[B]Case Name: [/B][I]Blaise Dibenedetto v. Noble Drilling Company, et al.
[/I][B]Date Decided: [/B]October 21, 2009
[B]Court: [/B]Court of Appeal of Louisiana, Fourth Circuit
[B]Judge:[/B] Judge Ramsey
[B]Citation: [/B]2009 WL 3387042[B]Background:
[/B]This is the second of three appeals decided by this Court involving plaintiff* Blaise DiBenedetto, (“Blaise”) claim against Noble Drilling and other defendants under the Longshore Harbor Workers’ Compensation Act (“LHWCA”).
On Blaise’s LHWCA appeal, this Court decided whether Blaise’s claims against three of his former employers are barred by the LHWCA.
Blaise did not seek benefits under the LHWCA but rather chose to file a tort claim in state court. Defendants, CTS, Ports America Gulfport, Inc. and SSA Gulf each filed motions for summary judgment arguing that the LHWCA is Blaise’s exclusive remedy thus barring Blaise from pursuing his tort claims against them.
The trial court granted summary judgment in favor of the defendants and dismissed Blaise’s claims against them with prejudice.
[/B]Is Blaise’s state tort claim barred by the LHWCA?
[/B]This Court held that the trial court erred in holding that Blaise’s claims were barred under the LHWCA.
Blaise’s claim is a long-latency occupational disease case and as such, Blaise’s claim accrued when exposures are significant and that such exposure resulted in the manifestation of damages.
Moreover, the tortious exposures are significant when asbestos dust has so damaged the body that the effects of its inhalation progresses independently of further exposure.
Blaise contended that the substantial contribution to his occupational exposure to asbestos occurred while he worked on the New Orleans riverfront beginning in 1974. Blaise’s exposure occurred before the Louisiana Workers’ Compensation Act was in effect. Therefore, Blaise’s pre-1975 exposure is not subject to the exclusive remedy provision of this Act.
Furthermore, this Court found that the absence of coverage of diseases such as mesothelioma in the pre-1975 version of the LWCA means that the pre-1975 exposure is not subject to the exclusivity provision of that Act.
Accordingly this Court held that the trial court erred in granting defendant’s motion for summary judgment.
The Court refused to extend the LHWCA exclusivity provision to the plaintiff’s claim because his exposure occurred before the Louisiana Worker’s Compensation Act covered such claims. [/B]
[B]The fact that the Louisiana Compensation Act, which is supplanted by the LHWCA, did not provide the remedy the plaintiff sought did not mandate the result that he can [I]only [/I]seek recovery under the federal compensation scheme. [/B]
[B]The plaintiff was entitled to pursue other remedies available to him under Louisiana law as it existed [I]at the time [/I]of his first alleged significant tortious exposure to asbestos. [/B]
[B]Steve Gordon [/B]