United States: Hazardous Exposure Suit Barred by Exclusive Remedy Defense

Construing Louisiana law, the Fifth Circuit Court of Appeals, in an unpublished decision, agreed with a federal district court that a former employee could not maintain a civil action against two former employers based on his theory that work-related exposure to hazardous chemicals had caused the employee to contract cancer and pulmonary embolisms. The Fifth Circuit also affirmed the district court's decision not to allow the plaintiff to amend his complaint to allege an intentional tort. The Court said the plaintiff had not been diligent, filing the motion to amend only after the defendants had proferred a defense based on the exclusive remedy provisions of the Louisiana Act. At most, said the Court, the plaintiff had alleged the former employers failed to maintain a safe work environment. Under Louisiana's Bazley v. Tortorich ruling, in order to maintain an intentional tort action against a current or former employer, the plaintiff must must show that the employer either (1) "conscientiously desire[d] the physical result of his act, whatever the likelihood of that result happening form his conduct", or (2) "kn[ew] that the result [was] substantially certain to follow from his conduct, whatever his desire …" [Bazley v. Tortorich, 397 So.2d 475, 481 (La. 1981)].

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Million v. Exxon Mobil Corp., et al., 2020 U.S. App. LEXIS 37469 (5th Cir., Dec. 1, 2020)

See generally Larson’s Workers’ Compensation Law, § 103.04.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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