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Landry v. Avondale Industries12/3/2003
For the reasons stated herein, the judgments of the court of appeal are reversed, the exceptions of no cause of action on the loss of consortium claim are granted, Mrs. Landry's pre-death loss of consortium claims are dismissed with prejudice, and the case is remanded for further proceedings.
REVERSED AND REMANDED.
CALOGERO, C.J., concurs in part and assigns reasons.
JOHNSON, J., concurs in the result.
KNOLL, J., concurs in the result only.
We granted this writ application to determine whether the wife of a worker who was exposed to asbestos at various intervals from 1959 to 1974, and who was diagnosed with and died from mesothelioma in 2002: (1) has a claim for pre-death loss of consortium under La. C.C. art. 2315; and, if so, (2) whether the worker's employers and executive officers and directors of the employers are immune from this claim by virtue of La. R.S. 23:1032. After reviewing the record and the applicable law, we find that to allow the loss of consortium claim would be an impermissible retroactive application of La. C.C. art. 2315, and also, we find that the employers and executive officers and directors are immune from this claim. Therefore, we grant the defendants' exceptions of no cause of action.
FACTS AND PROCEDURAL HISTORY
Raleigh Landry worked for Avondale Industries from 1965 to 1967 and for McDermott, Inc., from 1959 to 1961, 1964 to 1965, and from 1973 to 1974. Plaintiffs allege he was exposed to asbestos during these employments, and that as a result, he contracted mesothelioma, which was diagnosed in January of 2002, and which caused his death on November 21, 2002. Raleigh Landry and his wife, Clailee Landry, filed suit against Avondale and its executive officers, McDermott and its executive officers, and several manufacturers of asbestos products for damages arising from his contraction of mesothelioma, including, but not limited to, loss of consortium claims filed on behalf of Mrs. Landry. By supplemental and amending petition, Jamie Landry and Glen Landry, children of Raleigh Landry, were substituted for Mr. Landry's survival damages, and, along with their mother, asserted survival and wrongful death actions which arose due to the injury and death of Raleigh Landry.
Peremptory exceptions of no cause of action for the loss of consortium claim were filed by the executive officer defendants of Avondale and by McDermott, and separate exceptions of these issues were filed by the manufacturing defendants, Reilly-Benton Company, Inc., and Liberty Mutual Insurance Co. These exceptions were denied by the trial court on October 29, 2002, and November 21, 2002. The trial court gave the following reasons for his judgments:
In Coates v. Owens-Corning Fiberglass Corp., 444 So. 2d 788 (La. App. 4th Cir. 1984) the court held that a cause of action for loss of consortium does not arise until the plaintiff actually suffers the loss. See also Delphen v. Dept. of Transp., 657 So. 2d 328 (La. App. 4th Cir. 1995) for the proposition that until an injured party's condition deteriorates to such an extent that his family is actually deprived of his consortium, society and service, they have suffered no injury.
For similar reasons, this court finds that the instant case involves alleged asbestos-related injuries, which can result in a slowly developing condition which is not even noticeable, much less disabling, until this condition progresses to a point in time wherein a medical diagnosis can be made. Therefore, petitioner Clailee Landry would suffer no injury until her husband's asbestos-related cancer progressed to such an extent that she was actually deprived of his consorti
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