Opinion
CIVIL ACTION NO: 14-2022 SECTION: "J"(5)
05-26-2015
LAURENT v. NEW ORLEANS CITY ET AL.
ORDER
Before the Court is Defendant City of New Orleans (the City)'s Rule 12(b)(6) Motion to Dismiss Wrongful Death Claim. (Rec. Doc. 73) The City argues that the Court should dismiss Plaintiff's wrongful death claim because the Louisiana Workers' Compensation Act (LWCA) is the exclusive remedy for decedent's alleged work-related injury. In response, Plaintiff admits that "the [LWCA] bars his claim for the wrongful death of his father." (Rec. Doc. 75) The Court agrees.
The law in effect at the time of death controls a wrongful death claim. See, e.g., Meredith v. Asbestos Corp., Ltd., 97-2593 (La. App. 4 Cir. 2/18/98), 707 So. 2d 1334, 1336-37. It is alleged that decedent died of mesothelioma in 2013. (Rec. Doc. 73-1) At that time, the LWCA immunized employers against tort actions, including wrongful death actions. Meredith, 707 So. 2d at 1336. Plaintiff consequently fails to state a claim for wrongful death in this case. See Frank v. Shell Oil Co., 828 F. Supp. 2d 835, 847, 851 (E.D. La. 2011)(Fallon, J.). Therefore, for the reasons stated in the City's motion and memorandum and summarized above,
Unless the plaintiff alleges the occurrence of an intentional tort, Meredith, 707 So. 2d at 1335, which Plaintiff has not done here.
IT IS HEREBY ORDERED that the motion (Rec. Doc. 73) is GRANTED.
New Orleans, Louisiana this 26th day of May, 2015.
/s/_________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE