Thomas v. Armstrong World Industries (1996)

Our plain-English summary of Thomas v. Armstrong World Industries (Louisiana Court of Appeals, June 28, 1996).

Royce Thomas worked as an insulator for Anco Insulations from 1968 to 1971. In 1994 he was diagnosed with lung cancer and asbestosis. He sued Anco, alleging he handled large quantities of asbestos and was routinely exposed to asbestos dust used by other workers nearby. Anco asked the court to dismiss the claim, arguing workers' compensation was his only remedy. The trial court agreed and dismissed the claim. The Court of Appeal reversed. It held that the law in force at the time of exposure governed, and that the 1952 occupational disease statute listed asbestosis but did not list lung cancer or name asbestos as a covered substance. Anco argued asbestos was implied by the listing of asbestosis, but the court found that insufficient. Whether the lung cancer was caused independently by asbestos, or was a progression of the asbestosis, could not be decided from the petition alone. Anco could raise that at trial. The court did not decide the intentional tort issue and remanded the case.

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, 1st Circuit
• Decided: June 28, 1996
• Citation: 676 So.2d 1185
• Docket: No. 95 CA 2222
• Stage: Appeal from motion to dismiss
• State: Louisiana

Outcome. The appeals court reversed the dismissal of Royce Thomas's claim against his employer Anco Insulations, which had won on an exception of no cause of action, and remanded for further proceedings.

What the court held. Under the pre-1975 occupational disease statute, which listed asbestosis but not lung cancer or asbestos as a substance, the petition's allegation that lung cancer was caused by asbestos rather than asbestosis stated a cause of action outside workers' compensation exclusivity. Whether the cancer was independent or a progression of asbestosis could not be decided from the pleadings alone.

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

The people and their exposure

• Royce Thomas: lung cancer, asbestosis

The defendants

• Anco Insulations, Inc. (employer)
• Armstrong World Industries, Inc. · its asbestos trust

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

11 later decisions in our library cite this one:

• Rando v. Anco Insulations Inc. (Louisiana Supreme Court, 2009). The Louisiana Supreme Court affirmed the court of appeal's judgment for Ray Rando against his former employers JCI and Parsons, holding his tort suit was not barred by workers' compensation exclusivity or peremption and upholding liability and the $2.8 million general damages award.
• Terrance v. Dow Chemical Company (Louisiana Court of Appeals, 1st Circuit, 2007). The court affirmed the judgment on the jury's $5,000,000 general damages verdict for the Terrance estate and surviving spouse against Exxon, and denied Exxon's JNOV, new trial and remittitur motions.
• Adams v. Asbestos Corp. Ltd. (Louisiana Court of Appeals, 2nd Circuit, 2005). The court of appeal affirmed summary judgment for Eaton Corporation, dismissing the survival action of Walter Counts' heirs because workers' compensation was their exclusive remedy.
• Adams v. Owens-Corning Fiberglas Corp. (Louisiana Court of Appeals, 1st Circuit, 2005). The appeals court affirmed dismissal of Jefferson's tort claim against Cooper/T. Smith for asbestosis but reversed dismissal of his other claims, including colon cancer, and remanded.
• Alexander v. Thiokol Corp. (Louisiana Court of Appeals, 3rd Circuit, 2004). The court reversed the trial court's grant of Morton's exception of no cause of action, which had dismissed the workers' suit, and remanded for further proceedings.
• Brunet v. Avondale Industries, Inc. (Louisiana Court of Appeals, 5th Circuit, 2000). The court affirmed the judgment dismissing the Brunet family's claims against Avondale Industries, holding that workers' compensation was their exclusive remedy, and it dismissed the appeal as to Avondale's executive officers and their insurers.
• Asbestos v. Bordelon, Inc. (Louisiana Court of Appeals, 4th Circuit, 1998). The court affirmed the jury verdicts for the plaintiffs against Owens-Corning Fiberglas (Kaylo insulation) and Rock Wool (One Shot cement), reversed the judgments against Garlock, A.W. Chesterton and Flexitallic, affirmed the judgments against Abadie, Naquin and Terrebonne and the dismissal of Plaisance's claim as prescribed, and ordered a virile-share reduction for Avondale's settlement that, on rehearing, applies only to Duronslet.
• Callaway v. Anco Insulation, Inc. (Louisiana Court of Appeals, 4th Circuit, 1998). The court granted Anco's writ in part, reversing the denial of summary judgment on the wrongful death and intentional tort claims (Anco won), but left in place the denial as to the survival action in negligence (plaintiffs won).
• Meredith v. Asbestos Corp., Ltd. (Louisiana Court of Appeals, 4th Circuit, 1998). The court granted the supervisory writs, reversed the denial of summary judgment for Todd and its insurers on the wrongful death actions and dismissed them, but affirmed the denial of summary judgment on the Meredith survival action, which was remanded.
• Gautreaux v. Rheem Mfg. Co. (Louisiana Court of Appeals, 4th Circuit, 1996). The court of appeal granted Rheem's writ application but affirmed the trial court's denial of Rheem's exception of no cause of action, so the plaintiffs' tort suit against Rheem continued (two judges dissented).
• Johnson v. Ashland Oil, Inc. (Louisiana Court of Appeals, 1st Circuit, 1996). The court reversed the summary judgment that had dismissed the Johnson family's tort claims against Morton International and remanded the case for further proceedings.

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.

676 So.2d 1185 (1996)

Royce THOMAS

v.

ARMSTRONG WORLD INDUSTRIES, INC., etal.

No. 95 CA 2222.

