Savoie et al v. Pennsylvania General Insurance Company et al

Filing 200

ORDER AND REASONS. It is HEREBY ORDERED that Defendant's Motion to Re-urge Exception of Res Judicata (Rec. Doc. 161 ) is GRANTED. It is FURTHER ORDERED that Plaintiffs' Motion to Dismiss Owens-Illinois' Exception of Res Judicata (Re c. Doc. 165 ) is DENIED AS MOOT. It is FURTHER ORDERED that Plaintiffs' Motion for Leave to File Sur-Reply (Rec. Doc. 195 ) is DENIED AS MOOT. It is FURTHER ORDERED that Plaintiffs' Motion to Seal Document (Rec. Doc. 196 ) is DENIED AS MOOT. Signed by Judge Carl Barbier on 10/12/2017. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

LORITA M. SAVOIE, ET AL.

CIVIL ACTION

VERSUS

NO: 15-1220

PENNSYLVANIA GENERAL INSURANCE

SECTION: J(3)

CO., ET AL.
ORDER AND REASONS
Before the Court is a Motion to Re-urge State Court Exception
of Res Judicata (Rec. Doc. 161) filed by Owens-Illinois, Inc.
(“Defendant”), an opposition thereto (Rec. Doc. 168) filed by
Plaintiffs, and a reply (Rec. Doc. 190) filed by Defendant. Having
considered the motion and legal memoranda, the record, and the
applicable law, the Court finds that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
On October 7, 1991, Joseph Savoie (“Decedent”) filed a lawsuit
in the Civil District Court for the Parish of Orleans against
Defendant and others, alleging that asbestos exposure during his
employment at Avondale Shipyard caused him to develop asbestosis.
During the pendency of that litigation, Decedent and his wife
entered into a Receipt, Release, and Indemnification Agreement
(“Release

Agreement”)

with

Defendant
1

as

part

of

a

group

settlement. 1

Per the terms of the Release Agreement, Decedent and

his wife agreed to release Defendant from any causes of action
arising

out

of

Decedent’s

asbestos-related

injury,

including,

inter alia, mesothelioma, cancer, wrongful death, and survival
claims.

The scope of said agreement is the subject of the instant

dispute.
Decedent was diagnosed with mesothelioma, a cancer caused by
exposure to asbestos, seventeen years after he entered into the
Release Agreement, and for that reason, filed the instant suit
against Defendant (and others) in the Civil District Court for the
Parish of Orleans on August 21, 2014.

Subsequent to filing this

lawsuit, Decedent died as a result of his mesothelioma. Decedent’s
surviving wife and children (“Plaintiffs”) then filed an amended
petition for damages and joined the lawsuit seeking survival and
wrongful death damages pursuant to Louisiana law.
removed the lawsuit to this Court on April 16, 2015.

Defendants
Defendant

then filed the instant Motion to Re-urge State Court Exception of
Res Judicata (Rec. Doc. 161) and Plaintiffs filed an opposition
thereto (Rec. Doc. 168).

After considering the briefs, the motion

is now before the Court.

1

Defendant settled a total of 414 claims for a sum of $1,660,500.

The Savoies

received $4,000 of that total settlement amount in exchange for dismissing
Decedent’s claims against Defendant.
2

PARTIES’ ARGUMENTS
Defendant argues that the Court should grant its motion
because the Release Agreement clearly and unambiguously releases
Defendant from all future claims related to Decedent’s asbestos
exposure,

including

any

mesothelioma

claims,

wrongful

death

claims, and survival actions.
Plaintiffs

argue

that

the

Court

should

deny

Defendant’s

motion because Defendant has failed to carry its burden regarding
two elements of res judicata. Additionally, Plaintiffs contend
that the Court should deny Defendant’s motion for the following
reasons.

First, Plaintiffs argue that the parties never intended

to release mesothelioma claims.

To that end, Plaintiffs also

assert that the Release Agreement is void for lack of lawful cause
because Decedent and his wife were never compensated for Decedent’s
mesothelioma
Release

diagnosis.

