Opinion
2016 CA 1119
04-12-2017
MICHAEL MARTIN MULKEY, SR. v. CENTURY INDEMNITY COMPANY, PETROLEUM CASUALTY COMPANY, JAMES RALPH VANNOY, R.H. BRETZ, RALPH F. HOWE AND JOSEPH D. MIDWIKIS
Wells T. Watson Jake Buford Lake Charles, Louisiana Lewis O. Unglesby Baton Rouge, Louisiana Counsel for Plaintiffs-Appellants Susan L. Mulkey, Michael M. Mulkey, Jr., Michelle McCloud, and Mathew Mulkey Barrye Panepinto Miyagi Sarah W. Anderson Baton Rouge, Louisiana Tynan Buthod Houston, Texas Counsel for Defendant-Appellee Exxon Mobil Corporation
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER C628667, SECTION 23, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA HONORABLE WILLIAM A. MORVANT, JUDGE Wells T. Watson
Jake Buford
Lake Charles, Louisiana Lewis O. Unglesby
Baton Rouge, Louisiana Counsel for Plaintiffs-Appellants
Susan L. Mulkey, Michael M. Mulkey,
Jr., Michelle McCloud, and Mathew
Mulkey Barrye Panepinto Miyagi
Sarah W. Anderson
Baton Rouge, Louisiana Tynan Buthod
Houston, Texas Counsel for Defendant-Appellee
Exxon Mobil Corporation BEFORE: HIGGINBOTHAM, THERIOT AND CHUTZ, JJ.
Disposition: REVERSED AND REMANDED.
CHUTZ, J.
Plaintiffs-appellants, Susan Mulkey, Michael Mulkey, Jr., Michelle McCloud, and Mathew Mulkey (plaintiffs), appeal the trial court's judgment sustaining a peremptory exception raising the objection of no cause of action and dismissing their claims against defendant-appellee, Exxon Mobil Corporation (Exxon), for damages arising from the death of Michael Mulkey, Sr. due to occupational exposure to toxic and carcinogenic chemicals. We reverse and remand.
According to the third amended and supplemental petition, when Mulkey applied for work it was through Esso, an Exxon predecessor, for Enjay Chemical, an entity under "the Exxon (Standard Oil) umbrella." The second amended and supplemental petition states that all references to "Exxon" should be deemed to include Mulkey's predecessor employers in addition to Exxon.
FACTUAL AND PROCEDURAL BACKGROUND
Mulkey filed this lawsuit 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 he had been diagnosed with acute myelogenous leukemia on March 26, 2013. Suggesting that "the law [of] executive office liability applies," Mulkey identified forty-one employees and former employees of Exxon, contending that they negligently failed to carry out specified duties and responsibilities relative to the dangers to his health caused by working in an atmosphere polluted with benzene without proper safeguards and, therefore, were liable for his damages.
Mulkey died on March 2, 2015 from acute myelogenous leukemia. His wife and major children subsequently filed the second amending and supplemental petition, alleging that as his surviving beneficiaries they were entitled to damages for Mulkey's survival action, wrongful death, and funeral expenses. 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.
Exxon filed, among other things, a dilatory exception objecting on the basis of nonconformity of the petition and a peremptory exception raising the objection of no cause of action. After a hearing, the trial court sustained the objections and granted plaintiffs 30 days to amend their petition. Plaintiffs timely filed a third amended petition which further articulated the details of their claims. Exxon again filed a peremptory exception raising the objection of no cause of action. After a hearing, the trial court sustained the objection and dismissed Exxon from the lawsuit. Plaintiffs devolutively appeal.
DISCUSSION
The objection that a petition fails to state a cause of action is properly raised by the peremptory exception. La. C.C.P. art. 927A(5). A trial court's judgment sustaining the peremptory exception raising the objection of no cause of action is subject to de novo review by an appellate court, employing the same principles applicable to the trial court's determination of the exception. The purpose of the exception of no cause of action is to determine the sufficiency in law of the petition in terms of whether the law extends a remedy to anyone under the petition's factual allegations. Generally, the exception is triable on the face of the pleadings, and for purposes of resolving the issues raised by the exception, the well-pleaded facts in the petition are accepted as true in order to determine whether the law affords a remedy to anyone under the facts alleged in the petition. Cador v. Deep South Equipment Co., 2014-1371 (La. App. 1st Cir. 3/6/15), 166 So.3d 344, 347.
