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Brunet v. Avondale Industries12/5/2000
ed condition caused by exposure to X-rays or radioactive substances.
(3) Asbestosis.
(4) Silicosis.
(5) Dermatosis.
(6) Pneumoconiosis.
(7) Tuberculosis when contracted during the course of employment by an employee of a hospital or unit thereof specializing in the case and treatment of tuberculosis patients. (Emphasis added.)
Avondale made this argument to the trial court; the trial court ruled against Avondale, relying on Gautreaux v. Rheem Manufacturing Company, 96-2193 (La. App. 4 Cir. 12/27/96), 694 So.2d 977. After thorough consideration, we find that the trial court's reliance on Gautreaux was error. Avondale submitted proffers A - N in support of their position that asbestos is a listed pathogen in R.S. 23:1031.1. We find that asbestos is both an oxygen compound and a metal compound as per R.S. 23:1031.1, and because plaintiff's cancer is alleged to have been caused by his exposure to asbestos while employed at Avondale, his exclusive remedy against Avondale for this occupationally-caused disease is workers' compensation benefits.
Both Avondale and Brunet cite the Gautreaux case; plaintiff for the position that asbestos has already been determined NOT to be an oxygen compound for the purposes of R.S. 23:1031.1; defendant Avondale to point out that the case is not controlling because of its weak procedural posture (the affirmance of a denial of exception of no cause of action) and that it garnered only a plurality of a five judge panel.
In Gautreaux, the plaintiffs filed suit for damages incurred in the death of Charles Gautreaux from lung cancer, whose death was alleged to have been caused by exposure to asbestos during his employment at Rheem Manufacturing Company from 1946 to 1982. Defendant Rheem argued by exception of no cause of action that, under former LSA-R.S. 23:1031.1(A)(1)(d), asbestos was an oxygen compound and therefore the plaintiffs' exclusive remedy was in workers' compensation. The exception was denied and Rheem sought supervisory review. The Fourth Circuit, in a five-judge panel, granted the application to affirm the decision of trial judge denying relator's exception of no cause of action. Two judges joined in a plurality determination that asbestos was not an oxygen compound as per R.S. 23:1031.1. One judge concurred in the result only, noting that the court was not considering a summary judgment and stating that this matter required a trial where expert scientific evidence might be elicited. In a blistering dissent, the two remaining judges strongly disagreed with the two-judge plurality's analysis and misplaced reliance on other cases (discussed below).
In Gautreaux, the plurality held:
We find no error in the denial of relator's exception of no cause of action. The record contains an extensive dispute over whether asbestos is better characterized as a "mineral" or a "compound" for the purposes of former La. R.S. 23:1031.1(A) 1 (d). The attached affidavit of an expert witness suggests that asbestos would be better described as a mineral in the context of the scientific terminology appearing in the statute. Thus, on this showing, it has not been established as a matter of law that asbestos must be considered an "oxygen compound" within the context for former Subsection (d). Accordingly, the trial judge correctly denied the exception of no cause of action.
It is clear the court found that the defendant Rheem had not presented enough evidence, in its exception of no cause of action and in its writ application, to establish its position as a matter of law. Despite this finding, the two-judge plurality went on, inappropriately at this procedur
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