Opinion
NO. 13-CA-9
05-23-2013
JOHN COOK, ET AL v. ASBESTOS CORPORATION LTD, ET AL
DAVID R. CANNELLA MICKEY P. LANDRY FRANK J. SWARR PHILIP C. HOFFMAN ATTORNEYS AT LAW COUNSEL FOR PLAINTIFF/APPELLANT GARY A. LEE RICHARD M. PERLES GORDON P. WILSON JOHN M. FUTRELL ATTORNEYS AT LAW COUNSEL FOR DEFENDANT/APPELLEE SAMUEL M. ROSAMOND, III ADAM D. DEMAHY ATTORNEYS AT LAW COUNSEL FOR DEFENDANT/APPELLEE KRISTOPHER T. WILSON ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLEE
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 708-197, DIVISION "D"
HONORABLE ROBERT M. MURPHY, JUDGE PRESIDING
HANS J. LILJEBERG
JUDGE
Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Hans J. Liljeberg
DAVID R. CANNELLA
MICKEY P. LANDRY
FRANK J. SWARR
PHILIP C. HOFFMAN
ATTORNEYS AT LAW
COUNSEL FOR PLAINTIFF/APPELLANT
GARY A. LEE
RICHARD M. PERLES
GORDON P. WILSON
JOHN M. FUTRELL
ATTORNEYS AT LAW
COUNSEL FOR DEFENDANT/APPELLEE
SAMUEL M. ROSAMOND, III
ADAM D. DEMAHY
ATTORNEYS AT LAW
COUNSEL FOR DEFENDANT/APPELLEE
KRISTOPHER T. WILSON
ATTORNEY AT LAW
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
On November 8, 2011, plaintiffs, surviving spouse and children of Catherine Cook, filed a survival and wrongful death action, seeking damages against multiple defendants, including the insurers of Hunt Tool Company, American Employers Insurance Company, now part of One Beacon America Insurance Company, United States Fidelity and Guaranty Company, The Standard Fire Insurance Company and Travelers Casualty and Surety Company. The plaintiffs alleged that as result of a collective exposure to asbestos, Catherine Cook contracted mesothelioma, which ultimately caused her death. As pertaining to Hunt Tool Company, plaintiffs alleged that Catherine Cook's father, Leonce Waguespack, Sr., while employed by Hunt Tool Company as a welder, regularly brought home asbestos on his clothing, unknowingly exposing his family. Defendants, herein named, subsequently filed a motion for summary judgment, seeking dismissal of plaintiffs' claims against them on the grounds that plaintiffs presented no competent evidence that Hunt Tool Company provided Mr. Waguespack with an asbestos vest and gloves to perform his employment tasks. Therefore, defendants argued that plaintiffs could not prove that Catherine Cook contracted mesothelioma as a result of a contributing exposure to asbestos from Hunt Tool Company. On October 2, 2012, the trial court granted the motion for summary judgment in favor of defendants. From this judgment, plaintiffs appeal.
In addition to exposure from Hunt Tool Company, appellants allege in brief that Catherine Cook contracted mesothelioma from a combination of contributing household and neighborhood exposure to asbestos, including household exposure from Ms. Cook's first husband's work at Celotex and Ms. Cook's residing and growing up on the Westbank of Jefferson Parish related to Johns-Manville operations, emissions and scrap metal.
LA W & DISCUSSION
Jurisprudence is well-settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751; Nuccio v. Robert, 99-1327 (La.App. 5 Cir. 4/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La. 6/30/00), 766 So.2d 544.
Effective August 15, 2012, La. C.C.P. art. 966, as amended by Acts 2012, No. 257, § 1, and Acts 2012, No. 741, § 1, provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966 (B)(2). Further, the amended Article adds a second sub-section to Section E, requiring that "[o]nly evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion." La. C.C.P. art. 966 (E)(2).
Acts 2012, No. 257, § 1 removed the words "on file" from Section B, subsection 2 of Article 966.
--------
Therefore, as amended, La. C.C.P. art. 966 requires only evidence formally introduced and admitted into evidence at the hearing on summary judgment to be considered by the trial court. Evidence, although attached to the motion or filed into the record, shall not be considered by the trial court unless properly admitted at the hearing under the rules of evidence.
At the hearing on summary judgment, defendants/ movants averred that plaintiffs could not carry their burden of proof at trial, namely that Ms. Cook was exposed to asbestos from Hunt Tool Company. Specifically, defendants pointed to an absence of factual support that Hunt Tool Company provided Ms. Cook's father with an asbestos vest and gloves.