Exxon contended, and the trial court concluded, that because Mulkey was working at the time of his exposure to benzene, plaintiffs' claims were barred by the Louisiana Workers' Compensation Act (LWCA). See generally La. R.S. 23:1020.1 et seq. Although they pointed to La. R.S. 23:1032B and urged that their petition stated a cause of action for the intentional tort of battery, the trial court found that their allegations were conclusory and, therefore, insufficient. On appeal, plaintiffs maintain that they have alleged a cause of action in battery, an intentional tort outside the ambit of the LWCA.
La. R.S. 23:1032B provides, "Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act." --------
A battery is harmful or offensive contact to another done with the intent to cause the person to suffer such a contact. Caudle v. Betts , 512 So.2d 389, 391 (La. 1987). The intention need not be malicious nor need it be an intention to inflict actual damage. Id.
The Louisiana Supreme Court has held that in order to meet the intentional act exception of the LWCA, an employee must establish that the employer either: (1) consciously desired the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Cador , 166 So.3d at 347 (citing Bazley v. Tortorich , 397 So.2d 475, 481 (La. 1981)).
Malice, intent, knowledge, and other condition of mind of a person may be alleged generally, since they cannot be particularized. See La. C.C.P. art. 856 and its official revision comment. The general allegation thereof has been held sufficient to state a cause of action under the jurisprudence. Mayer v. Valentine Sugars , Inc., 444 So.2d 618, 620 (La. 1984) (relying on). Consequently, it is permissible for the employee to plead the intent element of his intentional tort cause of action generally and without particularity. Mayer , 444 So.2d at 620.
Review of the allegations in the second and third amended and supplemental petition shows plaintiffs have averred that Exxon knew that benzene exposure caused cancer. They elaborate in articulated detail individuals at Exxon who were aware of problems with benzene exposure and the dates of their knowledge. Indeed, plaintiffs aver that as early as 1958 "Exxon wrote that the greatest hazard associated with benzene exposure is an insidious destructive effect on blood and blood forming organs, most often the result of repeated inhalation of low concentrations; the only level that can be considered absolutely safe for prolonged exposure is zero." Plaintiffs also clearly alleged that despite actual knowledge of the harm benzene exposure caused, Exxon intentionally exposed Mulkey to benzene without advising him that being exposed would give him cancer. Therefore, they have averred offensive or harmful contact due to benzene exposure without Mulkey's consent done with an intent to cause Mulkey to suffer such exposure.
Plaintiffs' petition is sufficient to satisfy their burden of pleading the intent element of the tort of battery generally and without particularity so as to state a cause of action. See Mayer , 444 So.2d at 620. Although plaintiffs did not expressly use the phrase that Exxon "knew that that result [leukemia was] substantially certain to follow from [its] conduct [unprotected benzene exposure]," see Cador , 166 So.3d at 347, they have set forth sufficient facts to support such a finding if they are able to produce the requisite evidentiary support. Thus, plaintiffs have stated a cause of action for an intentional tort so as to exclude any immunity Exxon may have under the LWCA. See and compare Carey v. UMC (United Mechanical Contractors) , 553 So.2d 472 (La. 1989) (reversing the trial court's dismissal of a petition for failure to state a cause of action, the court held that summary judgment is the more appropriate procedural vehicle to dismiss an intentional tort claim against a plaintiff's employer prior to the trial on the merits). Accordingly, the trial court erred in sustaining the exception of no cause of action and dismissing plaintiffs' claims against Exxon.
DECREE
For these reasons, the trial court's judgment is reversed and the matter is remanded for further proceedings. Appeal costs are assessed against Exxon Mobil Corporation.
REVERSED AND REMANDED.