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In re Frank - 828 F. Supp. 2d 835 (E.D. La. 2011)

Rule:

Under the substantially certain exception to the Louisiana Workers' Compensation Act, the jurisprudence requires more than a reasonable probability that an injury will occur and defines certain to mean inevitable or incapable of failing. Mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing. Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, or willfully failing to furnish a safe place to work, this still falls short of the kind of actual intention to injure that robs the injury of accidental character. Almost universally, Louisiana courts hold that employers are not liable under the intentional act exception for violations of safety standards or for failing to provide safety equipment. 

Facts:

This case arises from the illness and death of a spouse allegedly resulting from exposure to benzene in his workplace. The decedent spouse, Welman Frank, worked at the Shell Norco refinery from 1972 to 1973 as a contract worker and from 1973 to 2002 in the "Coke Unit" as a unit operator and later as a shift foreman. Defendant Shell Oil Company was the alleged owner and operator of the Norco refinery. Defendant Travelers was the alleged insurer of Shell and Shell's executive officers from 1972 to 1978.

During his employment at the Norco refinery, it is alleged that Mr. Frank was exposed to unsafe levels of benzene on a daily basis related to Shell's role as a manufacturer and seller of benzene or benzene-containing products. It is further alleged that this exposure to benzene resulted in Mr. Frank's development of Acute Lymphoblastic Leukemia ("ALL Leukemia"). Mr. Frank was diagnosed with ALL Leukemia in 2002 and died that same year.

On April 15, 2011, the surviving spouse of Mr. Frank, Plaintiff Lois Frank, filed suit, individually and on behalf of her husband against defendants Shell and Traveler. Lois alleged her husband's significant exposure to benzene and/or benzene-containing products was the result of the acts or omissions of Shell and Shell's deceased executive officers, and such acts or omissions were a substantial, contributing cause in the development of Mr. Frank's ALL Leukemia. Lois further alleged Shell knew its employees were developing blood disorders and cancers at the Norco facility and conducted internal medical studies to verify these and other health hazards related to their benzene products. Lois brought the following claims against Shell and Traveler (“Shell”): fraudulent concealment, negligence, strict products liability, former Article 2317 liability, concealment, misrepresentation, fraud, unjust enrichment, loss of consortium, loss of services, loss of affection, loss of nurture, and intentional tort. Lois sought both compensatory and exemplary damages. She also requested trial by jury. Shell brought a motion to dismiss. Shell raised two bases for its motion: (1) Plaintiff's claims are prescribed on the face of the complaint, and (2) Plaintiff's claims are barred by the exclusive remedy provision of the Louisiana Workers' Compensation Act ("LWCA").

Issue:

Was defendant Shell Oil Company liable under the intentional act exception of state workers' compensation laws for alleged violations of safety standards or for failing to provide safety equipment?

Answer:

No

Conclusion:

Defendant Shell's motion to dismiss was granted in part and denied in part by the United States District Court. Shell’s motion to dismiss the survival and wrongful death claims brought by plaintiff Lois Frank as untimely was denied where there were no allegations that Lois had access to or actually received the studies and information recognizing the cancer-causing propensity of benzene, nor was there any indication that the information was publicized or that Lois was given a warning by Shell. However, the claims arising from Mr. Frank’s exposure post-1976 were dismissed because the intentional tort exception to the state workers' compensation laws did not apply. Under the substantially certain exception to the Louisiana Workers' Compensation Act, the jurisprudence requires more than a reasonable probability that an injury will occur and defines certain to mean inevitable or incapable of failing. Mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing. Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, or willfully failing to furnish a safe place to work, this still falls short of the kind of actual intention to injure that robs the injury of accidental character. Almost universally, Louisiana courts hold that employers are not liable under the intentional act exception for violations of safety standards or for failing to provide safety equipment. 

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