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Austin v. Abney Mills9/4/2002
estos Co., 300 Md. 28, 475 A.2d 1168 (1984); Farrall v. Armstrong Cork Co., 457 A.2d 763 (Del. App. 1983)). Thus, because Gales had the right to demand performance of the compensation obligation from each previous and successive employer, this Court recognized that each previous and successive employer was entitled to tort immunity. Id.
Gales cannot be reconciled with the majority's holding in this case. According to plaintiff's theory, now adopted by the majority, he may be entitled to maintain a tort action against an employer for whom he worked prior to 1975; however, all post-1975 employers would be entitled to tort immunity. Gales rejected this result. Instead, it held that each causative employer is obligated for the compensation obligation, and, in order to maintain the necessary quid pro quo, recognized that each causative employer was immune from a tort claim.
The quid pro quo doctrine is at the heart of the analysis of the issue in this case. As so clearly pointed out in O'Regan v. Preferred Enterprises, Inc., 98-1602 (La. 3/17/00), 758 So. 2d 124, 139 , where the Act provides a remedy, the immunity provisions apply and the claimant is not allowed to bring a tort action. See also Roberts v. Sewerage & Water Bd. Of New Orleans, 92-2048 (La. 3/21/94), 634 So. 341, 344. O'Regan held that whenever an employee is entitled to receive compensation, he is precluded from bringing a tort action against his employer:
The "compensation" for which an employee or his dependent "is entitled to" under the Act is the exclusive remedy for such injuries. La. R.S. 23:1031.1(H). Thus, injured employees are not permitted to seek and recover both compensation under the Act and damages in tort. Id. at 138.
Emphasizing the sanctity of this quid pro quo, this Court has cautioned that " bviously, this compromise, in which the employer and employee each surrender valuable rights, could not be effectuated if either party were free to ignore the Act whenever it would be to his advantage to do so." Roberts v. Sewerage & Water Board, supra at 344 (citing Malone & Johnson, Workers' Compensation, § 4.6 (2d 1980). In this case, because the Act provides a remedy when the employee becomes disabled, the immunity provisions of the Act also apply. See Roberts, supra at 344 (" bviously, the same principles which decide the question of whether compensation is payable, also are used to decide the question of whether a tort remedy must be denied"). As Malone and Johnson have pointed out, " ith the 1975 amendments providing general occupational disease coverage under the Act, however, there would remain no occasion to litigate such matters in tort proceedings against the employer." Malone & Johnson, § 361.
In sum, under well-established law, because this plaintiff clearly has a remedy in workers' compensation for his occupational disease, he is precluded from seeking recovery in tort. The majority, by ignoring these principles, strains mightily to secure a tort remedy for plaintiff. This attempt creates serious problems for this plaintiff and all similarly situated plaintiffs. I will point out a few of them.
One problem, which the majority clearly recognizes as so serious that it addresses the issue in dicta although it is not yet before us in this case, is the issue of prescription. Obviously, if the cause of action accrues upon "significant exposure" to asbestos, prescription begins to run at that time. The majority attempts to solve this problem in advance by stating, in dicta, that the fourth category of contra non valentem would apply to suspend the running of prescription in this case. The majority, however, misinterprets the law in this area by analog
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