Millard Clark v. Dixie Carriers, Inc.

• Court: Louisiana Court of Appeal
• Decided: August 28, 2023
• Docket: 2023-CA-0049
• Status: Published

Opinion

MILLARD CLARK * NO. 2023-CA-0049

VERSUS * COURT OF APPEAL DIXIE CARRIERS, INC. * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-03891, DIVISION “D” Honorable Nakisha Ervin-Knott, Judge ****** Chief Judge Terri F. Love ****** (Court composed of Chief Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Tiffany Gautier Chase)

Jefferson R. Tillery Jones Walker LLP 201 St. Charles Avenue, Suite 4800 New Orleans, LA 70170

AND

Justin J. Marocco Jones Walker LLP 445 North Blvd, Suite 800 Baton Rouge, LA 70802

COUNSEL FOR THIRD-PARTY DEFENDANT/APPELLEE, SETTOON TOWING LLC

J. Dwight LeBlanc, III R. Patrick Ray FRILOT LLC 1100 Poydras Street, Suite 3700 New Orleans, LA 70163-3700

COUNSEL FOR DEFENDANTS/APPELLANTS, KIRBY INLAND MARINE, LP AND KIRBY CORPORATION

APPEAL DISMISSED August 28, 2023 TFL Plaintiff, Millard Clark,1 filed suit, seeking damages from carcinogenic JCL exposure, which caused lung cancer, while working as a Jones Act seaman for TGC Kirby Inland Marine, LP. Kirby claimed indemnity and/or contribution from

Settoon Towing LLC, as a third-party defendant.

Settoon filed a Motion for Summary Judgment contending that there was no

evidence that Mr. Clark was exposed to carcinogens while working with Settoon

and that Settoon did not substantially cause or contribute to Mr. Clark’s lung

cancer. The trial court granted Settoon’s Motion for Summary Judgment,

dismissing Kirby’s claims with prejudice.

Kirby filed a Motion for Appeal and the appeal was lodged in January 2023.

On appeal, Kirby raised the following two assignments of error:

1. Whether the trial court properly granted Settoon’s Motion for Summary Judgment, seeking a dismissal of Kirby’s Third-Party Demand, given that conflicting testimony and evidence existed regarding Settoon’s fault for plaintiff, Millard Clark’s development of lung cancer; and 2. Whether a Motion for Summary Judgment may be granted based upon a witness’ attempt to retract sworn testimony he previously provided.

1 During the pendency of the litigation, Mr. Clark passed away and family members were substituted as party plaintiffs.

1 Once the briefing schedule was completed and the matter docketed, Settoon

filed an Unopposed Motion to Dismiss Appeal. The motion provided that “Settoon

and Kirby advise the Court that all matters are resolved and they wish the Court to

dismiss the appeal and remove the oral argument and matter from the docket.”

Settoon attached an e-mail from Kirby stating: “As discussed, please proceed with

filing an unopposed motion to dismiss the appeal. Thanks, Patrick.”

Accordingly, the Unopposed Motion to Dismiss Appeal is granted.

APPEAL DISMISSED