Thursday, December 29, 2011

Rando v. Anco Insulations Inc., et al, 16 So.3d 1065 (La. 5/22/09)

Facts of the Case

Ray Rando was a pipe-fitter who worked for both Jacobs Construction, Inc. (JCI) and Parsons Infrastructure & Technology Group (Parsons) in the early 1970s. He alleged that while he was employed by these companies, he was exposed to asbestos. As a result of this exposure, he contracted mesothelioma in 2005. He filed suit against these companies as well as other employers, premises owners, and manufacturers of asbestos-containing products soon thereafter. Against JCI and Parsons, he alleged onlooker exposure to asbestos, as insulators who were not employees of either company were using the asbestos-containing products at the job sites.

The Procedural Posture of the Case

At the Trial Court level, the defendants motioned for summary judgment, arguing that the exclusivity provision of the Louisiana’s Workers Compensation Act (LA RS 23:1031.1) barred Rando’s tort claims against them. The Trial Court applied the 1952 version of the Louisiana’s Workers Compensation Act (LA RS 23:1031.1), the law which was effective at the time of Rando’s exposure. Subsection A contains a list of occupational diseases which are covered under the Act. Also, Subsection F states “the rights and remedies herein granted to an employee or his dependent on account of an occupational disease for which he is entitled to compensation under this chapter shall be exclusive of all other rights and remedies of such employee . . .” The court held that because mesothelioma was not included in the list of diseases under the 1952 version of the Act, the tort claims made by Rando were not barred.

JCI and Parsons appealed, arguing that the trial court erred in its judgment and that the claims were perempted. They argued that actions involving deficiencies in design, supervision, or construction of improvements to immovables were subject to a 10 year peremptive period, and that this 10 years had already elapsed.

The Appellate Court affirmed the Trial Court’s decision, holding that mesothelioma was not a covered occupational disease as contemplated by the 1952 version of the Act. Further, the court said that asbestos was not a covered substance that caused an occupational disease. Therefore, an employee could assert tort claims against his employers for contracting mesothelioma, as it did not fall under exclusivity provisions.

Further, the court held that these claims were not perempted because JCI had ultimate control of the construction project at the time of Rando’s exposure. The Court also held that the action had not been perempted, as the immovable improvements were within the control of JCI.


1. Is mesothelioma an occupational disease under the 1952 version of the Louisiana Workers’ Compensation Act such that employers are immune from suit for asbestos exposures suffered by their employees between 1952 and September 1, 1975 (the effective date of the revised compensation act)?
2. Was this claim perempted?
3. Was JCI liable for Rando’s mesothelioma?


1. No, mesothelioma is not an occupational disease according to the 1952 Act, and therefore, employers are subject to suit by mesothelioma claimants for asbestos exposures occurring on their premises prior to 1975.
2. No.
3. Yes.


Interpreting the 1952 Act
In order to determine if mesothelioma was considered an occupational disease under the 1952 version of the Louisiana Workers’ Compensation Act, the Louisiana Supreme Court first turned to the rules of statutory interpretation. If the words of the law are unclear, those words must be given the meaning “that best conforms to the purpose of the law.” Further, the Court stated that the history of the movement for workers’ compensation must be taken into account when trying to ascertain the meaning of these laws. Historically, the court liberally applies this law, but the immunity provisions are narrowly construed. Furthermore, early decisions regarding this Act stated that the purpose of this act was to provide a sort of social insurance to employees who were injured and unable to work, as they were unlikely to prevail in any tort claims in those days. Originally, the Act was meant to cover work-related accidents, but as time passed, judicial interpretation of the statute began classifying occupational illnesses as “accidents” for the purposes of the statute. This judicial interpretation was codified into law in 1952, and all covered occupational diseases were specifically listed.
The 1952 version of the Act clearly broadened its coverage, but it unambiguously states that it only applies to the occupational diseases which are clearly listed in the statute itself. Because of this language and the fact that neither mesothelioma nor asbestos are listed, they are not included in the coverage of the Act. While the Act does list asbestosis as an occupational disease, it was the only disease under the Act with a known connection to asbestos exposure. In 1952, it was unknown that mesothelioma also resulted from asbestos exposure, so interpreting the 1952 version in such a way as to include mesothelioma would be against its intended purpose and the schedule in the law itself. Further, it was clear that the legislature intended to change this law in 1975 when coverage was broadened even further, which supported the meaning argued by Rando.