Agreement

Second,

violates

public

Plaintiffs
policy.

allege
Next,

that

the

Plaintiffs

contend that the Release Agreement is unenforceable as contra bonos
mores because Decedent and his wife never received a copy of the
master settlement agreement.

Finally, Plaintiffs contend that

Defendant failed to produce the complete settlement documents and
that

production

is

required

before

Defendant’s motion.

3

the

Court

can

rule

on

DISCUSSION
The

doctrine

of res

judicata precludes

re-litigation

of

claims and issues arising out of the same factual circumstances
when there is a valid final judgment. Myers v. Nat’l Union Fire
Ins. Co. of Louisiana, 2009-1517, p. 5 (La. App. 4 Cir. 5/19/10),
43 So. 3d 207, 210; see La. Stat. Ann. § 13:4231.

A party seeking

to assert an exception of res judicata must prove:
(1) the judgment is valid; (2) the judgment is
final; (3) the parties are the same; (4) the cause
or causes of action asserted in the second suit
existed at the time of the final judgment in the
first litigation; and (5) the cause or causes of
action asserted in the second suit arose out of the
transaction or occurrence that was the subject
matter of the first litigation.
Burguireres v. Pollingue, 02-1385, pp. 8-11 (La. 2/25/03), 843 So.
2d 1049, 1053-5.

While the doctrine of res judicata is ordinarily

predicated upon a final judgment between the same parties, the
doctrine is also applicable where a transaction or settlement of
a disputed or compromised matter has been entered into between the
parties.

Ellison v. Michelli, 513 So. 2d 336, 338 (La. App. 4

Cir. 1987); see Thompson v. Bank of New Orleans and Trust Co., 422
So. 2d 230, 231 (La. App. 4 Cir. 1982); see also Ortego v. State,
Dep’t of Transp. & Dev., 96-1322, p. 7-8 (La. 2/25/97), 689 So. 2d
1358, 1364 (noting that under Louisiana law, a valid compromise
may form the basis of a plea of res judicata).

4

A compromise is a contract whereby the parties, through
concessions made by one or more of them, settle a dispute or an
uncertainty concerning an obligation or other legal relationship.
La. Civ. Code art. 3071.
bringing

a

subsequent

compromised.

A compromise precludes the parties from
action

based

upon

La. Civ. Code art. 3080.

the

matter

that

was

A party seeking to

interpose a release instrument to support an exception of res
judicata bears “[t]he burden of proof . . . to establish the
requisites for a valid compromise, including the parties’ intent
to settle the differences being asserted in the action in which it
is interposed.”

Brown v. Drillers, Inc., 630 So. 2d 741, 747 (La.

1994); Myers, 43 So. 3d at 211.

However, “[w]here a settlement

and release refer expressly to the claim sought to be released by
the party seeking to enforce the settlement . . . the burden
[shifts] to the party seeking to oppose the enforcement of the
[agreement] to prove that there was no meeting of the minds.”
Hymel v. Eagle, 2008-1287, p. 13 (La. App. 4 Cir. 3/18/09), 7 So.
3d 1249, 1257.
Accordingly, Defendant bears the burden of establishing res
judicata.
at 747.
burden

See Myers, 43 So. 3d at 211; see also Brown, 630 So. 2d
Plaintiffs contend that Defendant has failed to meet its

regarding

the

validity

of

the

Release

Agreement.

In

addition, Plaintiffs assert that Defendant has failed to establish
5

that the causes of action asserted in the current suit existed at
the time Decedent and his wife executed the Release Agreement. 2
I.

The Release Agreement is Valid
Plaintiffs

assert

that

the

Release

Agreement

is

invalid

because it was not signed by both parties. Pursuant to La. Civ.
Code art. 3072, a compromise must be reduced to writing and signed
by the parties or their agents.

