Orleans Parish School Board v. Asbestos Corp.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30670

ORLEANS PARISH SCHOOL BOARD,

Plaintiff-Appellant,

versus

ASBESTOS CORP. LTD.; CELOTEX CORP; ASBESTOS

SPRAY CORP.; U.S. MINERAL PRODUCTS CO.; U.S.

GYPSUM CO.; UNIDENTIFIED PARTIES; STANDARD

INSULATIONS, INC.; SPRAY OF LAKE CO.; RUBEROID

CO.; RAYMARK IND., INC.; RAYBESTOS MANHATTAN;

PFIZER, INC.; OWENS CORNING; COLBERT LOWREY

HESS & BOUDREAUX, INC.; NICOLET IND. INC.;

NATIONAL GYPSUM COMPANY; LAKE ASBESTOS OF

QUEBEC CO.; KEENE CORP.; HEDRICK & HOOTEN,

INC.; H.K. PORTER CO., INC.; CAREY CAN MINES,

LTD.; GEORGIA-PACIFIC CORPORATION; G.A.F. CORP.;

FRERET & WOLF, INC.; FLINTKOTE CO.; FIBERGLASS

CORP.; FIBERBOARD CORP.; CURTIS, INC.; AUGUST

PEREZ & ASSOCIATES; EDWARD C. MATHES; HENRI

M. FAVROT; MATHES BERGMAN FAVROT & ASSOC-

IATES; FRERET AND WOLF ARCHITECTS; ALBERT J.

WOLF, JR.; JAMES P. OUBRE & ASSOCIATES; LEAKE

ASSOCIATE ARCHITECTS; HAROLD E. PIQUE; ROBERT

CUMMINS ASSOCIATE ARCHITECTS; MURVAN M. MAXWELL;

J. BUCHANAN BLITCH; BURK & LAMANTIA ARCHITECTS,

INC.; FAVROT, REED, MATHES & BERGMAN; ALBERT J.

SAPUTO; PARHAM & LABOUISSE; LOWREY, HESS, BOUDREAUX

ARCHITECTS; MAXWELL & LEBRETON; ANTHONY J. GENDUSA;

EDWARD MY TSOI; GRIMBALL, GRIMBALL, GORRONDONA,

KEARNEY & SAVOYE; LLOYD ROSEN; ROCK & GALLOWAY

ARCHITECTS; ERNEST E. VERGES & ASSOCIATES, INC.;

LAWRENCE & SAUNDERS; LEAKE FRERET & WOLF; HENRY G.

GRIMBALL; SPRAGUE & LAMP ASSOCIATES; THOMPSON B. BURK

& ASSOCIATES ARCHITECTS; ARMSTRONG WORLD INDUSTRIES,

FLOOR DIVISION, INCORPORATED; KENTILE FLOORS, INC.,

Defendants,

and

W. R. GRACE & CO.,

Defendant-Appellee.

Appeal from the United States District Court

For the Eastern District of Louisiana

May 22, 1997

Before POLITZ, Chief Judge, GOODWIN* and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:

The Orleans Parish School Board (School Board) appeals an adverse

summary judgment in its action to recover the costs of removing asbestos from

school buildings. Concluding that the district court properly held that the School

Board’s claims against W.R. Grace & Co.-Conn. (Grace) had prescribed, we affirm.

BACKGROUND

In the late 1970s and early 1980s, school boards across the nation learned of

the potential dangers of asbestos, the possibility of its presence in school buildings,

and the expense of its removal. Motivated by this knowledge, in 1983 the school

boards filed a national class action against numerous asbestos manufacturers. In

1988 the School Board opted out of the class action and filed suit in Louisiana state

court against the same asbestos manufacturers, including Grace.

The School Board’s action was removed to federal court and Grace moved

for summary judgment, contending that the claims were subject to a one-year

liberative prescription which had accrued before the filing of the national class

*

Circuit Judge of the Ninth Circuit, sitting by designation.

2

action. The School Board countered by urging that its claims had not prescribed

and, in the alternative, that La. R.S. 9:5644(c) revived otherwise prescribed claims

against asbestos manufacturers. The district court agreed with Grace, entered

summary judgment dismissing the action, and the School Board timely appealed.

ANALYSIS

We review a district court’s entry of summary judgment de novo and apply

the identical legal standards as the district court.1 The district court’s entry of

summary judgment will be deemed appropriate if “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.”2

We sit herein as an Erie court and apply the substantive law of the state of

Louisiana.3 The primary source of law in Louisiana is the Louisiana Civil Code;

a secondary source is its jurisprudence.4 We therefore consider first the Civil Code

and then the decisions of the Louisiana Supreme Court in our determination of the

validity vel non of Grace’s limitations claim, in civilian terminology cognomened

prescription.

Article 3492 of the Civil Code provides the applicable prescriptive period for

1

Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773 (5th Cir. 1997).

2

Fed.R.Civ.P. 56(c).