June 28, 1996.

Court of Appeal of Louisiana, First Circuit.

[*1186] Robert H. Urann, Nancy Picard, Metairie, for Royce Thomas.

Lisa A. Condrey, Craig Nelson, New Orleans, for Amco Insulations, Inc.

Before LOTTINGER, C.J., and GONZALES and FITZSIMMONS, JJ.

FITZSIMMONS, Judge.

Royce Thomas was employed as an insulator by Anco Insulations, Inc ("Anco") from 1968 until 1971. In mid-April, 1994, appellant was diagnosed with lung cancer and asbestosis. In his petition, he alleged that during the normal course of work, he had been required to handle large quantities of asbestos. He purported that he was also exposed routinely to asbestos dust and fibers, which were used by other workers in his immediate vicinity. It was averred that due to the negligence and/or intentional acts of defendant, he contracted lung cancer as a result of this exposure.

Anco filed a peremptory exception of no cause of action, based upon the exclusive remedy of workers' compensation, and the inapplicability of intentional tort causes of action at the time of the plaintiff's employment. The district court granted Anco's exception of no cause of action, without assigning reasons therefor, and dismissed appellant's claim with prejudice against Anco. Mr. Thomas has appealed that dismissal of his claim on the grounds that his lung cancer related to a pre-1975 exposure to asbestos, which was not covered by the Louisiana Workers' Compensation Act. It is additionally asserted that appellant stated a cause of action in tort for the failure by Anco to provide him with a safe place to work. We agree that the petition states a cause of action.

It is not disputed that injury producing events determine the time at which a claim arises, as well as the controlling law, when it is alleged that earlier exposure resulted in a belated manifestation of damages. See, Cole v. Celotex, 599 So.2d 1058, 1066 and 1067 (La.1992); Smith v. Gretna Machine and Iron Works, 94-369, p. 5-6 (La.App. 5th Cir.11/16/94), 646 So.2d 1096, 1098. Since the date of asbestos exposure dictates the applicable law to be applied, La.R.S. 23:1031.1, as enacted pursuant to legislative Act 532 in 1952, is controlling in the matter before us. Louisiana Revised Statute 23:1031.1(A) provides in pertinent part, to wit:

An occupational disease shall include only those diseases hereinafter listed when contracted by an

employee in the course of his employment as a result of the nature of the work performed....

1. Poisoning by or other disease resulting from contact with [a list of substances that does not include asbestos]...

2. Diseased condition caused by exposure to X-rays or radio-active substances.

3. Asbestosis

4. Silicosis.

5. Dermatosis

6. Pneumoconiosis. (Italics supplied)

A reading of the statutory language of La.R.S. 23:1031.1 reveals that the schedule of diseases specifically includes the condition of asbestosis; however, it does not name the disease of lung cancer. Moreover, the extensive list of substances that the 1952 statute delineates as being exclusive in order to maintain an action in workers' compensation, [*1187] does not contain the physical matter, asbestos.

Mr. Thomas avers that the etiology of his claim, id est, the development of lung cancer as a consequence of repeated exposure to asbestos, is not covered by pre-1975 workers' compensation because lung cancer was not one of the enumerated diseases; and, additionally, asbestos was not one of the itemized substances. Anco counters that Mr. Thomas had contracted the disease, asbestosis, which is one of the enumerated diseases restricting one's remedy to an action in workers' compensation. Although asbestos is not provided as one of the substances in the pre-1975 statute, appellee argues that asbestosis can only be contracted from asbestos. Thus, it was not necessary to include the specific names of the substances in the compound list when they are, a priori, logically and inferentially contained by the resulting diseases. The condition could not logically have been contracted but for the underlying existence of those substances. While Anco presents an interesting argument to support the inferential inclusion of asbestos in the provided list of substances within La.R.S. 23:1031.1, it is not sufficient to overcome the fact that asbestos is simply not specifically written as one of the exclusive substances; nor, is lung cancer provided as one of the diseases that falls under the restricted ambit of a workers' compensation action. The focal issue to be judicially determined is whether the lung cancer was independently caused by asbestos or, alternatively, whether it was a progression of the asbestosis disease that Mr. Thomas had simultaneously contracted. See, Wallace v. Kaiser Aluminum & Chemical Corporation, 586 So.2d 149 (La.1991). Defendant is not precluded from demonstrating at the trial level that the asbestosis initiated the lung cancer and, therefore, the lung cancer would be encompassed within the diseases limited to workers' compensation. However, this is not a legal conclusion that can be determined from the face of the pleadings alone.

The purpose of an exception of no cause of action is to ascertain the adequacy in law of the petition. The court must accept the well-pleaded allegations as true, and the issue is whether, based on the allegations presented in the petition alone, the plaintiff is entitled to the relief sought. City of New Orleans v. Board of Commissioners, 93-0690, p. 2 (La.7/5/94), 640 So.2d 237, 241. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding a cause of action stated. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, 92-1545 (La.App. 1st Cir.3/11/94), 634 So.2d 466, 493, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094.

Accepting Mr. Thomas' pleaded contention that the lung cancer resulted from asbestos, rather than asbestosis, sufficient factual issues subject to reasonable dispute are presented to defeat the exception. The district judge, therefore, erred in maintaining the exception of no cause of action. We decline at this time to address the issue of intentional tort raised by appellant, or its applicability to the instant cause of action. Accordingly, this matter is remanded to the district court for further proceedings consistent with this opinion. Costs of the appeal are assessed to Anco.

REVERSED AND REMANDED.

Sources

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