Summary
In Allred, supra, while the appellate court acknowledged the possibility that NIHL constituted an occupational disease, it reversed the district court's summary judgment conclusion that NIHL was an occupational disease partially on grounds of insufficient evidence to support of the motion for summary judgment.
Summary of this case from Arrant v. Graphic Packaging Int'l, Inc.Opinion
NUMBER 2012 CA 0424
04-16-2013
MARION L. ALLRED, ET AL. v. GEORGIA-PACIFIC CORPORATION
Frank Tomeny, III Catherine L. Plauche Baton Rouge, LA Harry T. Lemmon New Orleans, LA Kelly N. Reddell Dallas, TX Counsel for Plaintiffs/Appellants Marion L. Allred, et al. E.B. Dittmer, II Mandeville, LA H. Alston Johnston, II J. Alan Harrell Baton Rouge, LA John P. Manard, Jr. S. Ault Hootsell, III New Orleans, LA Counsel for Defendant/Appellee Georgia-Pacific Corporation
Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Suit Number 540,397
Honorable Kay Bates, Judge
Frank Tomeny, III
Catherine L. Plauche
Baton Rouge, LA
Harry T. Lemmon
New Orleans, LA
Kelly N. Reddell
Dallas, TX
Counsel for
Plaintiffs/Appellants
Marion L. Allred, et al.
E.B. Dittmer, II
Mandeville, LA
H. Alston Johnston, II
J. Alan Harrell
Baton Rouge, LA
John P. Manard, Jr.
S. Ault Hootsell, III
New Orleans, LA
Counsel for
Defendant/Appellee
Georgia-Pacific Corporation
BEFORE: CARTER, GUIDRY, AND GAIDRY, JJ.
GUIDRY , J.
In this class action lawsuit brought by over seventy past and current employees of the Georgia-Pacific Corporation ("GP") plant located in Port Hudson, Louisiana, the plaintiffs appeal a summary judgment rendered in favor of GP dismissing their tort suit based on the exclusivity provisions of the Louisiana Workers' Compensation Act ("LWCA"), La. R.S. 23:1020 et seq. For the reasons that follow, we reverse and remand this matter to the trial court for further proceedings.
PROCEDURAL HISTORY
In their original petition for damages, the plaintiffs alleged the following:
At various times between 1945 to present, the Plaintiffs ... were employed as direct employees at [GP's] facility owned and operated by [GP] in E. Baton Rouge Parish, Louisiana. During their employment at [GP's] facility, Plaintiffs were occupationally exposed to hazardous levels of industrial noise. As a result, Plaintiffs have suffered hearing loss. It is specifically plead that the hearing loss suffered by Plaintiffs was gradual and as a result of continuous long term hazardous noise exposure at [GP's] facility and not an "accident[.]"The plaintiffs later filed a first supplemental petition in which they added Timothy H. Crawford, as an executive officer with GP, as defendant in the suit. Plaintiffs then filed three more supplemental and amending petitions simply adding additional plaintiffs to the suit.
In arguments presented below, GP points out that the Port Hudson facility did not begin operating until the late 1960s and that the earliest date of employment for any plaintiff at the facility was approximately in the year 1968, which the plaintiffs conceded.
As the matter proceeded to trial, the parties agreed to select eight plaintiffs (referred to as "first-flight trial" plaintiffs) as representatives for a first trial grouping. Once the first-flight trial plaintiffs were selected, GP and Mr. Crawford filed a peremptory exception urging the objection of prescription as to the claims of the first-flight trial plaintiffs and then filed a motion for summary judgment alleging that the claims of the first-flight trial plaintiffs were subject to the exclusive remedy of workers' compensation. The plaintiffs filed a cross motion for summary judgment, seeking a ruling that their claims were not subject to the exclusive remedy of workers' compensation.
