Landry v. Avondale Industries, Inc. (La. Ct. App., Sept. 17, 2003)

Our plain-English summary of Landry v. Avondale Industries, Inc. (Louisiana Court of Appeals, September 17, 2003).

Raleigh Landry worked at Avondale between May 1965 and May 1967 and died of mesothelioma on November 21, 2002. His wife and family sued Avondale and others, including co-employees and Reilly-Benton Company, over his asbestos-related injury. Reilly-Benton moved for summary judgment, arguing the Louisiana Comparative Fault Act applied to the wrongful death claim. A special master recommended granting it, and the trial court adopted that recommendation. The co-employee defendants and the plaintiffs both asked the appeals court to review the ruling, and the two writ applications were consolidated. The Fourth Circuit, sitting en banc, reversed. Following Cole v. Celotex, it read the Act's exclusion of claims from events before its August 1, 1980 effective date to mean the incidents of exposure. Reilly-Benton's reliance on Walls v. American Optical, a workers' compensation case, was rejected. The court remanded for further proceedings and lifted its stay.

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, 4th Circuit
• Decided: September 17, 2003
• Citation: 857 So.2d 1083
• Docket: Nos. 2003-C-1112, 2003-C-1174
• Stage: Appeal from summary judgment
• State: Louisiana

Outcome. The appeals court reversed the trial court's summary judgment for Reilly-Benton, which had applied the Comparative Fault Act to the wrongful death claim, and remanded the case, siding with the Landry plaintiffs and co-employee relators.

What the court held. For a wrongful death claim arising from a long-latency occupational disease, the "events" in Act 431 § 4 mean the incidents of exposure, so the Comparative Fault Act does not apply where the exposure occurred before its effective date.

Issues decided: Fault, Apportionment and Settlement Credits, Wrongful Death and Survival, Employer and Contractor Liability, and Workers' Compensation.

The people and their exposure

• Raleigh Landry: mesothelioma; died

The defendants

• Reilly-Benton Company, Inc.
• Avondale Industries, Inc. (employer)
• Peter Territo
• Edward Blanchard
• J. Melton Garret
• Albert Bossier Jr.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Cole v. Celotex Corp. (Louisiana Supreme Court, 1992). The Louisiana Supreme Court affirmed the court of appeal: pre-comparative-fault (virile share) law governed, the nine executive officers counted as nine separate shares, and the insurer INA's annual policies could be stacked, so INA owed each of the three plaintiff workers $135,000 plus interest.

Later decisions citing this one

One later decision in our library cites this one:

• Landry v. Avondale Industries, Inc. (Louisiana Supreme Court, 2004). The Louisiana Supreme Court reversed the court of appeal, reinstated the trial court's summary judgment for Reilly-Benton and Liberty Mutual that comparative fault applies to the wrongful death claim, and remanded; the Landry plaintiffs lost.

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.

857 So.2d 1083 (2003)

Raleigh LANDRY and Clailee Aucoin Landry

v.

AVONDALE INDUSTRIES, INC., etal.

Nos. 2003-C-1112, 2003-C-1174.

September 17, 2003.

Rehearing Denied November 14, 2003.

Court of Appeal of Louisiana, Fourth Circuit.

Gerolyn P. Roussel, Perry J. Roussel, Jr., Roussel & Roussel, LaPlace, LA, for Clailee, Jamie and Glen Landry. Gary A. Lee, Richard M. Perles, Johanna G. King, Lee, Futrell & Perles, LLP, New Orleans, LA, for Peter Territo, Albert Boissier, Jr., Edward Blanchard, and J. Melton Garret.

Stephen N. Elliot, Robert A. Knight, Francine Giugno, Bernard, Cassisa, Elliot & Davis, PLC, Metairie, LA, for Reilly-Benton Company, Inc., and Liberty Mutual Insurance Company.

Gary M. Zwain, Goeffrey P. Clement, Dana Anderson-Carson, Duplass, Zwain, Bourgeois & Morton, Metairie, LA, for Olympic Glove & Safety Company, Inc.

Dawn Fulce, Hattiesburg, MS, Dana Anderson-Carson, Duplass, Zwain, Bourgeois & Morton, Metairie, LA, for Steel Grip, Inc.

Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE.

[*1084] TERRI F. LOVE, Judge.

Relators, Peter Territo, Edward Blanchard, J. Melton Garret and Albert Bossier Jr., are defendants in the tort action brought by Raleigh Landry and his wife Clailee, arising out of Mr. Landry's alleged asbestos-related injury. Relators were co-employees of Mr. Landry while he was employed at Avondale between May 1965 and May 1967. Mr. Landry died of Mesothelioma on November 21, 2002.

Defendant, Reilly-Benton Company, Inc., filed a Motion for Summary Judgment arguing that Comparative Fault was applicable to plaintiffs' wrongful death claim. The Special Master, Honorable Gerald Fedoroff, submitted a report to the district court recommending the Reilly Benton's Motion for Summary Judgment be granted. Relators and plaintiffs submitted objections to the Special Master's report. After a contradictory hearing on the objection, the district court overruled the objection and adopted the Special Master's recommendation. The relators' filed the instant writ application asking this Court to reverse the judgment of the trial court. The plaintiffs in this mesothelioma litigation also sought review of the trial court's granting the motion for Summary Judgment filed by defendant. The issue presented in plaintiffs' writ application is identical to the issue in writ 2003-C-1112. Accordingly, the relators in writ 2003-C-1112 filed a motion to consolidate the two writ applications. Considering that the issues and parties are identical in the aforementioned writ applications, the motion to consolidate the two writ applications was granted.

The Comparative Fault Act, La. Acts 1979, No. 431, § 4, eff. Aug. 1, 1980 provides in pertinent part: "The provisions of this act shall not apply to claims arising from events that occurred prior to the time this act becomes effective" (emphasis added). The Supreme Court, in Cole v. Celotex Corp., 599 So.2d 1058 (La. 1992), interpreted the term "events" to mean the incidents of exposure. As found in Cole, the expression of legislative intent evidenced by § 4 as a whole indicates that Act 431 does not apply to long—term occupational disease cases where the events ultimately causing the death of the decedent occurred prior to Act 431's effective date.

Defendant, Reilly-Benton, Inc., relies on Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262, to support the proposition that in a wrongful death action the "event" is the death. However, in the case of a wrongful death action arising upon death from a long-latency occupational disease, the "events" referred to in the expression of legislative intent in

Act 431, § 4 can only mean the incidents of exposure. The Supreme Court's decision in Walls is not applicable to the instant case because it involves La. R.S. 23:1032, the Louisiana Workers' Compensation Act. La. R.S. 23:1032 does not contain the clear expression of legislative intent found in Act 431.

The overall thrust of the statement of legislative intent in Act 431, § 4, clearly demonstrates that the legislature did not intend that Act 431 adversely affect the rights of survivors in a case, such as the instant one, where the decedent dies as a direct result of pre-Act events, i.e., significant exposure to asbestos-containing products manufactured and/or distributed by the alleged tortfeasor.

The trial court committed an error of law in finding that Comparative fault was applicable to plaintiffs' wrongful death claim. Therefore, we reverse the ruling of [*1085] the trial court and remand for further proceedings.[1]

Pursuant to this ruling, the stay order issued by this Court, on June 26, 2003, is vacated.

REVERSED AND REMANDED.

[1] Due to conflicting opinions, this Court considered the issue en banc, and a majority agreed that the Comparative Fault Act, La. C.C. art. 2323, enacted by Acts 1979, No. 431, Section 1, effective August 1, 1980, does not apply to the plaintiffs' wrongful death claim.

Sources

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