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Adams v. Asbestos Corp. Ltd.10/28/2005
Before STEWART, CARAWAY, PEATROSS, MOORE and LOLLEY, JJ.
This is an appeal from a summary judgment in favor of the defendant, Eaton Corporation. The trial court determined that asbestos is a covered pathogen under the 1952 version of La. R.S. 23:1031.1, which first provided workers' compensation coverage for occupational diseases, and dismissed the survival action of the plaintiffs, heirs of Walter Counts, on the grounds that workers' compensation provides the exclusive remedy. Because we find no genuine issue of material fact precluding summary judgment, we affirm.
FACTS
This suit is part of ongoing litigation in which a group of plaintiffs joined together to seek damages from several defendants for diseases allegedly caused by long-term exposure to asbestos in the workplace. Plaintiffs in this matter are the heirs of Walter Counts, a former employee of Libbey-Owens-Ford Company ("LOFC") who died of lung cancer on November 28, 1997. Counts' heirs joined the suit in 1998. LOFC was added as a defendant in 1999, and in 2001, Eaton Corporation ("Eaton") was added as a successor-in-interest to LOFC. For clarity, Eaton maintains that it is the parent corporation of Aero-Quip Vickers, Inc., which is the successor-in-interest to LOFC.
On August 4, 2003, Eaton filed a motion for summary judgment seeking to have the plaintiffs' survival and wrongful death actions dismissed on the grounds that workers' compensation provides the exclusive remedy. The focus for purposes of this appeal is the survival action; the parties appear to agree that the wrongful death action is governed and precluded by the current version of La. R.S. 23:1031.1. Another fact not in dispute is that the survival action is subject to the 1952 version of La. R.S. 23:1031.1, which defines an occupational disease as " oisoning by or other disease resulting from contact with" specified substances listed thereafter, including "oxygen, nitrogen, carbon, and their compounds" and "metals other than lead and their compounds." The statute also specifies for coverage diseases caused by exposure to X-rays or radio-active substances, asbestosis, silicosis, dermatosis, and pneumoconiosis. At issue is whether asbestos is an oxygen compound or a metal compound under the 1952 version of La. R.S. 23:1031.1 such that diseases resulting form contact with it are considered occupational diseases covered by workers' compensation.
In support of its motion for summary judgment, Eaton offered the affidavit of Dr. Harry E. Ensley, a professor of chemistry at Tulane University. Dr. Ensley's affidavit states that he studied the chemical composition and structure of the various forms of asbestos and that chemistry involves the study of compounds and their constituents. Dr. Ensley defined "compound" as "a substance containing two or more elements combined in fixed proportions." He then explained that the forms of asbestos contain both oxygen and metals combined with other elements in fixed proportions. As he stated, " ach asbestos compound contains oxygen atoms numbering half or more of the total number of atoms in the compound." He concluded that asbestos is both an oxygen compound and a metal compound. Anticipating the plaintiffs' arguments, Dr. Ensley stated that no commonly used term in chemistry would limit either "oxygen compounds" or "metal compounds" to something less than all chemical compounds containing at least one atom of oxygen or one atom of metal, respectively. Dr. Ensley also asserted that classification of asbestos as a mineral, which is defined as "an element of chemical compound that is normally crystalline ...,"does not change the fact that it is also an oxygen compound and a metal compound.
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