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)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA LAURENT CIVIL ACTION VERSUS NO: 14-2022 NEW ORLEANS CITY ET AL. SECTION: ā€œJā€(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

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