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Austin v. Abney Mills9/4/2002
rts in this case, or a so-called "manifestation" theory, articulated by the court of appeal, or the "contraction" theory, which, as we have previously stated, may be inherently difficult to apply in long-latency occupational disease cases.
In that regard, the employer defendants assert that the "significant tortious exposure" theory articulated in Cole is not an acceptable legal theory under which to determine when Mr. Hogue's cause of action arose. The court of appeal, by contrast, reasoned that "manifestation" of the disease can determine the date of the applicable workers' compensation law. As there appears to be no factual dispute that the mesothelioma cancer did not "manifest" itself until 1998, or that Mr. Hogue became "disabled" in 1998 for purposes of the workers' compensation law, we are confronted with whether the lower courts were correct in rejecting the "significant tortious exposure" theory of Cole for determining the date of accrual of the cause of action in a long-latency occupational disease case.
VI.
As noted above, La. Rev. Stat. 23:1031.1 was amended in 1975 by Acts 1975, No. 583, ยง 2 to define an occupational disease. Nothing in the language of Act 583, which became effective on September 1, 1975, indicates that it should be applied either prospectively or retroactively. Similarly, Act 147 of 1976, amending La. Rev. Stat. 23:1032, is silent as to prospective or retroactive application. However, as we acknowledged in Cole, " rospective operation of statutes is a general rule and, as a general rule, it is respected by the courts." 599 So.2d at 1063 (quoting Dixon, Judicial Method in Interpretation of Law in Louisiana, 42 La. L. Rev. 1661, 1665 (1982)); see also Walls, 98-0455, p. 13, n. 12, 740 So.2d at 1272, n. 12. As we noted in Walls, this general rule is codified in La. Civ. Code art. 6, which also provides the exceptions thereto:
In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary. See also La. Rev. Stat. 1:2 (stating that no statute therein may be applied retroactively unless it is expressly so stated).
Planiol explains the rationale behind such a rule:
New laws should not have a retroactive effect because a fact and an act are governed by the law under whose aegis they took place, and because the solution cannot change on account of the circumstance that when the court rules, the law governing such a fact and act is no longer the same. 1 M. Planiol, Treatise on the Civil Law, sec. 243A (La. St. L. Inst. Trans. 1959).
In Walls, we utilized an analytical framework wherein the court first determines whether a statute actually operates retroactively when applied in a particular case, and, if so, the court then turns to the twofold inquiry under La. Civ. Code art. 6 to determine whether the new statute comes within the exceptions to the rule of prospective application and thereby permissively operates retroactively. Walls, 98- 0455, p. 13, n. 12, 740 So.2d at 1272, n. 12. To determine whether a statute operates retroactively, the court adopted the test articulated by Planiol:
A law is retroactive when it goes back to the past either to evaluate the conditions of the legality of an act, or to modify or suppress the effects of a right already acquired. Outside of those conditions, there is no retroactivity. Planiol, supra, sec. 243.
We find the issue before us can be decided on the second situation identified by Planiol, whether the law modifies or suppresses the effects of a right already acquired. If it
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