Samuel Alexander v. Thiokol Corporation

• Court: Louisiana Court of Appeal
• Decided: February 2, 2005
• Docket: CA-0004-1215
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

04-1215

SAMUEL ALEXANDER, ET AL.

VERSUS

THIOKOL CORPORATION, ET AL.

************

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA, NO. 91,528, HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

MICHAEL G. SULLIVAN JUDGE

Court composed of John D. Saunders, Marc T. Amy, and Michael G. Sullivan, Judges.

REVERSED AND REMANDED.

C. Luke Edwards Attorney at Law Post Office Box 3483 Lafayette, Louisiana 70502 (337) 233-9995 Counsel for Plaintiffs/Appellants: Samuel Alexander, et al.

Patrick J. Hanna Rabalais, Hanna & Hebert, LLC 701 Robley Drive, Suite 210 Lafayette, Louisiana 70503 (337) 981-0309 Counsel for Defendants/Appellees: Nelson P. Stelly Sidney Martin Vernon L. Langlinais Scott R. Bickford Martzell & Bickford 338 Lafayette Street New Orleans, Louisiana 70130 (504) 581-9065 Counsel for Plaintiffs: Joseph Davis, et al.

Edward P. Landry Landry & Watkins Post Office Drawer 12040 New Iberia, Louisiana 70562-2040 (337) 364-7626 Counsel for Defendant: Continental Casualty Company

Stephen Porter Hall Phelps Dunbar, L.L.P. 365 Canal Street, Suite 2000 New Orleans, Louisiana 70130-6534 (504) 566-1311 Counsel for Defendant: Certain Underwriters at Lloyd’s London

Richard M. Simses Abbott, Simses, etc. 1360 Post Oak Blvd., #1700 Houston, Texas 77056 (713) 627-9393 Counsel for Defendant: The Home Insurance Company

Scott C. Seiler Liskow & Lewis 701 Poydras Street, Suite 5000 New Orleans, Louisiana 70139-5099 (504) 581-7979 Counsel for Defendants: Morton Salt Company Morton Thiokol Morton Chemical Company

Gordon P. Wilson Lugenbuhl, Wheaton, Peck, Rankin & Hubbard 601 Poydras Street, Suite 2775 New Orleans, Louisiana 70130 (504) 568-1990 Counsel for Defendant: Travelers Casualty & Surety Company Kyle P. Polozola Liskow & Lewis Post Office Box 52008 Lafayette, Louisiana 70505 (337) 232-7424 Counsel for Defendants: Morton Thiokol Morton Salt Company Morton Chemical Company SULLIVAN, Judge.

The issue presented by this appeal is whether Plaintiffs’ suit against their

employer for injuries sustained from exposure to asbestos and silica interrupted

prescription for similar claims made against the employer’s executive officers, who

were added as Defendants over three years after the filing of the original suit. The

trial court sustained the executive officers’ exception of prescription, and Plaintiffs

have appealed. For the following reasons, we reverse and remand.

Procedural Background

On July 9, 1999, numerous Plaintiffs filed suit against Thiokol Corporation

(Thiokol), individually and as successor to various Morton-owned companies, and

Lloyd’s of London (Lloyd’s), as the alleged insurer of Thiokol and its unnamed

executive officers who were not sued. Lloyd’s was subsequently dismissed upon

discovery that it did not provide coverage as alleged. On July 8, 2000, the attorney

who originally filed suit, Luke Edwards, withdrew as counsel of record for a number

of Plaintiffs, who were later represented by the firm of Martzell and Bickford. Both

sets of Plaintiffs then filed supplemental and amending petitions naming the

executive officers and their alleged insurers, with the Edwards Plaintiffs filing on

August 9, 2002, and Martzell Plaintiffs filing on September 13, 2002. On August 4,

2003, the executive officers filed the peremptory exception of prescription at issue

in this appeal. That exception concerns only the Edwards Plaintiffs.

On August 20, 2003, the trial court signed a judgment dismissing the claims

of both the Martzell and Edwards Plaintiffs against Thiokol on an exception of no cause of action, finding that their exclusive remedy was in workers’ compensation.1

However, this court reversed that judgment in Alexander v. Thiokol Corp., 04-625

(La.App. 3 Cir. 11/10/04), 887 So.2d 685, after concluding that further information

was needed to make that determination. Also on August 20, 2003, the trial court

granted the executive officers’ exception of prescription.

