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Austin v. Abney Mills9/4/2002
il Law Treatise § 361, pp. 149-50 (West 1994). Although the employer defendants assert that the 1975 amendment to La. Rev. Stat. 23:1031.1 was intended simply to "expand" coverage for occupational diseases, the fact remains that it is well-established in our law that an individual cannot be divested of an accrued property right by subsequent legislative action. As we explained in Walls:
"Once a party's cause of action accrues, it becomes a vested property right that may not constitutionally be divested." Cole v. Celotex, 599 So.2d at 1063 (citing Crier v. Whitecloud, 496 So.2d 305, 308 (La. 1986); Faucheaux v. Alton Ochsner Med. Found. Hosp. & Clinic, 470 So.2d 878, 879 (La.1985); Lott v. Haley, 370 So.2d 521, 524 (La. 1979); Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381, 1387 (La. 1978); Marcel v. Louisiana State Dep't of Public Health, 492 So.2d 103, 109-10 (La.App. 1st Cir.), writ denied, 494 So.2d 334 (La. 1986)). Therefore, "statutes enacted after the acquisition of such a vested property right . . . cannot be retroactively applied so as to divest the plaintiff of his vested right in his cause of action because such a retroactive application would contravene the due process guaranties." Cole v. Celotex, 599 So.2d at 1063 (quoting Faucheaux, 470 So.2d at 879). Walls, 98-0455, p. 8, 740 So.2d at 1269. See 2 A.N. Yiannopoulos, Louisiana Civil Law Treatise, § 10 (3d ed. 1991) ("Retroactive application of new legislation is constitutionally permissible only if it does not result in impairment of the obligation of contracts or in divestiture of vested rights."); see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 428-29 (1982), and Martinez v. California, 444 U.S. 277 (1980) (holding that a state tort claim is a species of property protected by the due process clause); Anderson v. Avondale Indus., Inc., 00-2799, p. 6 (La. 10/16/01), 798 So.2d 93, 99 ("Once a cause of action accrues, a party has a vested right in the cause of action that a new substantive law cannot take away.").
Although the employer defendants seemingly argue to the contrary, this general rule applies in the context of workers' compensation and occupational diseases as well. Where the act provides no coverage for an occupational disease, the employee enjoys no compensating advantage for the surrender of any tort rights he might have; therefore, he is free to proceed against his employer in tort. See Malone & Johnson, supra, § 361, p. 151 (West 1994). Thus, if the employee acquires a right to sue in tort for a non-covered occupational disease, he cannot later be divested of that right by subsequent legislative expansion of coverage for occupational disease. The Fourth Circuit recently upheld that principle when it held that, because the pre-1975 version of La. Rev. Stat. 23:1031.1 did not include mesothelioma as a covered disease or asbestos as a substance that caused disease, the plaintiffs were not precluded from pursuing a negligence action against their employer. Callaway v. Anco Insulation, Inc., 98-0397 (La. App. 4 Cir. 3/25/98), 714 So.2d 730, writ denied, 98-1034 (La. 11/19/99), 749 So.2d 666.
Because whether mesothelioma was a covered disease prior to 1975 is not at issue here, the court of appeal correctly recognized the issue presented as whether Mr. Hogue's cause of action for mesothelioma accrued prior to 1975. Accordingly, we have squarely before us the issue of what theory is applicable to fix the time when the tort cause of action arises in a long-latency occupational disease case wherein the plaintiff has developed the disease, so as to determine the applicable law: whether it be the "significant tortious exposure" theory we enunciated in Cole, but which was rejected by the lower cou
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