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Brunet v. Avondale Industries12/5/2000
BR>
This Court has made an extensive review of the proffered evidence relevant to the issue. The statement of evidence and the deposition testimonies were reviewed thoroughly as were the exhibits offered by Avondale on this matter. While both Drs. Ensley and Ragan agree that asbestos is a compound that contains oxygen and metals, they disagree on whether this makes asbestos an "oxygen-based" or a "metal-based" compound. Dr. Ensley would testify to his belief that asbestos falls into the category of both oxygen and its compounds and metals and their compounds because it is a compound which contains both of these substances. Dr. Ragan, on the other hand, disputes this assertion. It is his opinion that while asbestos does contain both oxygen and metals, it is merely an "oxygen-containing" and "metal-containing" compound, but not a compound of oxygen or metal. While the distinction may appear negligible, it is important in determining the issue.
A broad reading of this section of the Act, such as what Avondale proposes, would allow poisoning or other disease resulting from contact with any compound containing oxygen or metals to be covered under the Act. This interpretation would expand the aegis of the Act beyond that which the legislature intended and would prejudice both employees and employers in employment-related suits.
Based upon the evidence before us, it is my opinion that asbestos is not a substance which the legislature contemplated including under the pre-1975 revision of LSA-R.S. 23:1031.1. My opinion is further persuaded by the fact that the Supreme Court chose not to grant writs in either Gautreaux or Thomas when the issue had been previously raised. Scientifically, asbestos cannot be considered either "oxygen and its compounds" or "metals and their compounds" for purposes of the statute. The judgment of the trial court should be affirmed.
In holding that lung cancer contracted through exposure to asbestos is not covered under the pre-1975 revision of LSA-R.S. 23:1031.1, this Court should also hold that the exclusive remedy provision of LSA-R.S. 23:1032 is inapplicable. The statute states in pertinent part:
"A. (1)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury , or compensable sickness or other disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages ..." (Emphasis added).
Brunet's injuries suffered due to lung cancer are not compensable under the Act. Due to this distinction, LSA-R.S. 23:1032 is not a statutory exception to strict liability in this particular case.
In its second assignment of error, Avondale alleges that the trial court erred by refusing to charge the jury on the issue of whether Brunet contracted lung cancer after September 30, 1976. Avondale contends that under the law in effect at the time of Brunet's contraction of lung cancer, the exclusive remedy was under the Louisiana Workers Compensation Act. I disagree.
As noted previously, the Supreme Court's ruling in Cole v. Celotex, supra stands for the theory that in long-latency occupational disease cases, the key relevant events giving rise to the claim are the repeated tortious exposures resulting in continuous, on-going damages, although the disease may not be considered contracted or manifested until later. The Supreme Court further noted that when the tortious exposures which occurred prior to the effective date of the relevant Act are significant and such exposures later result in the manifestation of damages, the pre-Act law applies.
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