Laurent v. New Orleans City et al

Filing 81

ORDER granting #73 Defendant City of New Orleans' Rule 12(b)(6) Motion to Dismiss Wrongful Death Claim. Signed by Judge Carl Barbier on 5/26/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAURENT

CIVIL ACTION

VERSUS

NO: 14-2022

NEW ORLEANS CITY ET AL.

SECTION: “J”(5)

ORDER
Before the Court is Defendant City of New Orleans (the City)'s
Rule 12(b)(6) Motion to Dismiss Wrongful Death Claim. (Rec. Doc.
73) The City argues that the Court should dismiss Plaintiff's
wrongful death claim because the Louisiana Workers' Compensation
Act (LWCA) is the exclusive remedy for decedent's alleged workrelated injury. In response, Plaintiff admits that "the [LWCA] bars
his claim for the wrongful death of his father." (Rec. Doc. 75) The
Court agrees.
The law in effect at the time of death controls a wrongful
death claim. See, e.g., Meredith v. Asbestos Corp., Ltd., 97-2593
(La. App. 4 Cir. 2/18/98), 707 So. 2d 1334, 1336-37. It is alleged
that decedent died of mesothelioma in 2013. (Rec. Doc. 73-1) At
that time, the LWCA immunized employers against tort actions,
including wrongful death actions.1 Meredith, 707 So. 2d at 1336.
Plaintiff consequently fails to state a claim for wrongful death in

1

Unless the plaintiff alleges the occurrence of an intentional tort,
Meredith, 707 So. 2d at 1335, which Plaintiff has not done here.

this case. See Frank v. Shell Oil Co., 828 F. Supp. 2d 835, 847,
851 (E.D. La. 2011)(Fallon, J.). Therefore, for the reasons stated
in the City's motion and memorandum and summarized above,
IT IS HEREBY ORDERED that the motion (Rec. Doc. 73) is
GRANTED.
New Orleans, Louisiana this 26th day of May, 2015.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE