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Austin v. Abney Mills9/4/2002
is determined that Mr. Hogue's cause of action accrued prior to the 1975 and 1976 changes in the law, then restricting his remedy to workers' compensation and immunizing his employer and its executive officers would certainly modify or suppress the effect of any already-acquired tort cause of action.
We stated in Cole:
Accordingly, as the court of appeal correctly recognized, we must decide what legal theory or theories govern the determination of when Mr. Hogue acquired his tort cause of action in this long-latency asbestos-related disease context.
VII.
Under Louisiana law, for a negligence cause of action to accrue, three elements are required: fault, causation and damages. Owens v. Martin, 449 So.2d 448 (La. 1984) (citing Seals v. Morris, 410 So.2d 715, 718 (La. 1982)); Weiland v. King, 281 So.2d 688 (La. 1973). In Cole, we recognized that, although "a sine qua non for accrual of a cause of action is damages, . . . 'Louisiana is generous in its conception of damages, the slightest being sufficient to support an action.'" 599 So.2d at 1063, n. 15 (quoting Ferdinand F. Stone, Tort Doctrine, 12 Louisiana Civil Law Treatise, § 12 (1977)). More recently in Bourgeois v. A.P. Green Industries, Inc., 97-3188 (La. 7/8/98), 716 So.2d 355 (Bourgeois I), we stated that, " hile a 'mere invasion' of an interest is insufficient to support a cause of action, an invasion that brings about some degree of loss or detriment and is capable of repair is the type of consequence envisioned under Article 2315." 97-3188, p. 3, 716 So.2d at 357-58 (citing Stone, supra, § 12). Furthermore, a cause of action may arise before a plaintiff sustains all of the damages occasioned by the defendant's negligence. Harvey v. Dixie Graphics, 593 So.2d 351 (La. 1992).
We initially reject the court of appeal's application of a so-called "manifestation" theory to determine when Mr. Hogue's cause of action accrued. First, without any analysis, the court of appeal ostensibly defines "manifestation" as exhibiting symptoms of the disease such that the individual is disabled and cannot work. Austin, 34,495, p. 7, 785 So.2d at 182. The court of appeal apparently derived this definition of "manifestation" from the medical report submitted by the employer defendants, which indicates that Mr. Hogue was diagnosed with mesothelioma cancer in December 1998, but that he was experiencing symptoms of the disease in July 1998 when he ceased working due to disability. The court of appeal concludes from this report that the disease "manifested" itself in July 1998, and thereby seemingly defines "manifestation" as more than the exhibition of symptoms. Second, the court of appeal's reasoning that compensable injury or damage does not occur unless and until the disease "manifests" itself is myopic, because it cannot be reasonably disputed that Mr. Hogue suffered compensable injury or damage at some earlier date, such as when he contracted the disease or when the exposures to asbestos were such that the disease process had commenced. Certainly at such an earlier stage, the disease would have been more "capable of repair," as Justice Marcus contemplates in Bourgeois I, 97-3188, p. 3, 716 So.2d at 357-58, than when the disease later "manifests" itself by rendering the worker disabled. Third, we previously rejected application of the "manifestation" theory to determine when a tort cause of action accrues in a long-latency, asbestos-related occupational disease case in Bourgeois I, supra.
Furthermore, the adoption of a "manifestation" theory in cases wherein the individual suffers from the disease effectively circumvents the due process prohibition of divesting a person of a vested property right. This is
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