MICHAEL MARTIN MULKEY, SR.
CENTURY INDEMNITY COMPANY, PETROLEUM CASUALTY COMPANY, JAMES RALPH VANNOY, R.H. BRETZ, RALPH F. HOWE, AND JOSEPH D. MIDWIKIS
APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER
628667, SECTION 23, PARISH OF EAST BATON ROUGE STATE OF
LOUISIANA HONORABLE WILLIAM A. MORVANT, JUDGE
O. Unglesby Baton Rouge, Louisiana Wells T. Watson Jake
Buford Lake Charles, Louisiana Counsel for Plaintiffs
-Appellants Susan Mulkey, et al.
Buthod Louis Layrisson, III Benjamin Eric Gonsoulin Houston,
Texas Counsel for Defendant -Appellee Exxon Mobil Corporation
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.
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),  and its liability insurer Century
Indemnity Company (Century). We reverse.
AND PROCEDURAL BACKGROUND
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WL 1378234, at *1 (unpublished opinion), writ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
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.
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.
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.
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.").
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.
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.
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
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 ...