Following a hearing on the exception and cross motions for summary judgment, the trial court sustained the peremptory exception, granted GP and Mr. Crawford's motion for summary judgment, and denied the plaintiffs' cross motion. Judgment was then rendered dismissing the claims of the first-flight trial plaintiffs with prejudice. Thereafter, the plaintiffs filed a motion for new trial, and GP and Mr. Crawford filed another motion for summary judgment seeking dismissal of the claims of the remaining plaintiffs on the ground that their exclusive remedy was workers' compensation. Following a hearing on these subsequent pleadings, the trial court denied as untimely the motion for new trial filed by the plaintiffs and granted the motion for summary judgment filed by GP and Mr. Crawford. Accordingly, the trial court dismissed the claims of all the remaining plaintiffs against GP and Mr. Crawford. It is from this judgment that the plaintiffs appeal.
In that judgment, signed September 28, 2011, the trial court expressly found that Mr. Crawford was immune from suit due to the 1976 amendment to the LWCA, and therefore the court dismissed the plaintiffs1 claims against Mr. Crawford with prejudice. The judgment further denied as moot a motion previously filed by the plaintiffs in which they sought dismissal of their claims against Mr. Crawford without prejudice. In their appellate brief, the plaintiffs observe that the trial court had previously signed an order on September 22, 2011, granting their motion to dismiss their claims against Mr. Crawford without prejudice, but acknowledged that the judgment in favor of Mr. Crawford is "not at issue in this appeal."
ASSIGNMENTS OF ERROR
1. The district court erred by granting summary judgment for Appellee on its affirmative defense under the LWCA, where Appellee failed to meet its burden to prove when each Appellant's cause of action accrued for purposes of determining what law applies.
2. The district court erred by granting summary judgment where Appellee failed to meet its burden to prove that each Appellant's gradual hearing loss was ever an "accident" as defined by any version of the LWCA.
3. The district court erred by granting summary judgment where Appellee failed to meet its burden to prove that each
Appellant's hearing loss was ever an "occupational disease" as defined by any version of the LWCA.
4. The district court erred by granting summary judgment where Appellee failed to meet its burden to prove that Appellant's injuries were compensable, as explicitly required by the exclusivity provision of the LWCA
STANDARD OF REVIEW
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Cooperative, Inc., 01-2956, p. 3 (La. App. 1st Cir. 12/30/02), 836 So. 2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). An appellate court reviews a trial court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. George S. May International Company v. Arrowpoint Capital Corporation, 11-1865, p. 4 (La. App. 1st Cir. 8/10/12), 97 So. 3d 1167, 1170.
The mover bears, the burden of proving that he is entitled to summary judgment. La. C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. La. C.C.P. art. 966(C)(2). If, on the other hand, the mover will bear the burden of proof at trial, that party must support his motion with credible evidence that would entitle him to a directed verdict if not controverted at trial. Mines v. Garrett, 04-0806, p. 3 (La. 6/25/04), 876 So. 2d 764, 766. Such an affirmative showing will then shift the burden of production to the party opposing the motion, requiring the opposing party either to produce evidentiary materials that demonstrate the existence of a genuine issue for trial or to submit an affidavit requesting additional time for discovery. Hines, 04-0806 at p. 3, 876 So. 2d at 766-67.
An employer seeking to avail itself of tort immunity bears the burden of proving its entitlement to immunity. Furthermore, immunity statutes must be strictly construed against the party claiming the immunity. Mitchell v. Southern Scrap Recycling, L.L.C., 11-2201, pp. 7-8 (La. App. 1st Cir. 6/8/12), 93 So. 3d 754, 758, writ denied, 12-1502 (La. 10/12/12), 99 So. 3d 47.
DISCUSSION
At issue in this case is whether the LWCA provides coverage for the plaintiffs' hearing loss claims such that the exclusivity provisions of the LWCA would bar their tort action. A motion for summary judgment is an appropriate vehicle within which to raise the issue of the exclusive remedy provisions of the LWCA. See Lee v. State, ex rel. Department of Public Safety and Corrections, 10-1013, p. 7 (La. App. 3d Cir. 3/30/11), 60 So. 3d 106, 110, writ not considered, 11-0914 (La. 6/17/11), 63 So. 3d 1030.
