Emery v. Owens-Corporation
2001 WL 1391041, 813 So.2d 441 (2001)
Rule of Law:
When an asbestos exposure causing injury occurred prior to the effective date of Louisiana's Comparative Fault Law, liability among joint tortfeasors is determined by pre-comparative fault 'virile share' principles, requiring each liable tortfeasor to pay an equal share of damages.
Facts:
- From approximately 1965 to 1970, Wayne Bendily worked intermittently as an insulator at Exxon's Baton Rouge refinery.
- During his employment, Wayne Bendily was exposed to asbestos-containing materials at the refinery.
- Exxon had published a report in 1937 concluding a causal relationship existed between exposure to asbestos-containing dust and asbestosis, but this information was not disclosed to all management or workers.
- Wayne Bendily was diagnosed with an asbestos-related injury (asbestosis).
- Wayne Bendily experienced changes in his physical abilities, including shortness of breath, impacting his ability to engage in activities with his wife, Mary Bendily.
- Mary Bendily observed a decrease in their shared physical activities and anticipated increased caregiving and household duties as Wayne's condition progressed.
Procedural Posture:
- Clifford Wayne Bendily and Mary Bendily, among others, filed a lawsuit on February 2, 1996, naming numerous defendants including Exxon Mobil Corporation (Exxon) as a premises owner, and Anco Insulations Inc. (Anco) as an employer.
- The lawsuit alleged that various corporate defendants engaged in activities related to asbestos and asbestos-containing materials that caused Wayne Bendily's injury.
- Other plaintiffs amicably resolved their claims with all other defendants, leaving only the Bendilys' claims against Exxon and the Anco defendants for trial.
- After a five-day trial, a jury rendered a verdict finding Wayne Bendily had an asbestos-related injury and that Exxon, Pittsburgh Corning Corporation, Johns-Mansville, Owens-Corning, Riley Stoker, FlintKote Company, and Combustion Engineering were liable.
- The jury awarded Wayne Bendily $780,000 and Mary Bendily $75,000, and expressed specific percentages of fault for each liable entity and Wayne Bendily (0%).
- On October 1, 1998, the trial court signed a judgment awarding $195,000 to Wayne Bendily and $18,750 to Mary Bendily against Exxon, which reflected a 75% reduction based on the jury's comparative fault determination.
- The trial court's judgment dismissed the Bendilys' claims against the Anco defendants.
- Exxon appealed the trial court's judgment, and the Bendilys answered the appeal, challenging some of the jury's fault assignments.
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Issue:
1. Does the pre-1976 version of Louisiana's workers' compensation statute (La. R.S. 23:1061) provide tort immunity to a premises owner as a statutory employer for an independent contractor's employee? 2. Did the trial court err in applying comparative fault principles to an asbestos exposure occurring before the effective date of the Louisiana Comparative Fault Law, rather than pre-comparative fault virile share principles? 3. Was there a sufficient evidentiary basis to support the jury's findings of concurrent causation for all named manufacturers and premises owners, and the awards for fear of cancer, future medical expenses, loss of consortium, and future pain and suffering?
Opinions:
Majority - Kuhn, J.
No, the pre-1976 version of Louisiana's workers' compensation statute (La. R.S. 23:1061) did not grant tort immunity to a principal based on statutory employer status, and the trial court did not err in applying pre-comparative fault principles to determine the virile share of liable tortfeasors. The court affirmed the trial court's conclusion that Exxon was not Wayne Bendily's statutory employer because the injury-producing exposure occurred prior to the 1976 legislative amendment that codified the "integral relationship" test, and until then, tort immunity for principals was granted jurisprudentially through Thibodaux v. Sun Oil Company rather than by statute. The determination of statutory employer status is a question of law for the court. The court found that the trial court erred by allowing the jury to determine percentages of fault under comparative fault principles, as Wayne Bendily's exposure predated the Louisiana Comparative Fault Law. Citing Cole v. Celotex Corp., pre-comparative fault "virile share" principles apply, meaning each joint tortfeasor is liable for an equal share. The court reviewed the jury's concurrent causation findings under the manifest error rule. It affirmed the jury's findings of liability for Exxon, Pittsburgh Corning Corporation, Johns-Mansville, and Owens-Corning, but reversed the findings against Riley Stoker, Combustion Engineering, and FlintKote Company due to insufficient evidence of duration or intensity of exposure to their products, which was necessary to establish substantial causation. Consequently, with four established joint tortfeasors, Exxon's virile share was determined to be one-fourth (25%). The court affirmed the jury's damage awards, finding a reasonable factual basis for Wayne Bendily's fear of cancer and future medical expenses, and Mary Bendily's loss of consortium and Wayne's future pain and suffering.
Analysis:
This case clarifies the retroactivity of Louisiana's comparative fault laws in asbestos litigation, firmly establishing that for exposures predating the 1979 Comparative Fault Law, "virile share" principles apply, leading to equal liability among joint tortfeasors. It reinforces the high evidentiary bar for proving causation against multiple defendants in such cases, particularly regarding the duration and intensity of exposure to specific products. Furthermore, the ruling emphasizes that the determination of statutory employer status is a legal question for the court, not the jury, and interprets pre-1976 workers' compensation statutes narrowly regarding tort immunity for principals, impacting how premises owners' liability is assessed in long-latency occupational disease cases.