Discussion

On appeal, Plaintiffs argue that their negligence action against Thiokol was

brought in the proper court and that the executive officers are solidarily liable with

Thiokol based upon the supreme court’s definition of that principle in Williams v.

Sewerage & Water Board of New Orleans, 611 So.2d 1383 (La.1993). Alternatively,

if their cause of action is found to be only for workers’ compensation benefits, then

Plaintiffs argue that their suit, which was filed in district court rather than in the

Office of Workers’ Compensation, nonetheless interrupted prescription because one

solidary obligor, Thiokol, was timely served with process. Plaintiffs also argue that

their amending petition adding the executive officers and their alleged insurers relates

back to the filing of the original petition under La.Code Civ.P. art. 1153.

In Richard v. Jefferson Davis Nursing Home, 02-527, p. 5 (La.App. 3 Cir.

10/30/02), 829 So.2d 1152, 1155 (quoting Lewing v. Sabine Parish Police Jury,

95-630, p. 3 (La.App. 3 Cir. 11/2/95), 664 So.2d 598, 599-600), we stated:

The burden of proof is normally on the party pleading prescription. If on the face of the petition it appears that prescription has run, the burden shifts to the plaintiff to prove a suspension or interruption of the prescription. If the plaintiff’s basis for claiming

1 In that judgment, the Martzell Plaintiffs are identified as Joseph Davis, Danny Dupre, Lawrence Galentine, and John Thibeaux, and the Edwards Plaintiffs are identified as Harold Antoine, Lawrence Chennette, Roland Comeaux, Alvin Crosby, Sr., Joyce Gibson, Lester Johnson, Brian Jones, Frank Laskowski, Charles Loston, Sherry Matthews, Ephram Mitchell, Laura Fay Nicholas, and Joseph Prince.

2 interruption of prescription is solidary liability between two or more parties, then the plaintiff bears the burden of proving that solidary relationship.

Where plaintiff’s allegations in the petition and amending petition have not been controverted at a hearing on the exception of prescription, the court must look to the petition to see whether plaintiff has carried the burden of proof showing that prescription was interrupted on the basis of solidary liability between the parties, and the test is whether the alleged facts, if accepted as true, are sufficient on their face to establish that the timely sued defendant and untimely sued defendants are solidarily liable.

In granting the executive officers’ exception of prescription, the trial court

found that there can be no solidarity between the officers and the employer “because

there is no viable cause of action under Louisiana law for asbestos claims against an

employer such as Thiokol.” The trial court further stated: “The executive officers

cannot be solidarily liable with the employer for such claims since such claims do not

exist against an employer.” The trial court also found that, even if solidarity existed,

the suit was filed in a court of incompetent jurisdiction, and therefore, only

interrupted prescription against the Defendant served, the employer, under

La.Civ.Code art. 3462.

In granting this exception, the trial court relied heavily on its earlier dismissal

of Thiokol on the grounds that Plaintiffs failed to state a cause of action in tort. In

reversing that ruling, this court in Alexander, 887 So.2d at 689, recognized that, under

Austin v. Abney Mills, Inc., 01-1598 (La. 9/4/02), 824 So.2d 1137, “a plaintiff who

contracts an occupational disease has a right to sue in tort when the workers’

compensation act does not provide coverage for that disease.” (Emphasis added.)

In Austin, the supreme court held that the cause of action for a plaintiff who

suffers from a long-latency occupational disease accrues when the injury-producing

exposures “are significant and such exposures later result[ed] in the manifestation of

3 damages . . . .” Id. at 1154 (quoting Cole v. Celotex, 599 So.2d 1058, 1066

(La.1992)). Austin also recognized that, once the employee acquires a right to sue in

tort for an occupational disease, he cannot later be divested of that right by

subsequent legislative expansion of coverage for occupational diseases. Accordingly,

a plaintiff may sue his employer in tort if his “significant tortious exposure” occurred

either before 1952, when the legislature introduced workers’ compensation coverage

for an exclusive listing of occupational diseases or poisoning from certain substances;

or before 1975, when the legislature replaced the listing of specific diseases and

substances with a general definition of an occupational disease, if the malady from

which he suffers was not included in that list.2 Finding that the Plaintiffs in

Alexander clearly alleged pre-1952 exposure to asbestos, we reversed the granting of

Thiokol’s exception of no cause of action and remanded for a factual determination

as to which Plaintiffs were employed and exposed prior to 1952, with instructions that

the trial court entertain arguments for those employed and exposed after 1952.