See La. 23:1031.1(H) and La. R.S. 23:1032.
In O'Regan v. Preferred Enterprises, Inc., 98-1602, p. 14 (La. 3/17/00), 758 So. 2d 124, 134, the Louisiana Supreme Court recognized that "the Legislature cannot completely deprive citizens of the right to seek a remedy either under the [LWCA] or under our general law." (Emphasis added.) The Court further held that "[a] conceptual distinction must be made between injuries which do not come within the [LWCA's] coverage provisions and injuries which are covered, but for which no compensation is payable." O'Regan, 98-1602 at p, 20, 758 So. 2d at 137. "If the claim is not covered under the [LWCA], then the exclusivity provision does not apply. There has been no quid pro quo and thus the claimant has not lost the right to sue in tort." O'Regan, 98-1602 at p. 23, 758 So. 2d at 138.
In its reasons for judgment, the trial court expressly found that "the claim of occupational noise exposure is precisely the type of claim that is covered by the [LWCA], either under the pre-1990 definition of personal injury by accident, or by the post-1975 general coverage of occupational diseases." The pre-1990 definitions of accident, injury, and personal injury contained in La. R.S. 23:1021 provided:
"Accident" means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.
"Injury" and "personal injuries" include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused of contracted.
In 1975, the definition of "injury and personal injuries" was only slightly changed with respect to changing the spelling of personal injuries from being capitalized to all lowercase and to change "includes" to "include."
GP successfully argued to the trial court that the plaintiffs' gradual hearing loss claims arising before 1990 should be classified as "accidents" under the LWCA in accordance with jurisprudence holding progressively developing injuries fell within the pre-1990 statutory definition of "accident." Those cases largely held that "when the performance of the usual and customary duties of a workman cause or [c]ontribute to a physical breakdown, the statutory requirements for an accidental injury are present." See e.g., Parks v. Insurance Company of North America, 340 So. 2d 276, 281 (La. 1976).
Notably, in the cases representing the foregoing principle, the workers were found to be disabled by the injury, and there was an acute onset of the injury to support the finding of accidental injury. As explained by this court in Geist v. Martin Decker Corp., 313 So. 2d 1, 4 (La, App. 1st Cir. 1975), an accident can be satisfied by the unexpected appearance of symptoms of pain or disability, or an unexpected change in the employee's physical condition caused by routine working conditions. Thus, "an acute condition which occurs suddenly and unexpectedly, which results from an employee's working conditions, which causes damage to or disruption of a bodily organ or component, and which disables the employee, is a compensable injury within the definition of the term 'injury.'" Geist, 313 So. 2d at 5 (emphasis added). Moreover, in explaining the difference between an injury that would be deemed an "accident" as opposed to an "occupational disease," this court pointed out "that where an employee suffers a gradual health impairment produced by working conditions over a protracted period of time, the resulting disability is classified as an occupational disease, but where the onset of the disease is sudden due to its acuteness, the condition constitutes an accident." Geist, 313 So. 2d at 4-5 (emphasis added).
According to the evidence presented in support of GP's motion for summary judgment, there is no showing of a sudden or acute onset of the plaintiffs' hearing loss that would justify finding that their hearing loss claims would fall within the pre-1990 definitions of "accident," "injury and personal injuries." Thus, we find merit in the plaintiffs' second assignment of error alleging that the trial court erred in holding that the plaintiffs' claims of hearing loss would be covered under the LWCA's pre-1990 definition of "accident."
Nevertheless, as previously stated, the trial court additionally found that the plaintiffs' claims of occupational noise exposure are also "precisely the type of claim that is covered by the [LWCA] ... by the post-1975 general coverage of occupational diseases."
