Eugene Barber, Charles Bradley, Sr., Ted Bradley, Noah Carter, Jr., Allen Davis, Ben Davis,Jr., Ben Davis, III, Earl Davis, Eugene Davis, Gregory W. Davis, et al. VS Employers Insurance Company of Wausau (2012CA1518 Consolidated With 2012CA1519)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA iS18 EUGENE BARBER ET AL VERSUS EMPLOYERS INSURANCE COMPANY OF WAUSAU CONSOLIDATED WITH C l 2012 CA 1519 SYLVESTER GRIGSBY VERSUS EMPLOYERS INSURANCE COMPANY OF WAUSAU ET AL On Appeal from the 20th udicial District Court Parish of East Feliciana Louisiana Docket Nos 39 and 41 290 369 Honorable William G Carmichael Judge Presiding RichaM J Fernandez Attorneys for Amber E Cisney Appellant Plaintiff Sylvester Grigsby Metairie LA H Carter Marshall Attorneys for Kevin R Appellee Defendant Employers Insurance Company Tully Nicholas P Arnold Christovich Kearney New Orleans LA P L of Wausau David A Lowe Keegan Denicola Kiesel Attorney for Appellee Defendant Bagwell uban Louisiana Concrete Products Inc C Lowe L Baton Rouge LA BEFORE PARRO WELCH AND KLINE Judgment rendered MAY 3 1 2013 udge 1 William F Kline Jr rstired is serving as judge ad hoc by special appointment of the Louisiana Supreme Court PARRO J Sylvester Grigsby appeals a judgment dismissing with prejudice his claims against an insurer on the basis that they were prescribed We affirm the judgment FACTUAL AND PROCEDURAL BACKGROUND On September 9 2008 suit was filed by or on behalf of seventy five former employees of Central Wood Preserving Inc Central Wood against Employers Insurance Company of Wausau Employers which insured Central Wood and its executive officers These employees alleged that while employed by Central Wood between 1950 and 1976 they were exposed to toxic materials such as creosote asbestos and silica and suffered various illnesses as a result of this exposure Some plaintiffs also alleged that they had sufFered hearing loss as a result of their working conditions On August 24 2011 Sylvester Grigsby filed this suit against Central Wood and its insurer Employers alleging that while employed at Central Wood from 1973 through 1976 he was exposed to hazardous levels of industrial noise causing him to suffer hearing loss On March 15 2012 the court granted a motion filed by Employers and transferred and consolidated Grigsby suit with the Barber suit s Employers answered Grigsby petition and filed an exception raising the s objection of prescription It claimed Grigsby petition showed on its face that s his claims were prescribed as he had not worked at Central Wood since 1976 and did not file suit until 2011 Grigsby argued that he did not know that his gradual hearing loss was caused by exposure to hazardous noise levels at work until he was diagnosed by an audiologist on December 7 2010 Therefore he urged that the doctrine of contra non ua applied to suspend the running entem z In his petition Grigsby identified himself as Sylvester Grigsby however at various points in the record and in briefs to this court his name is spelled Grisby 3 Details of this lawsuit are more particularly described in Barber v Employers Ins Co of Wausau 11 La App lst Cir 697 So3d 454 0357 12 28 4 Grigsby also named as a defendant Louisiana Concrete Products Inc for whom he worked from 1981 to 1984 2 of prescription on his claim until that date After a hearing on the exception on June 11 2012 the court sustained the exception and dismissed Grigsby claim s against Employers A judgment to this effect was signed June 27 2012 In this appeal Grigsby claims that he had no knowledge that he had hearing loss related to his occupational exposure to noise until shortly before he filed suit in 2011 Relying on the doctrine of contra non ua he contends entem prescription was suspended until he acquired that knowledge and the court s failure to apply that doctrine was clear error He further argues that because the application of contra non ualentem is a fact inquiry this issue intensive should be deferred until after discovery has been completed or referred to trial on the merits APPLICABLE LAW A claim for personal injury such as hearing loss is a delictual action subject to a liberative prescription of one year This prescription commences to run from the day injury or damage is sustained See LSA art 3492 The C objection of prescription may be raised by a peremptory exception See LSA P C art 927 At the trial of a peremptory exception evidence may be 1 A introduced to support or controvert any of the objections pleaded when the grounds thereof do not appear from the petition P C LSA art 931 Ordinarily the party pleading prescription bears the burden of proving the right to bring the claim has prescribed However 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 Taylor v Babin 08 2063 La App 1st Cir 5 13 So 633 642 writ denied 09 La 09 8 3d 1285 09 25 9 18 So 76 3d The doctrine of contra non ualentem is a Louisiana jurisprudential doctrine under which prescription may be suspended Jenkins v Starns 11 1170 La 1 85 So 612 623 12 24 3d The Louisiana Supreme Court has recognized four instances where contra non ua applies to prevent the entem 3 running of prescription 1 where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action 2 where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting 3 where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action and 4 where the cause of action is not known or reasonably knowable by the plaintiff even though this ignorance is not induced by the defendant Id This fourth instance is commonly known as the discovery rule The discovery rule is based on the theory that when the claimant is not aware of the facts