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Austin v. Abney Mills9/4/2002
ifested until July 1998. Under the contraction theory, the court noted, Mr. Hogue's evidence was insufficient to establish that he would be able to satisfy his burden of proving that he had contracted mesothelioma prior to 1975, because Dr. Roggli did not indicate that Mr. Hogue had sustained injury, latent or otherwise, before 1998. The court further noted that Dr. Roggli's "generic conclusions . . . failed to establish even a hint of specific injury . . . prior to 1975." 34,495, p. 9, 785 So.2d at 183. Thus, the court of appeal found no error in the dismissal of Mr. Hogue's negligence claims.
We granted the writ application to determine whether summary judgment in favor of the employer defendants was appropriate.
IV.
Appellate review of the granting of a motion for summary judgment is de novo. Schroeder v. Bd. of Sup'rs of La. State Univ., 591 So.2d 342 (La. 1991). A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La. Code Civ. Proc. art. 966(B). La. Code Civ. Proc. art. 966(C)(2) states the burden of proof in summary judgment proceedings, providing:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. See also Maraist & Lemmon, Louisiana Civil Law Treatise: Civil Procedure, § 6.8 (1999).
In this case, the employer defendants invoke statutory employer immunity under La. Rev. Stat. 23:1032, which we said in Walls, is a special or affirmative defense that the employer bears the burden of proving at trial. Walls, 98-0455, p. 6, 740 So.2d at 1267, citing La. Code Civ. Pro. art. 1005; Berry v. Holston Well Serv., Inc., 488 So.2d 934 (La. 1986). At any rate, to prevail in their motion for summary judgment, the employer defendants must, in addition to showing that there are no genuine issues of material fact, establish the applicable law governing the issue raised and that they are entitled to summary judgment as a matter of law. See Maraist & Lemmon, supra, § 6.8, p. 145.
V.
We first address the argument presented by the employer defendants in support of their motion for summary judgment. For the reasons that follow, we conclude that the date of disability is not the relevant date to decide the issue of when a tort cause of action under La. Civ. Code art. 2315 accrues in a long-latency occupational disease case in which the individual suffers from the disease. Thus, although the defendants may have established that there is no genuine dispute surrounding the date of disability, they have failed to establish that the date of disability is a material fact under the law applicable to this case.
In the instant case, the employer defendants have submitted in support of their motion a document entitled "Long-Term Disability -- Attending Physician's Statement," signed and apparently completed by Robert C. Holladay, M.D. This document indicates that Mr.
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