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Austin v. Abney Mills9/4/2002
sure occurred prior to July 1, 1986, the date the legislature imposed the cap on damages, the damages awarded could not be reduced under the statutory cap.
The facts of Scribner are nearly identical to those of the case at hand. Plaintiff, Mr. Hogue was exposed to the asbestos-containing materials during his employment with the defendant companies during the 1950s, 60s, and 70s. Mr. Hogue's mesothelioma did not manifest itself, however, until 1998, when the 1975 amendment to the workers' compensation laws would have precluded a tort recovery against these employers. Like the Maryland court, we hold that a plaintiff's claim arises at the time of exposure to the agent that later produced a real and diagnosable disease.
Defendants in their most recent reply brief argue that Scribner is distinguishable because all of that plaintiff's asbestos exposures occurred before the enactment of the statute, while in the present case, Mr. Hogue was exposed for some period after the effective date of the workers' compensation statute, in addition to before. However, the case is procedurally before us on a motion for summary judgment, and under the significant tortious exposure theory adopted by this court, there is a genuine issue of material fact whether Mr. Hogue's significant exposures to asbestos before 1975 later resulted in mesothelioma. If Mr. Hogue can prove significant pre-1975 exposures to asbestos, his cause of action "arose" before the 1975 amendment to the workers' compensation laws. Therefore, regardless of any post-1975 exposures, the subsequent amendments cannot retroactively deprive him of the vested property right to bring a tort action against the employer defendants.
VICTORY, J., dissenting
I dissent from the majority's adoption of the significant exposure theory, which holds that it is possible for plaintiff to have an accrued cause of action for mesothelioma decades prior to the time he acquired the disease.
The majority's ruling ignores long-established law found in Gales v. Gold Bond Bldg. Products, Div. Of Nat. Gypsum Co., 493 So. 2d 611 (La. 1986), in which this Court addressed the obligations of successive employers where an employee/claimant's occupational disease resulted from 28 years of exposure to asbestos, before and after the 1975 amendments, while employed by successive employers. In determining the obligations of each of the successive employers, this Court held:
Any employer whose employment of a claimant has contributed causally to his disabling occupational disease is solidarily obligated to him fully for workers' compensation. As between successive employers contributing to an employee's disabling occupational disease, the employer during whose employment the employee was last injuriously exposed to the cause of the occupational disease is fully responsible for all workers' compensation due. 493 So. 2d at 612.
In its analysis, this Court in Gales cited and relied on La. R.S. 23:1031.1 as amended in 1975, even though most of Gales'exposure predated the 1975 amendment. In reaching its holding the Court said:
The occupational disease section provides that the rights and remedies granted therein to an employee or his dependent on account of an occupational disease shall be exclusive of all other rights. La. R.S. 1031.1. The section may be reasonably construed so as to incorporate the compensation compromise: the employee exchanges damage claims for compensation claims against all previous employers who contributed to his occupational disease; the previous employers strike a reciprocal bargain, and are granted immunity from tort suits (emphasis added). Id. at 615 (citing Lowery v. McCormick Asb
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