giving rise to his or her cause of action against the particular defendant the running of prescription is for that reason suspended until the tort victim discovers or should have discovered the facts upon which his or her cause of action is based Doe v Delta Women sClinic of Baton Rouae 09 1776 La App ist Cir 4 37 So 1076 1080 writ denied 10 La 10 30 3d 1238 10 17 3d 9 45 So 1055 Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort Camoo v Correa O1 La 6 828 2707 02 21 2d So 502 510 Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead Medical Review Panel Proceeding of Williams v Lewis 08 La 2223 App lst Cir 5 17 So 26 29 Mere apprehension that something 09 13 3d might be wrong does not make delay in filing suit unreasonable nor does knowledge that one has a disease Barber v Emolovers Ins Co of Wausau 0357 1i La App lst Cir 6 97 So 454 465 12 28 3d A trial court findings of fact on the issue of prescription are subject to s the manifest error wrong standard of review clearly London Towne Condo sAss Homeowner n v London Towne Co 06 La 10 939 So 0401 06 17 2d 4 1227 1231 Pursuant to this standard a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong Smith v Louisiana Dent of Corrections 93 La 2 633 SoZd 129 1305 94 28 132 Stobart v State through Deqt of Transp and Dev 617 So 880 882 2d La 1993 An appellate court should not re the evidence or substitute weigh its own factual findings Pinsonneault v Merchants Farmers Bank Trust Co 01 La 4 816 So 270 278 2217 02 3 2d 79 APPLICATION OF LAW TO FACTS s Grigsby petition alleged that while employed at Central Wood from 1973 through 1976 he was exposed to hazardous levels of industrial noise causing him to suffer hearing loss This suit was not filed until August 2011 approximately 35 years after the last date on which the injury or damage from that exposure could have occurred Since the face of the petition revealed that s Grigsby cause of action against Employers insured had prescribed he had the burden to demonstrate prescription was interrupted or suspended In support of his claim that he did not discover that he had hearing loss related to his decades employment Grigsby submitted an audiologist earlier s report from his evaluation on December 7 2010 That report concluded that he had a moderate to moderately high frequency sensorineural hearing severe loss bilaterally but also showed that he had essentially normal hearing sensitivity at lower frequencies The report does not state anything about the possible cause of this partial hearing loss Grigsby claims that until that diagnosis he was not aware that he had a hearing loss affecting only a portion of his hearing spectrum or that such a condition is commonly associated with noise exposure He contends he filed suit within one year of making the discovery that he suffered from noise hearing loss induced However the audiologist report also s stated that Grigsby had complaints of bilateral hearing loss which he has noticed for about the last 12 years This statement belies his argument that he was unaware of his hearing 5 loss until diagnosed in December 2010 A person becomes aware of a hearing loss when he realizes that although he is able to hear some sounds there are other sounds that are audible to other persons but not to him Based on the history given to the audiologist Grigsby knew for at least twelve years that he had a partial hearing loss that affected his ability to discern certain sounds This knowledge was sufficient to put a reasonable person on notice that further inquiry was necessary concerning the possible cause of his condition It is common knowledge that hearing can be damaged by exposure to loud noises Grigsby must have suspected that his hearing loss might be attributable to the noise level in his former working environment It was simply unreasonable for Grigsby to live with this condition for over twelve years without doing anything about it until his attorney sent him to an audiologist for tests Based on the evidence presented in connection with the exception we conclude that Grigsby failed to prove that he only discovered his hearing loss in 2010 or that he was not put on notice long before 2010 that his condition might be connected to noise exposure at the various facilities where he had worked The audiologist report while establishing his current hearing loss also s showed that he had discovered the condition years earlier Thus he failed to carry his burden of proof that prescription was interrupted by his inability to discover a possible connection between his hearing loss and his working environment Therefore the district court did not err in sustaining the exception of prescription and dismissing his claims 5 In Sellers v Lvkes Bros Steamshio Co 94 La App 4th Cir 12 648 So 496 1107 94 28 2d 498 the court observed that common sense should have informed the plaintiff that his hearing may have been damaged by the noise in the engine rooms of the ships where he had worked some twenty years earlier The court cited with approval the district court reasons for s judgment which stated He did not need a doctor to tell him in 1993 that noise exposure causes hearing loss Id 6 With respect to Grigsby mntention that this issue should be deferred until after discovery s has been completed or referred to trial on the merits we note that he did not seek an extension of time in the district court Therefore this court cannot delay the finality of the judgment 6 CONCWSION Based on the above reasons the June 27 2012 judgment is affirmed All costs of this appeal are assessed to Sylvester Grigsby AFFIRMED 7
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