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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 56 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 2nd day of July, 2004, are as follows:

BY WEIMER, J.: 2003-CC-3432 C/W 2003-CC-3434 2003-CC-3435 RALEIGH LANDRY AND CLAILEE AUCOIN LANDRY v. AVONDALE INDUSTRIES,INC., ET AL. (Parish of Orleans) Therefore, the decision of the court of appeal is reversed, the judgment of the district court granting summary judgment in favor of Reilly-Benton Company, Inc. and Liberty Mutual Insurance Company is reinstated, and this case is remanded to the district court for further proceedings not inconsistent with this opinion. REVERSED; SUMMARY JUDGMENT REINSTATED; REMANDED TO DISTRICT COURT.

07/02/04 SUPREME COURT OF LOUISIANA Nos. 03-CC-3432, 03-CC-3434, 03-CC-3435 RALEIGH LANDRY AND CLAILEE AUCOIN LANDRY VERSUS AVONDALE INDUSTRIES, INC., et al.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

WEIMER, Justice We granted certiorari to resolve the narrow issue of whether the provisions of the Louisiana Comparative Fault Law, enacted by Act 431 of 1979 and effective August 1, 1980, apply to a wrongful death action commenced after the decedent's demise in November 2002, from mesothelioma allegedly contracted as a result of exposure to asbestos at various time periods from 1959 to 1974. Answering that inquiry in the affirmative, we hold that Act 431 of 1979 operates prospectively, applying to claims arising from events occurring after its August 1, 1980 effective date, and that the key relevant event giving rise to a claim for wrongful death for purposes of applying the comparative fault law is the victim's death. Since the decedent in this case died in 2002, long after the effective date of Act 431, we conclude that Louisiana's Comparative Fault Law applies to the plaintiffs' wrongful death claim. The judgment of the court of appeal holding to the contrary is reversed. The district court's judgment is reinstated.

FACTS AND PROCEDURAL HISTORY Raleigh Landry worked for Avondale Industries from 1965 to 1967 and for McDermott, Inc., from 1959 to 1961, 1964 to 1965, and 1973 to 1974. During the course of these employments, he was allegedly exposed to asbestos which resulted in his contraction of mesothelioma. On March 28, 2002, Mr. Landry and his wife, Clailee Landry, filed suit against Avondale and its executive officers, McDermott and its executive officers, and several manufacturers and/or distributors of asbestos products for damages arising from his contraction of mesothelioma, first diagnosed in January 2002.1 Despite receiving an expedited jury trial setting, Mr. Landry died on November 21, 2002, before his claims could be tried. Thereafter, in a supplemental and amending petition, Jamie Landry and Glen Landry, children of Raleigh Landry, were substituted for Mr. Landry's survival damages, and, along with their mother, asserted survival and wrongful death actions which arose due to the injury and death of Raleigh Landry. Following the appointment of a special master to hear all preliminary motions, defendant Reilly-Benton Company, Inc. and its insurer, Liberty Mutual Insurance Company, filed a motion for summary judgment asserting that the Louisiana Comparative Fault Law applies to the plaintiffs' wrongful death claims. Plaintiffs opposed the motion.

Among the claims asserted was a claim for loss of consortium filed on behalf of Mrs. Landry. That claim was the subject of an earlier opinion by this court, which found that because all of Mr. Landry's exposure to asbestos occurred between 1959 and 1974, before the 1982 amendment of LSA-C.C. art. 2315 to provide for loss of consortium claims, allowing the consortium claim would be an impermissible retroactive application of the amendment. Landry v. Avondale Industries, Inc., 03-0719, 03-0993, 03-1002 (La. 12/3/03), 864 So.2d 117 ("Landry I"). 2

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In a report to the district court dated April 30, 2003, the special master recommended that Reilly-Benton's motion for summary judgment be granted, assigning the following reasons: Reilly-Benton moves for summary judgment ordering the case be subject to the comparative fault regime adopted in 1996, including the requirement that each person's fault be quantified. Cole v. Celotex Corp., 599 So.2d 1058 (La. 1992), had held that tortious exposure in diseases of long latency is subject to the law at the time of exposure, but Cole was not a wrongful death case. Plaintiff relies on the denial of writs by a panel of the 4th Circuit Court of Appeal in the Steve Dufrene case, a copy thereof is attached for ready reference. The writ was denied in June 2001. However, in September 2002 the Supreme Court authored Austin v. Abney Mills, 824 So.2d 1137 (La. 2002). That case pointed out that the act adopting comparative fault in Louisiana specifically provided that the act does not apply to claims arising from "events" that occurred before the effective date of the act. In Austin the Supreme Court pointed out that the wrongful death act is designed to compensate the claimants' individual damages they suffered from the death of their relative. In Louisiana a tort involves not only substandard conduct, but also damages caused thereby. Though Austin applied to the immunity granted co-employees in the 1975-76 revision of the workers compensation law and the instant motion involves the applicability of the 1996 comparative fault regime, the principles enunciated in Austin are indistinguishable from the issue raised by Reilly-Benton's motion. Since the damages occurred at the time of death, the comparative fault provisions applicable at that time are controlling. I recommend the motion be granted. Plaintiffs filed objections to the special master's report. An objection was also filed on behalf of Peter Territo, Albert Bossier, Jr., Edward Blanchard, and J. Melton Garrett, executive officers of Avondale named as defendants in plaintiffs' petition (hereinafter referred to as "the Avondale executive officers"). Following a contradictory hearing, the district court overruled the objections and adopted the special master's recommendation, granting Reilly-Benton's motion for summary judgment. Both plaintiffs and the Avondale executive officers applied for supervisory writs from the district court's ruling. The applications were consolidated in the court

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of appeal. On September 17, 2003, the court of appeal granted the consolidated writ applications, reversed the district court's ruling and remanded the case for further proceedings. In rendering its decision in this matter, the court of appeal opined: The Comparative Fault Act, La. Acts 1979, No. 431,

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