Document 8VVG6ZdpJdy3QxXrBGMoJ6d5e

Asbestos State's Workers' Comp Law Precludes Punitive Damages for Toxic Exposures he exclusivity provision of Louisiana's Workers' TCompensation Act, as it existed when a putative class action was filed in 1994; precludes an em ployee from recovering punitive damages from his em ployer under a different statute that governs exposure to toxic substances, the Louisiana Supreme Court ruled May 19 (Adams v. J.E. Merit Construction Inc., La. Sup. Ct., No. 97-CC-2005, 5/19/98). The court overruled its decision in Billiot v. B.P. Oil Co., 645 So.2d 604 (La. 1994), which allowed punitive claims despite the workers' compensation exclusivity provision, finding the earlier decision premised on faulty legal analysis and logic. j The May 19 decision could affect thousands, and po tentially hundreds of thousands, of workers exposed to asbestos and other toxic substances that can cause dis eases with long latency periods, according to defense attorney James M. Garner. Workers exposed between 1984, when the toxic exposure statute was enacted, and its repeal in 1995, were able-to sue for punitive damages after Billiot--an aberration ended by the court's deci sion in this case, Garner said. Billiot was "an anomaly" in Louisiana law, Garner said. Before Billiot, Louisiana law was in line with the majority of jurisdictions that have restricted employees to state workers' compensation remedies. Adams re- ' aligns Louisiana after Billiot's substantive diversion, Garner said. Refinery Workers. The plaintiffs, employees of J.E. Merit Construction Inc., claimed they were injured from exposure to asbestos while working at the BP Oil Refin ery in Alliance, La., from September 1993 through April 1994. They filed a petition in 1994 seeking punitive damages under the Louisiana Civil Code against Merit, BP Exploration and Oil, and Basic Industries Inc. Interrogatories to the defendants requested financial information. The defendants argued the information was not discoverable because it was relevant only to the punitive damages claims, which were precluded by the Louisiana Workers' Compensation Act. The plaintiffs' suit was filed under La. Civil Code art. 2315.3, which, before its repeal in 1995, allowed a per son exposed to toxic substances to recover punitive damages if "it is proved that the plaintiffs injuries were caused by the defendant's wanton or reckless disregard for public safety in the storage, handling, or transporta tion of hazardous or toxic substance." The exclusivity provision of the state workers' com pensation act was amended in 1995. Before its amend ment, the act provided that its remedies were "exclu sive of all other rights and remedies" for an employee seeking compensation from his employer for workrelated injuries. Relying on Billiot, the trial court denied the defense motion for a protective order and for partial summary judgment. The appeals court denied Merit's appeal, but the state Supreme Court granted review in order to re consider Biliiot. Flawed Premise. The Billiot court's underlying premise--that punitive damages did not exist under Louisiana law in 1914, when the workers' compensa tion statute was enacted, and therefore the Legislature did not intend to limit the right to recover punitive dam ages under the workers' compensation statute--was fa tally flawed, the supreme court found: Louisiana courts "often awarded punitive damages prior to 1914." Con sequently, the court ruled, because of the broad and clear wording of the exclusivity provision, there was no reason to believe the Legislature intended to exclude punitive damages from the provision in 1914. Even if punitive damages had not been recognized in 1914, the exclusivity language of the workers' compen sation statute "means what it says--all other rights and remedies, whether existing at the time of adoption of j the Workers' Compensation law or enacted thereafter, are excluded from the array of recoverable items against the employer," the court1 determined. The terms of the statute were not "frozen for all time" when it was : promulgated in 1914, the court said. j By the time the asbestos exposure in this case alleg edly occurred, the court said, the Legislature had amended the workers' compensation act three times. Certainly by 1989, the latest amendment, the Legisla ture knew punitive damages were awarded to some in jured tort victims, "yet they made no change to the phrase `the rights and remedies granted to an employee ... on account of personal injury. . . shall be exclusive of all other rights and remedies,' " the court noted. If the Legislature had wanted to except punitive damages from the exclusivity provision, it would have done so specifically, the court said. Similarly, the Legislature would have clarified the toxic tort statute to make clear that punitive damages were available even in workers' i compensation cases, the court said. j The state high court entered an order of partial sum- j mary judgment and remanded the case to the trial court j to reconsider Merit's protective order motion in light of j this opinion. Justice Jeffrey P. Victory wrote the majority opinion. Concurrences, Dissent. Although joining in that part of the court's decision that the Billiot court erred in find ing punitive damages were barred by the workers' com pensation statute, Chief Justice Pascal F. Calogero Jr. parted from the majority in dismissal of the punitive damages claim. Employees may not recover punitive damages against the employer based on negligence, Calogero ac knowledged. But at the time the plaintiffs' claims arose, Louisiana law provided that punitive damages could be recovered for an employer's intentional torts, and the plaintiffs' claim should survive under that theory, he wrote. Justice Jeannette Knoll concurred to underscore the exclusive nature of the remedies available to workers and the "derivative nature" of the workers' compensa tion statute. The statute was clear as written, and the Billiot court unnecessarily "ventured into the question of interpretation, .. . improvidently undermining] an integral part of the workers' compensation compro mise." Reprinted with permission from Occupational safety & Health Reporter, Vol. 28, No. 2, pp. 47-48 (June 10, 1998). Copyright 1998 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com> HWBUI0003635