Generally, in a motion for summary judgment, the movant retains the burden of proof. La. C.C.P. art. 966 (C)(2). KMJ Services, Inc. v. Hood, 12-757 (La.App. 5 Cir. 4/10/13), --- So.3d ---; Robinson v. Jefferson Parish Sch. Bd., 08-1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043; Champagne v. Ward, 03-3211 p. 5 (La. 1/19/05), 893 So.2d 773, 776-77. However, if the movant sustains this initial burden by showing an absence of factual support for at least one essential element of the adverse party's claim, action, or defense, then the burden shifts to the adverse party to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Id. Thereafter, if the adverse party fails to produce factual support to show that he will be able to meet his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Id.
Here, plaintiffs attached deposition testimony of Ms. Cook and her two brothers, Leonce, Jr. and Patrick Waguespack, as well as expert deposition testimony and photographs in support of their claim that Hunt Tool Company exposed Ms. Cook to asbestos via her father's clothing. Notwithstanding, on appeal, our de novo review of the motion for summary judgment cannot include consideration of the deposition testimony or photographs attached to the motion for summary judgment or its opposition, but not admitted into evidence. Therefore, without any evidence to support the plaintiffs' claim that Hunt Tool Company provided Ms. Cook's father with an asbestos vest and gloves, we cannot find that there is a genuine issue of material fact as to Hunt Tool Company's contribution of asbestos exposure to Catherine Cook. Accordingly, we affirm the summary judgment in favor of defendants.
DECREE
Considering the foregoing, summary judgment granted in favor of defendants, One Beacon America, United States Fidelity and Guaranty Company, The Standard Fire Insurance Company and Travelers Casualty and Surety Company, is affirmed.
AFFIRMED SUSAN M. CHEHARDY
CHIEF JUDGE
FREDERICKA H. WICKER
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON
ROBERT M. MURPHY
STEPHEN J. WINDHORST
HANS J. LILJEBERG
JUDGES
FIFTH CIRCUIT
101 DERBIGNY STREET (70053)
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054
CHERYL Q. LANDRIEU
CLERK OF COURT
MARY E. LEGNON
CHIEF DEPUTY CLERK
SUSAN BUCHHOLZ
FIRST DEPUTY CLERK
TROY A. BROUSSARD
DIRECTOR OF CENTRAL STAFF
NOTICE OF JUDGMENT AND
CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH Uniform Rules - Court of Appeal, Rule 2-20 THIS DAY MAY 23, 2013 TO THE TRIAL JUDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
______________________
CHERYL Q. LANDRIEU
CLERK OF COURT
13-CA-9
E-NOTIFIED
NO ATTORNEYS WERE ENOTIFIED
MAILED
DAVID R. CANNELLA
FRANK J. SWARR
MICKEY P. LANDRY
PHILIP C. HOFFMAN
ATTORNEYS AT LAW
1010 COMMON STREET
SUITE 2050
NEW ORLEANS, LA 70112
EDWARD A. RODRIGUE, JR.
ATTORNEY AT LAW
2324 SEVERN AVENUE
SUITE 100
METAIRIE, LA 70001
RYAN M. MALONE
ATTORNEY AT LAW
3838 NORTH CAUSEWAY BOULEVARD
SUITE 2900, LAKEWAY THREE
METAIRIE, LA 70002
AUSTIN STEPHEN J.
ATTORNEY AT LAW
SUITE 3000
1100 POYDRAS STREET
NEW ORLEANS, LA 70163
SUSAN B. KOHN
DOUGLAS R. KINLER
MICHAEL D. HAROLD
ATTORNEYS AT LAW
1100 POYDRAS STREET
SUITE 3000
NEW ORLEANS, LA 70163
GARY A. LEE
RICHARD M. PERLES
ANITA A. CATES
GORDON P. WILSON
JOHN M. FUTRELL
ATTORNEYS AT LAW
201 ST. CHARLES AVENUE
SUITE 4120
NEW ORLEANS, LA 70170
ANDREW D. WEINSTOCK
ATTORNEY AT LAW
3838 NORTH CAUSEWAY BOULEVARD
SUITE 2900
METAIRIE, LA 70002
JOHN F. DILLON
ATTORNEY AT LAW
81174 JIM LOYD ROAD
FOLSOM, LA 70437-7008
SAMUEL M. ROSAMOND, III
ADAM D. DEMAHY
ATTORNEYS AT LAW
1515 POYDRAS STREET
SUITE 1900
NEW ORLEANS, LA 70112
JEFFERY F. FARSHAD
DAVID P. SALLEY
ATTORNEYS AT LAW
365 CANAL STREET
SUITE 1710
NEW ORLEANS, LA 70130