Barker v. Anco Insulations, Inc. (2023)

Our plain-English summary of Barker v. Anco Insulations, Inc. (Louisiana Court of Appeals, March 29, 2023).

Charles Barker, a union insulator, was diagnosed with malignant mesothelioma and later died. His heirs sued in St. James Parish, Louisiana, alleging his disease came from asbestos exposure while working for several employers. One employer was B & B Engineering. B & B, its insurers and four former executives (a president, a superintendent and two foremen) moved for summary judgment, arguing none of the four owed Mr. Barker a personal duty to provide a safe workplace. The trial court granted the motion and dismissed the four officers. The heirs appealed. The Fifth Circuit reviewed the ruling de novo and applied the Louisiana Supreme Court's Canter v. Koehring test, which requires that the employer delegate a personal duty to the officer and that he personally breach it. The heirs conceded they had no direct evidence of delegation. No officer admitted responsibility for Mr. Barker's safety. Barker could not say whether the foremen were responsible for safety at the Borden worksite. The court affirmed the dismissal.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Louisiana Court of Appeals, 5th Circuit
• Decided: March 29, 2023
• Citation: 360 So.3d 925
• Docket: NO. 22-CA-417
• Stage: Appeal from summary judgment
• State: Louisiana

Outcome. The appeals court affirmed summary judgment for the four former B & B executive officers, dismissing the Barker heirs' claims against them with prejudice.

What the court held. Under Canter v. Koehring, an executive officer is personally liable only if the employer delegated a personal duty of care to him and he breached it; general administrative responsibility is not enough.

Issues decided: Employer and Contractor Liability, and Workers' Compensation, Trial Procedure and Discovery.

The people and their exposure

• Charles E. Barker: mesothelioma; died

Who	Work	Where	When	Products
Charles E. Barker	Asbestos Workers Union insulator	Borden plant

The defendants

• B & B Engineering and Supply Company of Louisiana, Inc. (employer)
• William Devillier
• Armond Hullinghorst
• Ben Kelly
• Herman Warthen
• Bituminous Fire & Marine Insurance Company n/k/a BITCO National Insurance Company (insurer)
• The Travelers Indemnity Company (insurer)
• Liberty Mutual Insurance Company (insurer)
• Anco Insulations, Inc.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Hoerner v. Anco Insulations, Inc. (Louisiana Court of Appeals, 4th Circuit, 2002). The appeals court affirmed most of the jury verdict for the Hoerners but reversed liability for McCarty as employer of other insulators, for Mr. Schuber III, Mr. McCarty and Home Insurance, and four settling-defendant credits, and amended the judgment to $306,111.07.
• Abadie v. Metropolitan Life Ins. Co. (Louisiana Court of Appeals, 5th Circuit, 2001). The appeals court reversed the trial judge's JNOVs that had raised the seven plaintiffs' damage awards and reinstated the jury's awards, affirmed liability of Asbestos Corporation Limited and four Avondale safety officers (O'Donnell, Kennedy, Chantrey, Territo; not Chantrey as to Badeaux), reversed liability of two other officers (Kelmell, Roberts), and recalculated each judgment by virile shares, including the Johns-Manville trust and four of the settling manufacturers.
• Egan v. Kaiser Aluminum & Chemical Corp. (Louisiana Court of Appeals, 4th Circuit, 1996). The appeals court affirmed the bench-trial judgment against Owens-Corning Fiberglass (OCF), including the $350,000 general damages award and the set-off ruling, and rejected the plaintiff's request for punitive damages under Ohio law.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

360 So.3d 925 (2023)

Charles E. BARKER

v.

ANCO INSULATIONS, INC., etal.

NO. 22-CA-417.

March 29, 2023.

Court of Appeal of Louisiana, Fifth Circuit.

ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ST. JAMES, STATE OF LOUISIANA,

NO. 40,665, DIVISION "B", HONORABLE CODY M. MARTIN, JUDGE PRESIDING.

COUNSEL FOR PLAINTIFF/APPELLANT, JEAN MARIE BARKER, STEVE A. BARKER, CHARLES E. BARKER JR., AND

LESLIE A. ROBERTSON, INDIVIDUALLY AND ON BEHALF OF DECEDENT, CHARLES E. BARKER, David R. Cannella,

New Orleans, Christopher C. Colley, Kristopher L. Thompson.

COUNSEL FOR DEFENDANT/APPELLEE, BITCO NATIONAL INSURANCE [*927] COMPANY, THE TRAVELERS

INDEMNITY COMPANY AND LIBERTY MUTUAL INSURANCE COMPANY, AS THE ALLEGED INSURERS OF B&B

ENGINEERING AND SUPPLY COMPANY OF LOUISIANA, INC. AND B&B ENGINEERING AND SUPPLY COMPANY, INC.,

AND ITS ALLEGED EXECUTIVE OFFICERS, Kaye N. Courington, Dawn D. Marullo, Jeffrey M. Burg, Troy N. Bell, New Orleans

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and John J. Molaison, Jr.

