Bevrotte v. Caesars Entertainment Corporation
Filing
33
ORDER granting 28 Motion to Dismiss. Signed by Chief Judge Sarah S. Vance on 7/11/12. (jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DENISE BEVROTTE, as statutory
beneficiary of her son, MACEO
BEVROTTE, JR.
CIVIL ACTION
VERSUS
NO: 11-543
CAESARS ENTERTAINMENT
CORPORATION d/b/a HARRAH’S
NEW ORLEANS HOTEL AND CASINO
SECTION: R
ORDER AND REASONS
Before the Court is defendant Caesars Entertainment
Corporation’s (“Caesars”) motion to dismiss. Because plaintiff’s
claims are barred by the Louisiana Workers’ Compensation Act
(“LCWA” or “the Act”), the Court grants defendant’s motion.
I.
BACKGROUND
Denise Bevrotte filed an amended complaint alleging that
Caesars is liable to her for wrongful death damages in connection
with the death of her son Maceo, a former employee of Caesars’s
who was allegedly exposed to second-hand smoke during his 15
years of employment as a dealer at Harrah’s Casino.1 Plaintiff
claims that Maceo was made to endure second-hand tobacco smoke on
the gaming room floor, and contends that the Harrah’s Casino did
1
R. Doc. 25.
not employ sufficient ventilation systems or health and safety
measures to reduce the risks associated with the second-hand
smoke.2 She alleges that smoking was permitted in the gaming area
at Harrah’s 24 hours a day, seven days a week; that management
forbade all employees from choosing to work at the designated
“smoke-free” tables or from complaining about the second-hand
smoke on the gaming floor; that management forbade employees from
requesting that any customer refrain from smoking, blow smoke
away from the table, or move their ashtrays from the table; and
that Harrah’s actually encouraged its customers to smoke by
selling cigars and cigarettes on the gaming floor and offering
cigarettes at no cost to active gamblers.3 She sues defendant for
wrongful death damages under La. C.C. art. 2315.2.
Caesars now moves for dismissal of the amended complaint on
two grounds: (1) that plaintiff’s wrongful death claim is
prescribed; and (2) that her wrongful death claim is barred by
the Louisiana Workers’ Compensation Act.4 Plaintiff opposes the
motion.5
II.
STANDARD
2
Id. at 2.
3
Id. at 6-7.
4
R. Doc. 28.
5
R. Doc. 29.
2
To survive a Rule 12(b)(6) motion to dismiss, the plaintiffs
must plead enough facts “to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 129
S.Ct. at 1949; Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011).
A court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff. Lormand v.
U.S. Unwired, Inc., 565 F.3d 228, 232–33 (5th Cir. 2009); Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). But the Court is not
bound to accept as true legal conclusions couched as factual
allegations. Iqbal, 129 S.Ct. at 1949–50.
A legally sufficient complaint must establish more than a
“sheer possibility” that plaintiffs' claim is true. Id. It need
not contain detailed factual allegations, but it must go beyond
labels, legal conclusions, or formulaic recitations of the
elements of a cause of action. Twombly, 550 U.S. at 555. In other
words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will
reveal evidence of each element of the plaintiffs' claim.
Lormand, 565 F.3d at 255–57. If there are insufficient factual
allegations to raise a right to relief above the speculative
3
level, Twombly, 550 U.S. at 555, or if it is apparent from the
face of the complaint that there is an insuperable bar to relief,
Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492
F.3d 325, 328 n.9 (5th Cir. 2007), the claim must be dismissed.
III. DISCUSSION
A.
Workers’ Compensation
The Louisiana Workers’ Compensation Act provides:
Except for intentional acts provided for in Subsection B,
the rights and remedies herein granted to an employee or his
dependent on account of an injury, or compensable sickness
or disease for which he is entitled to compensation under
this Chapter, shall be exclusive of all other rights,
remedies, and claims for damages[.]
La. R.S. § 23:1032 (emphasis added). It is “well settled that the
LWCA generally applies as the exclusive remedy for both wrongful
death and survival actions filed by the survivors of an injured
worker[.]” In re Frank, 828 F. Supp. 2d 835, 847 (E.D. La. 2011);
see also Theriot v. Damson Drilling Corp., 471 So. 2d 757, 758
(La. App. 3d Cir. 1985) (recognizing that “if Mr. Theriot had
died as a result of his injuries, the plaintiffs could not have
recovered under Article 2315 for his wrongful death or the
survivorship action provided by that article,” and would have
been “relegated to such rights as they may have under the
Worker's Compensation law”); Deshotel v. Guichard Operating Co.,
861 So. 2d 697, 701-702 (La. App. 3d Cir. 2003), aff’d, 916 So.
4
2d 72 (La. 2004), (noting that wrongful death claim based on an
accident arising out of and in the course of decedent’s
employment is squarely within the scope of the Workers'
Compensation Act).
