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Austin v. Abney Mills9/4/2002
t manifest until after the change in the law. In Cole, we found:
he key relevant events giving rise to a claim in long-latency occupational disease cases are the repeated tortious exposures resulting in continuous, on-going damages, although the disease may not be considered contracted or manifested until later. We further conclude that when the tortious exposures occurring before Act 431's effective date are significant and such exposures later result in the manifestation of damages, pre-Act law applies. Cole, 599 So.2d at 1066.
Since the Cole plaintiffs' exposures occurred under pre-Act law, we held that pre-comparative fault law should apply under the facts of that case.
Since our ruling in Cole, a number of Louisiana appellate cases have applied its reasoning to long-latency disease tort cases involving laws other than comparative fault, such as workers' compensation, products liability, and prescription. See, e.g., Calloway, supra; Pitre v. GAF Corp., 97-1024 (La. App. 1 Cir. 12/29/97), 705 So. 2d 1149, writ denied, 98- 0723 (La. 11/19/99), 749 So. 2d 666; Young v. E.D. Bullard Co., 97-657 (La. App. 5 Cir. 11/25/97), 703 So.2d 783, writ denied, 98-0457 (La. 11/19/99), 749 So.2d 665; Thomas, supra. Some courts have observed that Cole called into question the viability of the contraction theory as a method for determining the accrual of a cause of action in long-latency disease cases. See, e.g., Abadie v. Metropolitan Life Ins. Co., 00-344 (La. App. 5 Cir. 3/28/01), 784 So.2d 46, writ denied, 01-1543 (La. 12/14/01), 804 So.2d 643.
It has been argued that Cole should be restricted to its facts, because we were ultimately only called upon to determine what the term "events" meant under Act 431 and not what constitutes injury or damage in a long-latency occupational disease case. However, such an argument ignores our rationale in that case. In both parts of the Cole opinion where we discussed "injury or damage" under the traditional tort analysis for accrual of a cause of action and "bodily injury" for purposes of triggering insurance coverage, we clearly envisioned that the concept of "significant tortious exposure" in long-latency occupational disease cases could include the concept of injury or damage giving rise to a tort cause of action.
In discussing the meaning of "events" as used in Act 431, we noted that Louisiana courts equate the term with the traditional tort concepts of "accident" and "injury" to hold that, when the accident and the injury occurred before Act 431's effective date, pre-Act law applies. 599 So.2d at 1065 (citing McDermott v. Jester, 466 So.2d 795 (La. App. 4 Cir.), writ denied, 468 So.2d 576 (La. 1985)). We did not th disapprove of such reasoning with regard to traditional torts; instead, we found that such reasoning was too problematic to apply to long-latency occupational disease cases. 599 So.2d at 1065. While we acknowledged that "the requisites for asserting a cause of action are 'a wrongful act and resulting damages,'" we found that such concepts are "designed for handling traditional tort suits, and inept for identifying the key 'events' giving rise to a cause of action for long-term exposure to asbestos in the workplace." Id. We then stated:
The uniqueness of asbestosis cases and the difficulties of trying to fit such cases within the framework of concepts designed to handle traditional torts has been recognized: " 'the factual predicate giving rise to potential liability from asbestos exposure is simply different from those that generated most tort doctrines . . . [and thus such cases differ] in legally important aspects from those types of injuries that present tort doctrines were designed to accommoda
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