[*926] MOLAISON, JUDGE.

In this case pertaining to asbestos exposure, the plaintiffs/appellants appeal the granting of a summary judgment by the district court that dismissed their cause of action brought against the executive officers for one of the companies where the decedent worker was employed. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

Mr. Charles Barker, a former Asbestos Workers Union insulator, was diagnosed with malignant mesothelioma prior to his death. On December 29, 2021, plaintiffs, Mr. Barker's surviving heirs, filed a petition for damages at the Twenty-Third Judicial District Court in St. James Parish, which alleged that Mr. Barker's mesothelioma was caused by asbestos exposure through his work for different employers over the course of his career. On July 20, 2022, one of Mr. Barker's prior employers, B & B Engineering ("B & B"),[1] filed a motion for summary judgment. Relevant to the instant appeal, B & B's former executive officers[2] argued in the motion that none of the named officers owed a personal designated duty to Mr. Barker to provide him with a safe workplace and, therefore, they were not liable for any damages that resulted from his work with B & B. The trial court granted summary judgment in favor of B & B's former executives after a hearing on August 17, 2022, and those parties were dismissed with prejudice. This timely devolutive appeal followed.

ASSIGNMENT OF ERROR

In their sole assignment of error, appellants contend that the district court erred in granting the executive officers' summary judgment when genuine issues of material fact exist.

LAW AND ANALYSIS

Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any

genuine issue as to material fact, and whether the mover is entitled to judgment as a matter of law. Dorsey v. Purvis Contracting Grp., LLC, 17-369 (La. App. 5 Cir. 12/27/17), 236 So.3d 737, 741, writ denied, 18-0199 (La. 3/23/18), 239 So.3d 296.

Generally, in a motion for summary judgment, the movant retains the burden of proof. La. C.C.P. art. 966(C)(2). KMJ [*928] Services, Inc. v. Hood, 12-757 (La. App. 5 Cir. 4/10/13), 115 So.3d 34; Robinson v. Jefferson Parish Sch. Bd., 08-1224 (La. App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043; Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773, 776-77. However, if the movant sustains this initial burden by showing an absence of factual support for at least one essential element of the adverse party's claim, action, or defense, then the burden shifts to the adverse party to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Id. Thereafter, if the adverse party fails to produce factual support to show that he will be able to meet his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Id.

Executive Officer Liability

As acknowledged by this Court in Abadie v. Metro. Life Ins. Co., 00-344 (La. App. 5 Cir. 3/28/01), 784 So.2d 46, 81, writ denied, 01-1533 (La. 12/14/01), 804 So.2d 642,[3] the Louisiana Supreme Court set forth the factors used to determine executive officer liability in asbestos actions in the case of Canter v. Koehring Co., 283 So.2d 716 (La. 1973). These elements are:

1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.

2. This duty is delegated by the principal or employer to the defendant.

3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances—whether

such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.

4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff's damages. If the defendant's general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or

personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.

Id., at 721.

Personal duty of care

In Griffin v. Littlefield, 416 So.2d 198, 200 (La. App. 1 Cir. 5/25/82), writ denied, 421 So.2d 250 (La. 1982), the court held that as a prerequisite to recovery in an [*929] executive officer suit, the plaintiff must establish by a preponderance of the evidence that the employer delegated to one of the defendant executives the fulfilling of a personal duty owed to the plaintiff and that the breach of this duty caused damage to the plaintiff. Further, general administrative responsibility of an executive officer does not fall within the category of a personal duty. Chrisham v. Blum, 383 So.2d 458, 459 (La. App. 4 Cir. 4/15/80), writ refused, 389 So.2d 1128 (La. 1980).

In Hoerner v. ANCO Insulations, Inc.,[4] a former asbestos worker brought a products liability action against his former employers, asbestos contractors, and asbestos distributors following his contraction of asbestosis. A jury in the trial that followed found liability as to four of the executive officers in the company where the plaintiff was employed. In reviewing the

verdict against the executives, the Fourth Circuit opined that the correct test to determine liability was whether the officer in question had "some direct duty to provide [the plaintiff] a safe place to work, including some control over purchase and availability of equipment and supplies." Id. at 63-64. In applying this test on appeal, the court reviewed the jury's determination and found that liability was only proven for two of the executives in the action. In one of those instances, there was a direct admission by the executive that "he had responsibility for providing his employees a safe place to work, including control of purchasing and availability of equipment and supplies." Liability for the second executive was affirmed on the basis that he had agreed to provide respirators to union employees "when required," meaning whenever dusty conditions existed. Id., at 65.[5]

Liability of the B & B executives

The plaintiffs in the instant case acknowledge a lack of direct evidence that shows any of the four B & B executives at issue were delegated the responsibility for Mr. Barker's personal safety while he worked for that company. Thus, the requirement of delegation under Canter, supra, was not met. Also, there are no respective admissions in the record by any of the B & B executives that they assumed responsibility for Mr. Barker's safety or to prevent his exposure to asbestos, which was a key element of liability found by the court in Hoerner, supra.