The Trial Court found that peremption did not apply because the construction in this case was in JCI’s possession or control as “owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death . . .” JCI appealed on the grounds that this exception enumerated by the lower court only applied to those having long-term control of the property. The elements of the peremptive period were met, as this was an improvement to immovable property and the suit was filed more than 10 years after this improvement was completed and occupied. Because of this, Rando had to prove that the exception applied by proving that JCI was in possession or control of the improvement and that the injury occurred while they were in control.

The Louisiana Supreme Court focused on the use of the word “otherwise” in the statute, which indicates an inclusive interpretation. Because of this word, contractors are not excluded from this exception. The court determined that Rando’s injury occurred when he was exposed to asbestos, which satisfied the injury element of the above exception. The court also determined that the words “possession or control” were indicia of one who has custody. This entity does not necessarily have to be the owner of the immovable. Further, even though the owner may provide contract specifications or have some level of control over the improvement’s construction that does not determine whether the owner is actually in possession of the improvement. Here, the project was turned over to JCI, and it was responsible for all aspects of this project, which supported the Trial Court’s conclusion that they were in possession or control of the project.


In order for JCI to be found liable, five elements had to be proven. First, the defendant had a duty to conform his conduct to a specific standard of care. Second, the defendant failed to conform his conduct to that standard. Third, the defendant’ breach of the duty was the cause-in-fact of the plaintiff’s injuries. Fourth, the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries. Fifth, the plaintiff must have suffered actual damages. (The second and fifth elements will not be discussed as they have clearly been met.)

The Court found that there was a duty in this case, as an employer has the duty to furnish employment which is reasonably safe for the employees therein. Here, the court stated that because asbestos was known to be harmful at that time, JCI had a duty to protect their employees, including Rando, from asbestos exposure. Even though it was not yet known that there was a causative link between asbestos exposure and mesothelioma, asbestos was still considered dangerous because it caused asbestosis, a covered occupational illness.

In order to prove cause-in-fact in an asbestos case, the plaintiff must show that he was exposed to asbestos and he received an injury that was caused by that exposure. Here, Rando was able to show records and expert testimony that tended to prove that asbestos was used in the pipes that Rando worked with. However, in asbestos cases, the plaintiff must also prove that the exposure to the product complained of was a substantial factor in the cause of the injury. In other words, the plaintiff must prove that the exposure was prolonged and not fleeting. Here, Rando testified to seeing clouds of dust at the work site, which indicates a large concentration of asbestos particles. Further, expert testimony indicated that as an onlooker, he may have suffered greater exposure than the person actually working with the asbestos-containing product.

As for legal cause, the plaintiff must prove that the risk of the harm which eventually occurred was within the scope of the defendant’s duties to the plaintiff; essentially, he must prove that the risk was foreseeable. Here, it is clear that there were studies and standards which identified asbestos as a potentially harmful substance that employers must guard their employees against. By 1971, it was clear that asbestos was harmful, and it was also clear that onlookers were also at risk of exposure.

Tuesday, December 20, 2011

Bozeman v. Union Carbide Corp.,
70 So.3d 169 (La.App. 2 Cir. 6/22/11)

Facts of the Case

Jerry Bozeman was employed as a fireman for the city of Shreveport from 1965 until his retirement in 1998.  The fire station in which he worked, specifically Fire House No. 8, was constructed in the 1920s.  Allegedly, many asbestos containing products were utilized in the construction of the building; the building was also apparently in a chronic state of disrepair, which caused Mr. Bozeman to be constantly exposed to asbestos.  Further, Mr. Bozeman was also allegedly exposed to the substance from the fire hoses that they used, which were insulated with asbestos.

In August 2004, Mr. Bozeman was diagnosed with diffuse malignant mesothelioma, demoplastic type.  He died from this very condition in February 2005.  His sons, Corey and Matthew Bozeman, filed suit in August 2005 for wrongful death damages as well as a survival action claim against the City of Shreveport as well as other manufacturers and suppliers of the asbestos-containing products.  However, the only relevant defendant for the purposes of this summary is the City.

