Watters v. Department of Social Services
Watters v. Department of Social Services
Dissenting Opinion
dissents from denial of the writ.
I believe this writ application should be granted and the ruling of the two lower courts taken up for review because I do not believe that summary judgment is appropriate at this stage, especially as discovery has not yet been completed. In my opinion, in this case there should be further discovery and subsequent exploration of the facts in a trial on the merits before the district court should determine whether the asbestos exclusion clauses in the defendants’ respective insurance policies apply. In my view, it is premature to enter judgment on whether the asbestos exclusion clause applies before it has been determined that the plaintiffs’ injuries are caused by asbestos or any of the other ailments included in the asbestos exclusion clause.
I would also grant to consider the applicability to this case of our opinion in Doerr v. Mobil Oil Corp., 00-0947 (La.12/19/00), 774 So.2d 119, 139, where Justice Victory acknowledged in dissent that the majority decision in Doerr “will make it virtually impossible to determine coverage issues by declaratory judgment or summary judgement at the outset of litigation”, a view which has particular application in this case at this juncture. In Doerr, plaintiffs sought compensation from, among others, the parish department of water works, for personal injuries allegedly suffered following the consumption and/or use of water contaminated by 1 ¡¿he discharge of hydrocarbons into the parish water supply from
I do not necessarily take issue with the district court’s “upholding all of the asbestos exclusion clauses before the court”. However, it is entirely another matter for the district court to conclude that the asbestos exclusion clauses in this case are not only to be upheld as valid but also are applicable as a bar to the recovery of damages which plaintiffs seek in this case. The question has not yet been answered as to whether the bodily injuries at issue were caused by asbestos, or mold or other toxins brought on by excessive water leakage over a period of time in the Plaza Tower Building, as alleged, or a combination of both, or by some other cause. These questions are, in my view, still to be answered in this case after trial, irrespective of | .-¡whether the majority is correct here in blessing a summary judgment which upholds the asbestos exclusion clauses in the respective policies.
For these reasons, I believe the writ should be granted, and therefore I respectfully dissent from the writ denial.
Opinion of the Court
In re: Watters, Sherry; Breyne, Frances M.; Recasner, Gina; Wiltz, Gretchen; Lemieux, Wendy; - Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, Nos. 01-17775, 01-18355; to the Court of Appeal, Fourth Circuit, No. 2002-C-2490.
Writ denied.
Reference
- Full Case Name
- Sherry WATTERS v. DEPARTMENT OF SOCIAL SERVICES
- Status
- Published