Opinion
No. 91-CA-418.
December 11, 1991.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, NO. 356-047, DIVISION "E", STATE OF LOUISIANA, HONORABLE CLARENCE E. McMANUS, JUDGE.
S. Michael Cashio, Samuel M. Yonter, Kenner, for plaintiff-appellant Mitchell Beard.
Michael A. Britt, New Orleans, for defendant-appellee Federal Ins. Co.
Samuel M. Rosamond, III, Boggs, Loehn Rodrigue, New Orleans, for defendant-appellee Commercial Union Ins. Co.
John E. Galloway, Galloway, Johnson, Tompkins Burr, New Orleans, for defendant-appellee Miss. Valley Silica Co., Inc.
Leonard A. Young, Bienvenu, Foster, Ryan O'Bannon, New Orleans, for defendant-appellee Gulf Ins. Co.
Before KLIEBERT, C.J., and GAUDIN and GOTHARD, JJ.
The plaintiff, Mitchell Beard, instituted this action for damages or, alternatively, worker's compensation benefits, on December 29, 1987 alleging that over the course of his employment from 1965 to 1979 he was exposed to various offensive fumes and noxious and dangerous dusts, sands, and chemicals which caused him to contract a chronic lung injury which had disabled him.
The original defendants included Avondale Shipyards, Inc. and two other employers; Pulmosan Equipment Corporation and Black Equipment Company, manufacturers and distributors of hoods used by plaintiff during the course of his various employments; and Mississippi Valley Silica, the manufacturer and provider of silica sand which caused the alleged lung damage. All defendants filed responsive pleadings, including Mississippi Valley who filed an answer in the form of a general denial and named Federal Insurance Company and other insurance companies in a third-party demand as their insurers.
On November 30, 1990 Federal Insurance Company, as insurer of Mississippi Valley, filed a motion for summary judgment as did subsequently other alleged insurers. Mississippi Valley itself, on January 15, 1991, filed a motion for summary judgment, the basis of which, like the others which preceded it, was that the plaintiff did not have any disease related to sand dust exposure.
The various motions were set for hearing on February 7, 1991 and, after oral argument and submission, were taken under advisement by the trial judge. Thereafter, on March 11, 1991, judgment was signed granting the motions for summary judgment and dismissing the demands of plaintiff, with prejudice, as to Mississippi Valley Silica Company, Federal Insurance Company, Gulf Insurance Company, and Commercial Union Insurance Company. The plaintiff has appealed.
On the morning the case was set for hearing, the plaintiff filed a motion and order to dismiss his appeal. The defendants stated in open court that they had no objection to dismissing the appeal. Accordingly, we dismiss the appeal filed by plaintiff-appellant with prejudice. All costs are to be borne by plaintiff-appellant.
DISMISSED.