The Procedural Posture of the Case

            After the suit was filed, the City filed a motion for summary judgment, alleging that the plaintiffs’ claims fell under the Louisiana Workers’ Compensation Act; they also filed exceptions of a lack of subject matter jurisdiction and no cause of action.  The Court rendered its judgment in May 2007, denying the motion for summary judgment and the exception of lack of subject matter jurisdiction; however, the exception of no cause of action was granted as to their claims for wrongful death and non-intentional torts allegedly committed by the City.

            In June 2009, the plaintiffs filed a motion in the trial court to have the judgment made in 2007 reconsidered.  The plaintiffs alleged that since the judgment was made, the law had changed due to the Supreme Court’s ruling in Rando v. Anco Insulations, Inc., which ruled that mesothelioma was not covered under the pre-1975 version of the Louisiana Workers’ Compensation Act as an occupational disease.  Therefore, the judgment had been effectively overruled, according to the plaintiffs.  This motion was denied by the court.

            After this, the plaintiffs filed a motion to have the 2007 judgment designated as final for the purposes of appeal, which the trial court granted in 2010.  The plaintiffs then appealed the judgment to the Louisiana Second Circuit Appellate Court to reconsider the 2007 judgment. 


1.  Was the plaintiffs’ appeal timely?
2.  Does the holding of the Rando case apply retroactively to the case at hand?


1. Yes.
2. Yes, the Rando case applied retroactively, and the judgment of the trial court was reversed.

Timeliness of the Appeal

            The court determined that the appeal in this case was timely.  According to Louisiana Code of Civil Procedure Article 1915(B)(1): 
When a court renders a partial…summary judgment or sustains an exception in part, as to one or more but less than all of the claims…the judgment shall not constitute a final judgment by the court absent an express determination that there is no just reason for the delay.

Furthermore, according to LA CCP Article 1911, no appeal can be taken from a partial judgment.  Here, the plaintiffs had a partial summary judgment against them, as it did not cover all claims of the case, only claims for wrongful death and non-intentional torts.  Here, the plaintiffs avoided this issue because they petitioned the trial court to consider the judgment final pursuant to Article 1915(B).  When the court designated it as final, which it did, the plaintiffs were permitted to appeal.

Retroactivity of Rando

            According to the Second Circuit, the prevailing jurisprudence when the judgment in 2007 was rendered by the trial court was Adams v. Asbestos Corp., which held that mesothelioma was a covered occupational disease covered under the pre -1975 vesion of the Louisiana Workers’ Compensation Act.  As an listed disease, tort claims related to the contraction of this disease would be barred.  As stated before, Rando reversed this judgment, holding that mesothelioma was not contemplated as a covered disease in the pre-1975 version of the Act; therefore, tort claims arising from exposures which occurred before the Act was amended in 1975 would not be barred by the Workers’ Compensation Act.  The plaintiffs wanted the court to apply this case retroactively, as it would result in a favorable result with regards to the 2007 judgment. 

            However, the Rando opinion does not state explicitly that this judgment was to apply retroactively.  Therefore, the court had to consider many factors which determine whether a case is to receive retroactive treatment. First, the decision that is being sought to be applied retroactively must establish a new principle of law.  It can do so by dealing with novel issues, or it can overrule existing precedent.  Second, the court must determine whether the retroactive application of the rule serves to expand or contract the operation of that rule in the future.  Lastly, the court must consider any inequities that may result from the retroactive application of this rule. 

            As for the first factor, this issue was not a new one, as there was a split in opinion amongst the Circuit Courts concerning the interpretation of the Workers’ Compensation Act.  As the Bozeman Court points out, “It was just a matter of time before the higher court would step in and decide the issue.”  With regards to the second factor, the courts decided that the retroactive application of this rule would undoubtedly expand it, as it would allow more plaintiffs to assert similar tort claims.  Finally, when considering the third factor, the court argued that not applying the Rando case retroactively would be most inequitable, as the case clarified and corrected an erroneous point of law.