Because the dismissal of Plaintiffs’ initial suit in tort against Thiokol has been

reversed, that suit may still serve as an interruption of prescription against the

executive officers, provided they are solidarily liable with Thiokol. La.Civ.Code art.

2 As recognized by Justice Weimer in Powell v. Weaver, 01-2937, p. 5 (La. 2/7/03), 841 So.2d 742, 744:

[I]t must be noted that Austin does not represent the last word on the continued viability of executive officer tort suits in Louisiana. At present there exists a conflict in the courts of appeal as to whether asbestos is both an oxygen compound and a metal compound so as to render asbestos-related disease a covered occupational disease under the worker’s compensation law and the sole remedy of employees suffering from such diseases. See and compare Brunet v. Avondale Industries, Inc., 99-1354 (La.App. 5 Cir. 12/5/00), 772 So.2d 974, writ not considered, 01-0171 (La.3/23/01), 787 So.2d 1006, and Gautreaux v. Rheem Manufacturing Company, 96-2193 (La.App. 4 Cir. 12/27/96), 694 So.2d 977, writ denied, 97-0222 (La.3/14/97), 690 So.2d 39. The final word cannot be written on this chapter until the conflict between Brunet and Gautreaux is resolved.

4 3503. In their original and supplemental petition, Plaintiffs alleged that, as the result

of exposure to large quantities of asbestos and silica products from 1938 to 1990,

their damages included death, cancer, fear of cancer, and other physical ailments, as

well as an increased risk of contracting asbestos-related diseases. Allegations of

liability against Thiokol included failure to warn of the dangers of asbestos, failure

to provide safe protective equipment, and the placing of workers in danger with

knowledge that its premises were unreasonably dangerous. Allegations against the

executive officers included failure to provide proper supervision, a safe working

environment, including proper ventilation, protective devices, and periodic medical

examinations.

In holding that an employer responsible for workers’ compensation benefits is

solidarily liable with a third-party tortfeasor, the supreme court in Williams, 611

So.2d 1383, recognized that it is the coextensive obligation to repair certain elements

of the same damage, and not the source of liability, that determines solidarity. In so

doing, the supreme court expressly overruled several cases that “perpetuat[ed] the

idea, rejected in Hoefly [v. Government Employees Insurance Co., 418 So.2d 575

(La.1982)], that parties cannot be solidarily liable unless their liability is based on the

same cause of action, i.e., that obligations arising from tort and contract, or tort and

worker’s compensation, cannot be solidary.” Id. at 1389. Under this definition, we

find that solidarity does exist between Thiokol and the executive officers, even

though their individual liability may be based on the breach of different duties in tort

or on different causes of action, such as workers’ compensation and tort.

As in Alexander, we are unable to determine the dates of exposure and the

particular damages for each Plaintiff, which factors would determine whether their

5 cause of action against Thiokol lies in tort or workers’ compensation. Although the

record contains correspondence indicating that Plaintiffs will have great difficulty

meeting the requirements of Austin, 824 So.2d 1137, as well as other jurisprudence

concerning occupational diseases, we cannot conclude that the evidence controverts

the allegations of their petition. Given that our prior opinion in Alexander

contemplates an evidentiary hearing on these very issues, we find that it would be

premature to rule on prescription at this time. We further decline to address the

arguments concerning the filing of suit in an incompetent jurisdiction, as such a

discussion would be advisory at this time.

Decree

For the above reasons, the judgment sustaining Defendants’ exception of

prescription is reversed, and the case is remanded for further proceedings consistent

with this opinion. Costs of this appeal are assessed to Defendants-Appellants.