3

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).

4

La. Civ. Code art. 1 and cmt.b.

3

the School Board’s claims:

Delictual actions are subject to a liberative prescription of one year.

This prescription commences to run from the day injury or damage is

sustained....

Within the realm of delictual actions against asbestos manufacturers, the Louisiana

Supreme Court recently dispositively decided the time of the commencement of

accrual of this one-year prescriptive period.

In Cameron Parish School Board v. Acands, Inc.5 the Cameron Parish School

Board sued asbestos manufacturers to recover the costs of removing asbestos from

its school buildings. One manufacturer filed a peremptory exception of

prescription. Upon its review of the exception of prescription, Louisiana’s highest

state court noted that it is often difficult to identify the exact point in time that

prescription begins to run. It held, however, that at the latest, prescription begins

to run against a school board in a suit against an asbestos manufacturer when the

school board becomes aware that asbestos is present in “at least some of its

buildings” posing a health risk to employees, and that it must be removed at a

considerable expense.6

Thus informed, we consider the timeliness of the instant claims. The School

Board learned that it had asbestos in at least some school buildings in 1979 when,

prompted by admonitions of the Environmental Protection Agency, it conducted

a visual inspection of all of its school buildings, and collected 301 samples of

5

687 So.2d 84 (La. 1997).

6

Id. at 89.

4

building materials from six schools. It submitted 24 samples for laboratory testing

which established the presence of asbestos in five of the schools.7 Further, in a

report entitled “Asbestos in New Orleans Public Schools A Status Report,” the

School Board reported that

[a]ll schools, administrative buildings, and support service locations--

136 structures--were inspected visually for presence of asbestos with

the following results:

99 schools with some friable materials, some of which could be asbestos

20 locations with all asbestos-type material in good condition

17 sites with no asbestos-type material.8

In 1979 the School Board also learned of the potential health risks associated

with asbestos. The EPA sent numerous documents detailing the dangers of

asbestos to school boards across the nation. Of particular note, the School Board

received a document entitled “School Asbestos Program Questions & Answers.”

In this document, the EPA explained that asbestos in school buildings was of great

concern because “[e]xposure to asbestos fibers c[ould] cause debilitating or fatal

diseases.” The EPA also characterized asbestos as hazardous warning that

[e]pidemiological studies of asbestos workers have shown that

exposure to asbestos increases the risks of developing lung cancer,

mesothelioma...and asbestosis....EPA believes that any exposure to

asbestos involves some increase of risk. No safe level of exposure or

“threshold” level has ever been established....

Finally, by 1980 the School Board knew that asbestos had to be removed

7

The School Board tested the remainder of the 301 bulk samples in 1981 and 1982.

8

This same information was contained in a report prepared by Dr. Samuel A. Scarnato,

the Deputy Superintendent. The report was entitled “Asbestos In Schools,” dated

November 30, 1979, and distributed to both the Superintendent and the Members of the

School Board.

5

from its school buildings and that the removal process was an expensive one. The

1979 status report explained that correction of the asbestos problem would begin

after all of the bulk samples were tested. In addition, the report characterized the

removal process as complex and necessarily expensive. In 1980 the School Board

prepared an “Asbestos Survey and Estimate” which reflected that the cost of

removing asbestos would be approximately $5,000,000. That same year, the

School Board began to remove asbestos from its school buildings.

Although from the record we cannot pinpoint the exact day that prescription

began to run against the School Board, it is not necessary that such be done.9 The

record reflects beyond peradventure that the School Board knew by sometime in

1980 that asbestos was a serious problem and that it necessitated an extensive and

expensive removal process. The one year liberative prescription for delictual

actions began to accrue against the School Board at that time. The School Board’s

claims were thus prescribed by the time the national class action lawsuit was filed

in 1983.10

The School Board contends that even if its claims prescribed, they were

revived by La. R.S. 9:5644(C).11 We are not persuaded. This issue was decided

9

Cameron Parish.

10

The district court concluded that prescription began to run against the School Board

in 1981. Even under this expansive reading of the facts, the School Board’s claims were

prescribed long before the filing of the national class action.

11

La. R.S. 9:5644(C):

Any person who has an action to recover for asbestos

abatement work under the provisions of this Section but

whose action is barred by the prescriptive period provided in R.S. 9:5644 shall have one

6

conclusively in Cameron Parish in which the Louisiana court held that La. R.S.

9:5644(c) could not be retroactively applied to “claims as to which prescription has

already accrued.”12 We act herein as an Erie court and this decision is dispositive

of the School Board’s argument. We therefore conclude and hold that the School

Board’s claims against Grace prescribed before the filing of any litigation which

might have interrupted prescription and the claims were not revived by 9:5644(c),

or any other statutory enactment.

The judgment appealed is AFFIRMED.

year from the effective date of this Act within which to bring an action or be forever

barred.

12

Cameron Parish at 92.

7