Mazoue v. Avondale Industries, Inc. (2003)

Our plain-English summary of Mazoue v. Avondale Industries, Inc. (Louisiana Court of Appeals, January 22, 2003).

Joseph Mazoue sued Avondale Industries and other companies, claiming they were responsible for his asbestosis and mesothelioma. He died without a will soon after filing. His surviving daughter, Jeanne Mazoue Marsh, was substituted as plaintiff and settled the case in 2001. Two grandchildren, children of another daughter who died before Mr. Mazoue, tried to intervene. They argued the settlement belonged to his estate and that they could continue the case, one of them in her capacity as administratrix of the estate. The trial court rejected their claims because Louisiana Civil Code article 2315.1 does not list grandchildren among those who may continue a survival action. The Court of Appeal affirmed. It relied on an earlier Louisiana Supreme Court decision (Hunt) and its own decision in Dufrene, which hold that the article is strictly construed and grandchildren do not take their deceased parent's place. The court also found no equal protection or due process violation, and did not reach the attorney-fee arguments.

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: January 22, 2003
• Citation: 839 So.2d 171
• Docket: No. 2002-CA-1569
• Stage: Appeal from other
• State: Louisiana

Outcome. The court affirmed the trial court's rejection of the grandchildren's claims, holding that the decedent's surviving daughter, Ms. Marsh, was the only party entitled to continue the action and keep the settlement.

What the court held. The right to continue a tort action begun before the victim's death belongs only to the beneficiaries listed in La. C.C. art. 2315.1, which is strictly construed. Grandchildren cannot step into the shoes of a deceased parent when a surviving child exists.

Issues decided: Wrongful Death and Survival.

The people and their exposure

• Joseph A. Mazoue: asbestosis, mesothelioma; died

The defendants

• Avondale Industries, Inc. (formerly Avondale Shipyards, Inc.)
• Branton Insulations, Inc.
• Eagle, Inc.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Dufrene v. Avondale Industries, Inc. (Louisiana Court of Appeals, 4th Circuit, 2001). The appeals court granted Avondale's writ, reversed the trial court's denial of its exception of no cause of action/no right of action, and dismissed Corky Dufrene, as administrator and tutor of the granddaughter's estate, as a plaintiff.

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.

839 So.2d 171 (2003)

Joseph A. MAZOUE

v.

AVONDALE INDUSTRIES, INC., (Formerly Avondale Shipyards, Inc.), and its Executive Officers,

Edward Hartzman, John Chantrey, Edward Blanchard, Henry Zach Carter, Peter Territo, James

O'Donnell, Branton Insulations, Inc., Eagle, Inc., etal.

No. 2002-CA-1569.

January 22, 2003.

Writ Denied April 25, 2003.

Court of Appeal of Louisiana, Fourth Circuit.

M. Reggie Simmons, Gretchen D. Leahy, Franklinton, LA, for Plaintiff/Appellant.

Scott R. Bricklford, Regina O. Matthews, Martzell & Bickford, New Orleans, LA, for Defendant/Appellee. (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY). WILLIAM H. BYRNES III, Chief Judge.

Prior to his death, Joseph A. Mazoue instituted a tort action against those he felt were responsible for his asbestosis and mesothelioma. Not long after instituting the action, he died intestate. He was survived by one child, Jeanne Mazoue Marsh. Ms. Marsh was substituted as the legal successor of the decedent and in August of 2001, several years after the death of the decedent she settled the case.

Mr. Mazoue had another child, Gloria Mazoue Leahy, who predeceased him.

[*172] She was survived by two children, William Edward Leahy, II, and Pamela Carol Leahy Salvaggio, grandchildren of the decedent. Prior to the funding of the settlement, the grandchildren sought to intervene, asserting that the settlement proceeds are assets of the decedent's succession and that as the children and heirs of their late mother, Gloria, they are proper party plaintiffs to prosecute their late grandfather's action. Ms. Salvaggio qualified in St. Charles Parish as the administratrix of the decedent's estate, and in that additional capacity sought to intervene to protect the action as a succession asset.

