The Bailey case, as discussed, was determined based upon the precedent set forth by the Louisiana Supreme Court in Bulot v. Intracoastal Tubular Services, Inc. The focus here is on two causes of action, Whether a plaintiff can file both, and receive punitive damages for, a wrongful death and survivorship cause of action.
The Plaintiffs in Bulot were two families who sued the defendant oil refinery for wrongful death and survival. The District Court granted summary judgment, meaning there were no genuine issues of material fact, in favor of the defendant as to one family’s wrongful death action and its claim for punitive damages in its survival action. The Court also granted the defendant’s exception of no right of action as to punitive damages for the second family’s wrongful death action.
Each family had a family member that died after being exposed to radioactive waste. One family alleged that the deceased had worked for a company that engaged in the cleaning of oilfield tubing and pipes. He died of pancreatic cancer in 1999, allegedly as a result of exposure to radioactive waste while employed by the company. The second family’s family member died while La. Civ. Code Ann. art. 2315.3 (‘the statute’) was in effect (between 1984 and 1996). The statute provided that punitive damages may be awarded, in addition to general and special damages, if it is proved by the plaintiff that the sustained injuries were caused by the defendant’s “wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances.”
In order to establish when a tort cause of action accrued in an occupational disease case like this, the plaintiff must present evidence that the exposures were significant and that such exposures later resulted in the manifestation of damages, in this case disease. In short, the exposures must be “significant and continuous.”
The Appeals Court reversed the grant of summary judgment as to the first family’s claim for punitive damages in its survival action, as it found there existed genuine issues of material fact as to whether the family’s deceased relative’s exposures to radioactive material on the jobsite from 1984 to 1992 resulted in his developing cancer. The Court affirmed the grant of summary judgment as to the family’s wrongful death claim, however, because the deceased did not die while the statute was in effect. In addition, the Court affirmed the exception of no right of action for the second family’s claim for punitive damages in its wrongful death claim. The Court determined that damages pursuant to the statute could not exist as a component of a wrongful death action because the law in effect at the time of death is the law that applies in wrongful death actions.
Although both causes of action arise from a common tort, survival and wrongful death actions are separate and distinct. Each arises at a different time and provudes for damage awards for different injuries and losses. A survival action exists simultaneously with the tort and transmits to the beneficiaries (decendents) upon the victim’s death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death. A wrongful death action arises once the victim has died and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim’s death and after. The statute limits a survivor’s recovery to damages actually suffered as a result of the deceased’s death, and cannot recover punitive damages as a result.
A claim for damages pursuant to the statute cannot exist as a component of a wrongful death action, as a wrongful death action is limited to compensatory damages for the victim’s own injuries. Punitive damages may be awarded, if it is proved that the plaintiff’s injuries, were caused by the defendant’s disregard for public safety, but the statute provides for the survivors of the original tort victim to recover all damages for injury to that person, his property or otherwise, caused by the offense.
If you or a loved one feel as though you may have a wrongful death claim, please contact the Berniard Law Firm to determine the validity of your claim, and for expert advice and legal services.