Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mulkey v. Century Indemnity Co.

Court of Appeals of Louisiana, First Circuit

August 7, 2019

MICHAEL MARTIN MULKEY, SR.
v.
CENTURY INDEMNITY COMPANY, PETROLEUM CASUALTY COMPANY, JAMES RALPH VANNOY, R.H. BRETZ, RALPH F. HOWE, AND JOSEPH D. MIDWIKIS

          ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 628667, SECTION 23, PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE WILLIAM A. MORVANT, JUDGE

          Lewis O. Unglesby Baton Rouge, Louisiana Wells T. Watson Jake Buford Lake Charles, Louisiana Counsel for Plaintiffs -Appellants Susan Mulkey, et al.

          Tynan Buthod Louis Layrisson, III Benjamin Eric Gonsoulin Houston, Texas Counsel for Defendant -Appellee Exxon Mobil Corporation

          James M. Garner Martha Y. Curtis Amanda Russo Schenck New Orleans, Louisiana Counsel for Defendant -Appellee Century Indemnity Company, as successor to CCI Insurance Company, as successor to Insurance Company of North America

          BEFORE: WELCH, CHUTZ, AND LANIER, JJ.

          CHUTZ, J.

         Plaintiffs-appellants, Susan L. Mulkey, wife of decedent, Michael Martin Mulkey, Sr. (Mulkey), and their major children, Michael Mulkey, Jr., Michelle McCloud, and Mathew Mulkey (collectively appellants), appeal the trial court's judgment sustaining exceptions raising the objection of prescription and dismissing all their claims against Mulkey's former employer, defendants-appellees, Exxon Mobil Corporation (Exxon), [1] and its liability insurer Century Indemnity Company (Century).[2] We reverse.

         FACTUAL AND PROCEDURAL BACKGROUND

         As noted in our earlier opinion, see Mulkey v. Century Indent. Co., 2016-1119 (La.App. 1st Cir. 4/12/17), 2017 WL 1378234, at *1 (unpublished opinion), writ denied, 2017-1059 (La. 10/9/17), 228 So.3d 746, Mulkey filed this lawsuit on March 3, 2014, alleging that he had worked at Exxon's Scenic Highway facility "on the chemical side" between 1967 and 2002. As a result of his exposure to benzene and benzene-containing products and chemicals, Mulkey averred that he had been diagnosed with acute myelogenous leukemia on March 26, 2013. Mulkey named employees and former employees of Exxon as defendants, contending that "the law [of] executive office liability applies."

         After Mulkey died on March 2, 2015 from acute myelogenous leukemia, appellants filed the second amending and supplemental petition, alleging that as his surviving beneficiaries they were entitled to damages for Mulkey's survival action and wrongful death. Plaintiffs named Exxon as a defendant claiming that, as his employer, Exxon was liable for damages that resulted from its intentional exposure of benzene without Mulkey's informed consent while he worked at the Baton Rouge facility.

         After the trial court sustained Exxon's peremptory exception raising the objection of no cause of action as to the claims of an intentional tort of battery, this court reversed. See Mulkey, 2017 WL 1378234, at *2.[3]

         Thereafter, Exxon urged a peremptory exception raising the objection of prescription as to the claim of an alleged intentional battery insofar as appellants' assertion to entitlement of survival action and wrongful death damages. Century also filed an exception of prescription. After a hearing, the trial court sustained the objection and dismissed appellants' claims. This appeal followed.[4]

         DISCUSSION

         As noted by this court in our earlier opinion, a battery is harmful or offensive contact to another done with the intent to cause the person to suffer such a contact. The intention need not be malicious nor need it be an intention to inflict actual damage. Mulkey, 2017 WL 1378234, at *2 (citing Caudle v. Beits, 512 So.2d 389, 391 (La. 1987)). See also La. C.C. art. 2315A ("Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.").

         Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. La. C.C. art. 3492. The purpose of a prescription statute is to afford a defendant economic and psychological security if a cause of action is not pleaded timely and to protect the defendant from stale claims and the loss of relevant proof. Borja v. FARA, 2016-0055 (La. 10/19/16), 218 So.3d 1, 6. Prescription statutes are, however, strictly construed against prescription and in favor of the obligation sought to be extinguished. Taranto v. Louisiana Citizens Property Ins. Corp., 2010-0105 (La. 3/15/11), 62 So.3d 721, 726.

         Ordinarily, the party pleading prescription bears the burden of proving the right to bring the claim has prescribed. But when the face of the petition reveals that the plaintiffs right has prescribed, the burden shifts to the plaintiff to demonstrate prescription was interrupted or suspended. London Towne Condo. Homeowner's Ass'n v. London Towne Co., 2006-401 (La. 10/17/06), 939 So.2d 1227, 1234. Additionally, a petition should not be found prescribed on its face and, hence, plaintiff should not bear the burden of proving an interruption or suspension of prescription, if it is brought within one year of the date of discovery of the cause of action, the facts alleged with particularity in the petition show that the victim was unaware of the cause of action prior to the alleged date of discovery, and the delay in filing suit was not due to willful, negligent, or unreasonable action of the victim. See Campo v. Correa, 2001-2707 (La. 6/21/02), 828 So.2d 502, 509.

         At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded when the grounds thereof do not appear from the petition. La. C.C.P. art. 931; Bracken v. Payne and Keller Co., Inc., 2006-0865 (La.App. 1st Cir. 9/5/07), 970 So.2d 582, 587. If evidence is introduced, the trial court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rando v. Anco Insulations Inc., 2008-1163 (La. 5/22/09), 16 So.3d 1065, 1082.

         To soften the occasional harshness of prescription statutes, Louisiana courts have recognized a jurisprudential exception to prescription with contra non valentem non currit praescriptio, which means that prescription does not run against a person who could ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.