Plaintiff contends that her son “contracted leukemia from
second-hand smoke inhalation that he experienced while working at
Harrah’s Casino,”6 yet argues that whether leukemia is an
occupational disease is an issue that must be determined at
trial. She cites Spillman v. Anco Insulations, Inc., 994 So. 2d
132 (La. App. 1st Cir. 2008), in support of her contention.
Plaintiff in that case sued Exxon after being diagnosed with
mesothelioma in 2005. Id. at 133. He had worked for Exxon in
various positions from 1945 until 1986, a period during which the
legislature first adopted the LWCA (in 1952) and later amended it
to broaden the scope of coverage for occupational diseases (in
1975). Id. at 133-34. After plaintiff died, his wife and daughter
pursued the litigation as a survival action. Id. at 134.
Because
the applicable law in a survival action is determined under the
significant tortious exposure theory,7 the Spillman Court had to
consider when the deceased’s cause of action accrued in order to
6
R. Doc. 29 at 5.
7
See Walls v. Am. Optical Corp., 740 So. 2d 1262, 1273
(La. 1999) (noting that the “exposure theory” applies to
determine applicable law in direct tort actions and survival
actions).
5
determine whether mesothelioma was a covered occupational disease
under the version of the Act in effect at the time of accrual.
Id. at 134-37. The court found no error in the trial court's
conclusion that plaintiff's cause of action had accrued before
La. R.S. § 23:1031.1 was enacted in 1952, and that, consequently,
defendant was not entitled to tort immunity. Id. at 136.
In the case of wrongful death claims, the context presented
here, the Louisiana Supreme Court has held that the LWCA in
effect at the time of death is applicable. See Walls, 740 So. 2d
at 1265-75; see also in re Frank, 828 F. Supp. 2d at 847.
Accordingly, the Court need not consider when Maceo endured his
first significant tortious exposure. The version of the LWCA that
applied at the time of Maceo’s 2010 death is the current version
of the statute, and that version consequently governs Denise
Bevrotte’s wrongful death claim.8
Damages resulting from contraction of an occupational
disease are compensable under the LWCA. La. R.S. § 23:1031.1(A).
And because the rights and remedies provided by the LWCA are
exclusive of all other rights, see La. R.S. § 23:1032, a
plaintiff may not recover in tort if he has suffered an
8
Plaintiff also argues that her amended complaint states
a survival claim, but no such claim exists on the face of that
complaint. Yet even if there were a survival claim presented, the
result would be the same. From the time that Maceo began working
at Harrah’s, the legislature has not made any changes to the LWCA
that would affect Maceo’s right to recover in tort.
6
occupational disease as defined by the Act. The LWCA defines an
occupational disease, in relevant part, as “that disease or
illness which is due to causes and conditions characteristic of
and peculiar to the particular trade, occupation, process, or
employment in which the employee is exposed to such disease.” La.
R.S. § 23:1031.1(B). The Louisiana Supreme Court has interpreted
the statute to apply to diseases “contracted as a result of work
related conditions.” O'Regan v. Preferred Enters., Inc., 737 So.
2d 31, 34 (La. 1999). Certain progressive diseases are
specifically excluded from coverage, but leukemia does not appear
on the list of exclusions. See La. R.S. § 23:1031.1(B) (excluding
“[d]egenerative disc disease, spinal stenosis, arthritis of any
type, mental illness, and heart-related or perivascular disease”
from occupational disease classification).
Because plaintiff contends that Maceo contracted leukemia
because of the working conditions at Harrah’s Casino, she has
alleged an occupational disease as defined by the LWCA. Plaintiff
claims that Maceo had to endure high concentrations of secondsmoke while working as a dealer at Harrah’s, and that he
contracted leukemia as a result of Harrah’s failure to provide a
safe workplace. Indeed, the amended complaint alleges that
Caesars’ workplace rules essentially prevented employees from
protecting themselves from exposure to smoke while working on the
gaming floor, and that Caesars actually encouraged customers to
7
smoke. If indeed second-hand smoke in Harrah’s Casino caused
Maceo’s leukemia as plaintiff alleges, then plaintiff’s wrongful
death claim is barred by the LWCA’s exclusive remedy provision.
If it did not, then plaintiff cannot maintain a cause of action
against Caesars because there would be no causal link between
Maceo’s employment with Harrah’s and his contraction of leukemia.
Either way, plaintiff’s complaint must be dismissed.
Because plaintiff’s wrongful death claim is barred under the
LWCA, the Court need not address whether her claim has also
prescribed.
IV.
CONCLUSION
For the foregoing reasons, the Court grants defendant’s
motion to dismiss.
New Orleans, Louisiana, this 11th day of July, 2012
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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