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Bonnette v. Conoco9/12/2001
AFFIRMED.
THIBODEAUX, Judge.
The defendant, Conoco Inc., appeals a judgment in favor of the plaintiffs, Jimmy and Brenda Bonnette, et al., in this suit for damages arising from exposure to asbestos. The trial court found that the plaintiffs had experienced increased exposure to harmful respirable asbestos fibers as a result of the failure of Conoco, Inc. to prevent the release of asbestos-containing soil. The court awarded compensatory personal injury damages, property damages, damages for fear of cancer, damages for increased risk of a future injury, and punitive damages. For the reasons listed below, we affirm the awards.
I. ISSUES
We shall examine the following issues:
(1) whether Conoco wantonly and recklessly engaged in the handling, storage or transportation of a hazardous substance;
(2) whether damages for fear of contraction of a future disease may be awarded as the result of exposure to an allegedly hazardous substance;
(3) whether Louisiana recognizes a cause of action for the increased risk of contraction of a disease in the future; and
(4) whether property damages can be awarded for asbestos-contaminated property?
II. FACTS
This case concerns the claims for damages by 143 residents of Westlake, Louisiana, who were found by the trial court to have been exposed to asbestos derived from transite from abandoned houses near a refinery owned by Conoco, the defendant. The houses had been demolished on property owned by Conoco to make way for a new lube oil hydrocracker (LOHC). The residents, the plaintiffs in this case, had purchased dirt from Daigle Bros., Inc., one of three dirt contractors used by Conoco to remove and replace soil from the site where the houses were demolished. Transite was allegedly present in the dirt purchased by the plaintiffs.
Prior to beginning excavation of the site, Conoco performed a "level one" environmental assessment and hired contractors to identify any house that might have contained asbestos. The asbestos contractors placed polyvinyl barriers around the houses while the abatement work was being performed to contain any loose transite that could be dislodged during abatement. Following the abatement, Phillip Environmental, a subcontractor to one of Conoco's independent contractors, performed a visual inspection.
One plaintiff (not included in those before the trial court) discovered small chunks of material that contained asbestos in the soil delivered by Daigle and originated with Conoco. Conoco received inquiries about whether the soil from the project site may have contained asbestos-containing material (ACM) and set up a Hotline for concerned citizens. This Hotline offered a vehicle whereby anyone suspecting that their soil might contain asbestos could have it tested. Conoco offered to remediate any yards which thought to contain soil from the site. A number of plaintiffs accepted the offer, and the soil was removed and remediated by Conoco.
The trial court found that Conoco knew or should have known that the top soil was being sold and delivered to the plaintiffs and that it knew or should have known that the soil contained asbestos. The trial court then found that the plaintiffs had been exposed to an asbestos fiber count which gave them a slight increased risk of developing an asbestos-related disease. Thus, the trial court also found that knowledge of this risk, combined with their general knowledge that asbestos fibers can cause cancer, caused them mental anguish arising out of the fear of developing an asbestos-related disease. The court then awarded the plaintiffs the following amounts
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