered as a result of their employment with Entergy/Gulf States. Mr. Valerie died on October 20, 2007, and, thereafter, his wife and children were substituted as plaintiffs in this action.

bEntergy/Gulf States does not seriously contest the fact that each individual plaintiff sustained a hearing loss during his years of employment. Instead, in both its answer and other pleadings filed in response to the plaintiffs’ petition, Enter-gy/Gulf States asserted a number of defenses including: (1) that any hearing loss suffered by either plaintiff was not related to his employment situation; (2) that their claims had prescribed; and (3) that their exclusive remedy for any occupational hearing loss was to be found in the Louisiana Workers’ Compensation Act.

Following a three-day bench trial, the trial court took the issues under advisement. In its written reasons for judgment, the trial court concluded that the plaintiffs had suffered a hearing loss caused by exposure to loud noise while working at the Nelson Station facility; that their claims had not prescribed based on the application of the doctrine of contra non valentem; and that because the hearing losses sustained by the plaintiffs were gradual in nature, their remedy was in tort and not under the Louisiana Workers’ Compensation Act. The trial court awarded Mr. Valerie’s wife and children a total of $50,000.00 in general damages and awarded Mr. Pharr $50,000.00 in general damages and $28,517.56 in present and future medical damages.

After the trial court reduced its written reasons to judgment form, Entergy/Gulf States perfected this appeal, raising six assignments of error:

1. The district court committed manifest error in concluding that the exceptional and strictly construed doctrine of contra non valentem should be applied to these facially prescribed claims.
2. The district court committed manifest error in finding that plaintiffs met their burden of proving causation.
3. The district court committed legal error in determining that the plaintiffs’ claims for occupational hearing loss were not barred by the exclusivity provision of the Louisiana Workers’ Compensation Act.
|a4. The district court committed legal error in failing to apply contributory negligence principles to plaintiffs’ claims and in failing to further determine that plaintiffs’ contributory negligence barred any recovery in this case.
5. The district court abused its discretion in awarding $50,000 in general damages to a plaintiff whose own testimony confirmed that he had sustained no damages.
6. The district court erred in awarding costs to plaintiffs because plaintiffs’ claims should have been denied for the reasons cited above and thus costs should be awarded to defendant/appellant.
OPINION
Scope of Review
The scope of review of factual findings of the trial court is well settled.
[341]*341[A] court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and 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 .... Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. In applying the manifestly erroneous— clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations and footnote omitted). The manifest error/clearly wrong standard also applies to the trial court’s factual findings when the testimony of expert witnesses differ. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

We review an award of damages under the abuse of discretion standard, and in doing so, we must recognize that “the discretion vested in the trier of fact is ‘great,’ and even vast.” Youn v. Maritime Overseas Corp., 628 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). That being the case, “an appellate court should rarely disturb an award of general damages.” Id.

\4Factual Background

Much of the factual background in this litigation is not in dispute. Specifically, there is no dispute as to the fact that both Mr. Valerie and Mr. Pharr sustained a hearing loss between the time they went to work with Entergy/Gulf States and their retirement. Additionally, it is undisputed that aspects of the work environment at the Nelson Station facility generate noise levels which exceed the safety limits for an unprotected employee.

The record also establishes that when Mr. Valerie and Mr. Pharr went to work for Entergy/Gulf States, the issues of industrial noise and employee hearing loss were not even points of discussion within the employer/employee relationship at the Nelson Station facility. Despite the fact that industrial employers had been well aware of the connection between employee hearing loss and industrial noise since the 1950s, it was not until the implementation of the Occupational Safety and Health Administration (OSHA) standards and directives in the early 1970s, that employers, including Entergy/Gulf States, expressed any public recognition of the problem.

The OSHA standards and directives required that industries monitor the workplace to assess noise exposures and, if the noise levels exceeded safe levels, to implement steps to protect individual workers. These steps included mandating the wearing of protective head gear under certain conditions.

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82 So. 3d 336, 11 La.App. 3 Cir. 600, 2011 WL 6059222, 2011 La. App. LEXIS 1467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarthy-v-entergy-gulf-states-inc-lactapp-2011.