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Cichirillo v. Avondale Industries11/29/2005
JOHNSON, J., concurs.
VICTORY, J., concurs.
The sole issue in this case is whether decedent's suit for damages for asbestosis, filed in a Mississippi court seven years prior to decedent's diagnosis of mesothelioma, interrupted prescription from running in this suit filed more than three years after his diagnosis of mesothelioma. Finding as a matter of law that interruption of prescription did not occur, we reverse the appellate court's judgment and reinstate the judgment of the trial court granting an exception of prescription in favor of defendants, Peter Territo and Avondale Industries, Inc., as to the action for damages filed by Sam P. Cichirillo.
FACTS AND PROCEDURAL HISTORY
Sam P. Cichirillo enlisted in the United States Navy in December of 1941 and served until August 1961, during which time he worked at Ingalls Shipyard in Pascagoula, Mississippi. After retiring from the Navy, he accepted a job at Avondale Shipyard where he remained employed until 1984. In April 1991, Cichirillo was diagnosed with asbestosis. In March 1992, numerous plaintiffs (including plaintiff herein) filed suit against numerous defendants in state court in Mississippi for damages sustained as a result of occupational exposure to asbestos fibers at Ingalls Shipyard and other locations in the southeastern United States.
In May of 1999, Cichirillo was diagnosed with mesothelioma. In December of 2002, he filed suit in Louisiana naming a number of defendants, including Avondale Industries, Inc. and Peter Territo, an executive officer of Avondale Industries, Inc., (hereafter "Avondale defendants") alleging he contracted mesothelioma as a result of his exposure to asbestos during military service and while employed as an electrician by Avondale Industries, Inc. from 1961 to 1984. The petition alleges the defendants contributed to plaintiff's exposure "to asbestos and asbestos containing products designed, manufactured, fabricated, assembled, installed, supplied, sold, marketed, distributed, warranted, and/or advertised by the defendants named herein."
Territo filed a motion to strike and exceptions of lis pendens and no cause of action for post-October 1976 exposure. Judgment rendered on March 10, 2003, on those issues is not before this court. Territo also filed an exception of prescription on June 18, 2003, asserting that plaintiff knew as early as May 1999 that he suffered from mesothelioma and that suit was filed more than one year following that knowledge. Several other defendants filed exceptions of prescription or joined in the exception filed by Territo.
Defendants' exceptions of prescription were scheduled for hearing on September 5, 2003. The trial court granted judgment in favor of Territo. In light of the court's ruling granting the exception of prescription filed by Territo, the court indicated there was no reason to hear the remaining exceptions and granted judgment in favor of the other defendants, dismissing plaintiff's suit. Plaintiff appealed.
Finding prescription had been interrupted by timely filing a cause of action in Mississippi, in a court of both competent jurisdiction and venue, the court of appeal reversed and remanded the matter for further proceedings. Cichirillo v. Avondale Industries, Inc., 04-0131 (La.App. 4 Cir. 10/27/04), 888 So.2d 947. The court relied on LSA-C.C. arts. 3462 and 1799, and the case of Taylor v. Liberty Mutual Insurance Company, 579 So.2d 443 (La. 1991), to find that prescription was interrupted by the timely filing of suit in Mississippi.
Defendants, Peter Territo and Avondale Industries, Inc., applied for writ of certiorari. Writs were granted in order to determine the co
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