The plaintiffs argue that A.H. Hullinghorst and William Devillier knew, or should have known, of the non-performance and/or mal-performance of the safety duties of the foremen at the Borden plant to protect Mr. Barker from asbestos exposure. In other cases of executive liability on similar issues, our courts have held, citing Canter, supra, that "general administrative responsibility" does not replace the "duty of care" standard in the determination of executive liability. Egan v. Kaiser Aluminum & Chem. Corp., 94-1939 (La. App. 4 Cir. 5/22/96), 677 So.2d 1027, 1036, writ denied, 96-2401 (La. 12/6/96), 684 So.2d 930. In the instant case, the plaintiffs have not proven that the work of Hullinghorst and Devillier rose above a general administrative responsibility.

[*930] Similarly, the plaintiffs argue that foremen Herman Warthen and Ben Kelly were "directly in charge of safety" at the Borden facility where Mr. Barker worked for B & B. Unlike the executives found to have incurred liability in Hoerner based upon their own admission, the record before us does not contain any evidence by way of testimony or affidavit, through which either Warthen or Kelly admit a personal duty to provide Mr. Barker with a safe place to work at the Borden facility. Mr. Barker recalled in his deposition that, generally, safety rules are implemented by "the job site," which has its own set of rules and regulations as to how the job should be performed. While Mr. Barker identified Kelly and Warthen as foremen on the Borden worksite, he did not know if either was responsible for safety there. A co-worker of Mr. Barker at the Borden facility, Charles Harris, testified in his deposition that safety meetings at Borden were conducted by the Supervisor for the General Contractor and not a B & B foreman.

Conclusion

After our de novo review of the record in this matter, we find the appellees have met their burden of proof under applicable summary judgment standard as set forth through the pleadings, affidavits, and memorandum submitted. We further find no error in the trial court's ruling that Mr. Barker has not provided evidence that any of the four B & B executive officers named in this matter had a delegated duty of care toward Mr. Barker to ensure his safety against asbestos exposure at the Borden worksite. Based on the foregoing, and for the reasons assigned, we find that there are no genuine issues as to material fact and the appellees are entitled to judgment as a matter of law, and accordingly, summary judgment was properly granted in this matter.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED

[1] For the purposes of brevity, "B & B Engineering" will be used to refer to all parties who had joined in the motion for summary judgment: Bituminous Fire & Marine Insurance Company n/k/a BITCO National Insurance Company, The Travelers Indemnity Company, and Liberty Mutual Insurance Company as the alleged insurers of B&B Engineering and Supply Company of Louisiana, Inc. and B&B Engineering and Supply Company, Inc., and its alleged executive officers.

[2] The four former B & B executives, to whom the summary judgment applies, are: William Devillier, a job and field superintendent; Armond Hullinghorst, a vice president and president of B & B; as well as foremen Ben Kelly and Herman Warthen.

[3] The full citation for this appeal is as follows: Abadie v. Metro. Life Ins. Co., 00-344 (La. App. 5 Cir. 3/28/01), 784 So.2d 46, 81, writ denied, 01-1533 (La. 12/14/01), 804 So.2d 642, and writ denied, 01-1534 (La. 12/14/01), 804 So.2d 642, and writ denied, 01-1543 (La. 12/14/01), 804 So.2d 643, and writ denied, 01-1544 (La. 12/14/01), 804 So.2d 643, and writ denied, 01-1629 (La. 12/14/01), 804 So.2d 643, and writ denied, 01-1853 (La. 12/14/01), 804 So.2d 644, and writ denied, 01-1931 (La. 12/14/01), 804 So.2d 644. [4] Hoerner v. ANCO Insulations, Inc., 00-2333 (La. App. 4 Cir. 1/23/02), 812 So.2d 45, writ denied, 02-0935 (La. 6/21/02), 819 So.2d 1023, and writ denied, 02-0965 (La. 6/21/02), 819 So.2d 1023, and writ denied, 02-0967 (La. 6/21/02), 819 So.2d 1023, and writ denied, 02-0972 (La. 6/21/02), 819 So.2d 1024.

[5] See also, Abram v. Epec Oil Co., 05-0626 (La. App. 4 Cir. 6/28/06), 936 So.2d 209, 214, writ denied, 06-2147 (La. 11/17/06), 942 So.2d 537, where executives found liable for the plaintiff's asbestos injuries were positively identified as persons in charge of the plaintiff's safety.

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites