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Estave v. McCarty Corp.
Citations: 464 So. 2d 873; 1985 La. App. LEXIS 8220Docket: No. CA-3038
Court: Louisiana Court of Appeal; February 11, 1985; Louisiana; State Appellate Court
In a worker's compensation claim for asbestosis, the plaintiff appeals a summary judgment that dismissed claims against four former employers. The court affirms the dismissal of two defendants but reverses the judgment for the other two. Fred M. Estave, Sr. worked as an asbestos insulator from 1962 to 1978, later switching to commercial fishing. X-rays in 1983 revealed lung conditions consistent with asbestosis, prompting the lawsuit against nine former employers. Four employers, invoking the precedent in Carter v. Avondale Shipyards, Inc., sought summary judgment, arguing they were not the plaintiff's "last causative" employer responsible for his disability. They contended that Estave had worked with asbestos for other employers after their employment and before the onset of symptoms. In response, the plaintiff presented a physician's affidavit stating it was impossible to determine the exact period of exposure, arguing that the last causative employer rule should not apply and that liability should be shared among the defendants. He also claimed there were genuine material facts regarding asbestos dust concentration at the job sites, necessitating a trial. The plaintiff’s employment history shows extensive work with asbestos, primarily from 1962 to 1974, with sporadic work until 1978, highlighting uncertainty about the presence of asbestos in his last job. He recalls definite exposure to asbestos with McCarty Corporation in 1972 but suggests potential later exposure while removing old insulation. The physician's insights emphasize that the severity of asbestosis development correlates with the quantity of inhaled asbestos particles at various jobs. A physician indicated that while it is impossible to determine the exact period of asbestos exposure that caused the plaintiff's pulmonary issues, it is likely that symptoms from 1982 or 1983 were due to exposures from 1962 to 1972. However, he acknowledged that exposure in 1977 might also have contributed to the plaintiff's disease. The trial court dismissed the plaintiff's claims against AC S, Inc. and Reilly-Benton Co. Inc. based on evidence showing significant asbestos exposure occurred after employment with these defendants. Conversely, for McCarty Corp. and Mechanical Insulations, Inc., the court found unresolved factual questions regarding the extent of the plaintiff's exposure between 1974 and 1978, raising the possibility that these companies could be considered the "last causative" employers. The court rejected the notion that only the last chronological employer is liable, emphasizing that causation must be established based on exposure levels, similar to precedents set in previous cases. The trial court's summary judgment in favor of Reilly-Benton Co. Inc. and AC S, Inc. was affirmed, while the judgments for McCarty Corp. and Mechanical Insulations, Inc. were reversed, and the case was remanded for further proceedings.