The Louisiana Legislature first added a provision for occupational disease claims in 1952; however, the coverage provided was only for a schedule of diseases, which did not include "hearing loss." See Rando v. Anco Insulations. Inc., 08-1163, pp. 12-13 (La. 5/22/09), 16 So. 3d 1065, 1078. Then, in 1975, instead of continuing to simply provide a schedule of diseases that would be deemed occupational if contracted by an employee in the course and scope of his employment, and therefore covered as an "occupational disease" under the LWCA, the Louisiana Legislature specifically provided the following definition of "occupational disease" in La. R.S. 23:1031.1(B):
An occupational disease shall mean only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. [Emphasis added.]
The current definition remains virtually the same, with the only change being that "means only" was substituted for "shall mean only" by a 1989 amendment of the statute.
Thus, to constitute an "occupational disease," a causal link between the plaintiffs' hearing loss and their work-related duties must be established by a reasonable probability. See Seal v. Gaylord Container Corporation, 97-0688, p. 6 (La. 12/2/97), 704 So. 2d 1161, 1165. In other words, it must be shown that the disease was contracted during the course of employment and that the disease was the result of the nature of the employment. Carmean v Enterprise Products Partners, 00-1919, p. 7 (La. App. 1st Cir. 11/9/01), 804 So. 2d 95, 101, writ denied, 02-0477 (La. 4/18/02), 813 So. 2d 1092. More importantly, however, expert testimony in the form of certified reports, depositions, or oral examination in open court, is required to support a finding of an occupational disease. Fite v. Louisiana Title Company, 02-2607 (La. 6/27/03), 852 So. 2d 983, 984; see also LAC 40:1.6209. Thus, the mere fact that the plaintiffs allege that their gradual hearing loss occurred as a result of employment with GP is not sufficient to establish that their gradual hearing loss "is due to causes and conditions characteristic of and peculiar to" the plaintiffs' particular trade, occupation, process, or employment with GP.
Typically, the worker bears the burden of proving the contraction of an occupational disease; however, "if the employee pursues a claim in tort initially and the employer seeks to avail itself of tort immunity under [the LWCA], the employer has the burden of proving entitlement to immunity." O'Regan, 98-1602 at p. 25 n.20, 758 So. 2d at 140 n.20. In the matter before us, the plaintiffs pursued a tort suit, and according to the record, have not pursued any workers' compensation claims such that burden of proof would fall on them to show that their claims are not occupationally-related. See O'Regan, 98-1602 at pp. 25-26, 758 So. 2d at 139-40. Thus, the burden of proof lay with GP.
At the combined hearing on the exception urging prescription filed by GP and on the parties' cross motions for summary judgment (regarding the applicability of exclusivity provisions of the LWCA), GP submitted the depositions of the first-flight trial plaintiffs. In their depositions, the first-flight trial plaintiffs testified regarding hearing examinations they had received, but no direct evidence from any expert was presented by GP in regards to the plaintiffs' alleged hearing loss and their work for GP at the Port Hudson facility. As such evidence is required to establish that the plaintiffs' hearing loss claims would constitute an occupational disease, and none was presented by GP, we likewise find merit in the plaintiffs' third assignment of error asserting that the trial court erred in holding that the plaintiffs' claims of hearing loss would be covered under the LWCA's post-1975 definition of occupational disease.
GP also submitted copies of the plaintiffs' original and supplemental petitions filed in this matter, the petition in another case, and two rulings from other courts in unrelated cases. Although this evidence was submitted in conjunction with the prior summary judgment, wherein the claims of the first-flight trial plaintiffs were dismissed, the trial court stated that its ruling on the summary judgment appealed herein was based on the same reasons it found GP was immune from the first-flight trial plaintiffs' suit in the first summary judgment proceedings.
As a result of our finding merit in the plaintiffs' second and third assignments of error, we will pretermit discussion of the plaintiffs' first and fourth assignments of error and reverse the summary judgment appealed herein.
CONCLUSION
For the foregoing reasons, we find that the trial court improperly found that the plaintiffs' claims of hearing loss are subject to the exclusivity provisions of the Louisiana Workers' Compensation Act. We, therefore, reverse the summary judgment rendered by the trial court and remand this matter for further proceedings. All costs of this appeal are cast to the defendant, Georgia-Pacific Corporation.
REVERSED AND REMANDED.