The trial court rejected the claims of the grandchildren in both their individual and representative capacities based on a literal reading of La. C.C. art. 2315.1 A(1). Grandchildren are not among the categories in favor of whom the legislature has created a survival action and the succession representative referred to in La. C.C. art. 2315.1 B may only act "in the absence of any class of beneficiary" described in the preceding paragraph of the 2315.1.

The grandchildren appeal in both their individual and representative capacities. Their strongest argument is that La. C.C. art. 3506(8) defines children as follows:

Children.—Under this name are included those persons born of the marriage, those adopted, and those

whose filiation to the parent has been established in the manner provided by law, as well as descendants of them in the direct line. [Emphasis added.]

Appellants claim their right under La. C.C. art. 3506(8) as "descendants ... in the direct line." This same argument was rejected by the Supreme Court in Hunt v. New Orleans Ry. & Light Co., 140 La. 524,73 So. 667, (La.1916). Although the language and numbering of the applicable code articles have changed somewhat in the years since Hunt was handed down, those changes are immaterial to the issue now before this Court. This Court fails to see why brothers and sisters of a decedent should be afforded a right of action where grandchildren would not, but the Supreme Court was aware of that when Hunt was decided. In this regard, we find that Hunt is still good law.

Similarly, in Dufrene v. Avondale Indus. Inc., 2001-1474 (La.App. 4 Cir. 8/22/01), 795 So.2d 456, writ denied 2001-2613 (La.10/26/01),799 So.2d 1156, this Court held the right to continue a tort action instituted prior to the tort victim's death belongs to article 2315.1 beneficiaries, not to the tort victim's heirs under succession law:

[G]randchildren may not be considered to "step into the shoes" of their deceased parents for purposes of La. C.C. art. 2315.1 because the article must be narrowly and strictly construed. See Day v. Day, 563 So.2d 441 (La.App. 1 Cir.1990).

Id., p. 6, 795 So.2d at 459.

The grandchildren rely on dicta in Nathan v. Touro Infirmary, 512 So.2d 352 (La.1987), but as this court explained in Dufrene:

However, the trial court's decision ignores a pivotal fact in Nathan—i.e., that no La. C.C. art. 2315.1 beneficiaries existed because the decedent was not survived by any spouse, children, parents, or siblings. Id., p. 5, 795 So.2d at 459.

Therefore, Nathan has no bearing on the outcome of the instant case.

Accordingly, while, as a matter of policy, this Court may feel that the appellants have the stronger case, as a matter of law, which law we are bound to follow, the appellee must prevail. Therefore, on the [*173] merits of the appellants' main claim we find in favor of the appellee.

As we have decided that the appellee, Ms. Marsh, as the decedent's sole surviving child, is the only party in whose favor La. C.C. art. 2315.1 establishes a right of action, we do not reach appellees' arguments concerning the entitlement of appellee's attorney to the fees he charged. Appellants have no right to attack the contingent fee paid by the appellee to her counsel. Appellants raise questions of equal protection and due process. The appellee contends that the appellants did not raise these constitutional issues in a timely manner. Regardless of appellants' timeliness, we find no merit in their constitutional arguments. We find no constitutional defect in the legislature's affording a remedy to the class of surviving children that does not include the children of predeceased children. The fact that this Court might have created a different classification does not mean that it is an unreasonable classification. Additionally, the legislature is not required to follow succession law concerning the devolution of the claim of a personal injury upon his death. In fact, the legislature has never followed succession law in this regard, although nothing could be easier were it the intention of the legislature to do so. Such an action becomes a succession asset only in default of the existence all other designated categories of claimants. And even this default provision is of fairly recent origin. Act No. 211, § 2 of 1986.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

Sources

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