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Michel v. Ford Motor Co.

United States District Court, E.D. Louisiana

May 23, 2019

VICTOR MICHEL
v.
FORD MOTOR CO., ET AL.

         SECTION “R” (4)

          ORDER AND REASONS

          SARAH S. VANCE UNITED STATES DISTRICT JUDGE

         Before the Court is defendant Ford Motor Company's motion to dismiss plaintiffs' wrongful death claims.[1] Because plaintiffs may plead alternative claims, the Court denies the motion except to the extent that plaintiffs have alleged a wrongful death employer liability claim, which is barred.

         I. BACKGROUND

         This case arises out of Victor Michel's asbestos exposure during his work as a mechanic and generator service technician.[2] Michel contracted peritoneal mesothelioma after a career that included performing work as a mechanic on engines and brakes.[3] He filed this action in state court on July 28, 2017 against Ford Motor Company and many other asbestos suppliers, claiming negligence and that defendants' products were unreasonably dangerous.[4] Defendants removed the case to federal court on May 8, 2018.[5]On June 12, 2018, Michel died.[6] The Court substituted his survivors as plaintiffs on July 10, 2018.[7] As of January 25, 2019, the only defendant remaining in the case was Ford. On February 20, 2019, the Court granted plaintiffs leave to amend their complaint.[8] Plaintiffs filed an amended complaint on the same day.[9]

         Ford has now filed a motion to dismiss plaintiffs' wrongful death claims as alleged in the amended complaint.[10] Plaintiffs oppose the motion.[11]

         II. LEGAL STANDARD

         To survive a Rule 12(b)(6) motion, a party must plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the party pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the nonmoving party. See Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

         A legally sufficient complaint must establish more than a “sheer possibility” that the party's claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal relevant evidence of each element of the party's claim. Lormand, 565 F.3d at 257. The claim must be dismissed if there are insufficient factual allegations to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (2007).

         III. DISCUSSION

         In their amended complaint, plaintiffs have alleged claims against Ford for: (1) general negligence under Louisiana Civil Code article 2315; (2) employer liability in Ford's capacity as Victor Michel's employer under Louisiana Revised Statute 23:13; (3) garde or premises liability in Ford's capacity as the owner of the premises on which Michel worked while employed at Crescent Ford under Louisiana Civil Code article 2317; and (4) product liability claims sounding in negligence and strict liability in Ford's capacity as the manufacturer of asbestos containing products.[12] For each of these claims, plaintiffs seek to recover under a survival cause of action as codified in Louisiana Civil Code, Article 2315.1, and under a wrongful death cause of action as codified in Louisiana Civil Code, Article 1215.2.[13]

         In a survival action, plaintiffs can recover as surviving beneficiaries for losses suffered by Michel before his death, such as medical expenses and his pain and suffering. La. Civ. Code, art 2315.1; 18 La. Civ. L. Treatise, Civ. Jury Instr. § 18:13 (3d ed. 2018). In a wrongful death action, plaintiffs can recover for their own losses suffered as a result of Michel's death, such as damages for loss of love, affection, and companionship, and damages for grief and anguish. La. Civ. Code, art. 2315.2; 18 La. Civ. L. Treatise, Civ. Jury Instr. § 18:14 (3d ed. 2018). To recover damages under either theory-survival or wrongful death-plaintiffs first must prove Ford's liability on one of the underlying claims. The types of actions that plaintiffs have chosen to bring dictate the types of damages that they can receive if liability is shown.

         Relying on plaintiffs' allegations in the amended complaint that Ford was Michel's employer, Ford argues that all of plaintiffs' wrongful death claims-for negligence, employer liability, premises liability, and products liability-are barred by the Louisiana Worker's Compensation Act (LWCA), La. R.S. § 23:1031, et seq.[14] Ford's argument is valid only to the extent that Michel was Ford's employee. This follows because if Michel were not Ford's employee, the LWCA would not apply to his or plaintiffs' claims. In that case, plaintiffs could assert viable wrongful death claims against Ford as the manufacturer of asbestos-containing products, or as the owner of the premises in which Michel worked. And the LWCA would never bar plaintiffs' employer liability claim based on a survival cause of action, because this claim arose before the LWCA covered Mesothelioma.

         The LWCA provides the exclusive remedy for an employee injured by the negligent acts of his employer when those injuries arise out of and in the course of employment. See La. R.S. 23:1031 and 23:1032 (“[T]he rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages . . . .”); Vallery v. S. Baptist Hosp., 630 So.2d 861, 863 (La.App. 4 Cir. 1995); Duncan v. Wal-Mart La., L.L.C., 863 F.3d 406, 408 n.1 (5th Cir. 2017). Therefore, the LWCA provides a statutory defense to tort claims from employees injured on the job. But, in Louisiana asbestos cases, the Court must apply the law in effect at the time that plaintiffs' tort claims arose. Cole v. Celotex Corp., 599 So.2d 1058, 1066-68 (La. 1992). Plaintiffs' claims under a survival cause of action arose when Michel was allegedly exposed to asbestos, which plaintiffs assert was in the late 1960s. Taylor v. Giddens, 618 So.2d 834, 840 (La. 1993) (“The survival action comes into existence simultaneously with the existence of the tort . . . ...


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