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.                 


1 comment:

  1. Jambore Casino & Resort Hotel - Timewin, NY - Tomsguide
    Find Jambore Casino 울산광역 출장안마 & Resort Hotel 세종특별자치 출장안마 timewin, NY locations, rates, amenities: 고양 출장샵 expert Timewin research, 창원 출장마사지 only at Hotel 시흥 출장마사지 and Travel Index.