La. Civ. Code art. 3072; see

Sullivan v. Sullivan, 95-2122, p. 4 (La. 4/8/96), 671 So. 2d 315;
see also Lavan v. Nowell, 708 So. 2d 1052, 1052 (La. 1998).
However, the signatures need not be contained in one document to
satisfy the writing requirement of La. Civ. Code art. 3072.

See

Felder v. Georgia Pac. Corp., 405 So. 2d 521, 523 (La. 1981)
(“Where

two

instruments,

when

read

together,

outline

the

obligations each party has to the other and evidence each party’s
acquiescence in the agreement, a written compromise agreement, as
contemplated by La. C.C. art. 3071, has been perfected.”).
Although

the

Release

Agreement

bears

the

signatures

of

Decedent and his wife, it does not contain Defendant’s signature
or that of one if its agents.
included

in

the

record

Defendant’s behalf.

2

were

Nevertheless, other documents

signed

by

individuals

acting

on

For example, Defendant’s attorney, Walter

Plaintiffs do not assert that Defendant has failed to meet its burden regarding

the second, third, and fifth elements of res judicata.
6

Watkins, electronically signed the last page of the Settlement
Agreement. See Regions Bank v. Cabinet Works, L.L.C., 11-748, p.
15 (La. App. 5 Cir. 4/10/12), 92 So. 3d 945, 955 (noting that if
a law requires a record to be in writing, or if the law requires
a signature, an electronic signature satisfies the law).

The

signed Settlement Agreement provides that for each case dismissed,
Defendant agrees to pay $4,000 if the principal diagnosis is
asbestos-related.

Accordingly, the record reflects a Settlement

Check Request Form which affirms that Decedent was to receive
$4,000 out of the total $1,660,500 group settlement.

In addition,

the group settlement check, for “full and final settlement of any
and all claims,” bears the signature of Defendant’s treasurer.
When construed together, these documents clearly demonstrate that
Defendant agreed to pay Decedent and his wife $4,000 in exchange
for them entering into the Release Agreement. See La. Civ. Code
art. 3071.

Therefore, because the signed documents outline the

obligations and acquiescence of each party to the compromise, they
satisfy the writing requirement of La. Civ. Code art. 3072.
Felder, 405 So. 2d
and

defendant’s

See

at 523 (“[T]he release, signed by plaintiff,

$700.00

draft

identified

with

the

release,

together constitute a compromise agreement in writing and signed
by both parties.”).

7

II.

Decedent’s Mesothelioma Claim Existed When the Parties
Executed the Release Agreement

A party seeking to invoke the exception of res judicata must
establish that the cause or causes of action asserted in the second
suit existed at the time of the final judgment in the first
litigation.

Burguireres v. Pollingue, 02-1385, pp. 8-11 (La.

2/25/03), 843 So. 2d 1049, 1053-5. Plaintiffs assert that Defendant
has failed to meet its burden regarding this element. Specifically,
Plaintiffs contend that Decedent’s claim did not exist until
seventeen years after he signed the Release Agreement when Decedent
was diagnosed with mesothelioma.
In Legendre v. Travelers Indemnity Co., the Louisiana Fourth
Circuit Court of Appeal analyzed whether a defendant met its burden
regarding each element of res judicata. 14-0154, p. 7 (La. App. 4
Cir. 5/14/2014). 3

The plaintiff argued, inter alia, that the

defendant could not establish the fourth element because he had

3

Legendre v. Travelers Indemnity Co., attached to Defendant’s motion as an

exhibit, is an unpublished “supervisory writ.”

It is the only case the Court

has found that analyzes this element of res judicata as applied to a release of
future mesothelioma claims.

However, it traces the well-established principle

that future things (e.g., a future mesothelioma claim) may be the subject of a
compromise agreement.

See Daigle v. Clemco Indus., 613 So. 2d 619, 622-25 (La.

1993) (discussing that future things may be the object of a contract and holding
that a spouse’s compromise of a potential wrongful death claim had res judicata
effect).
8

not been diagnosed with mesothelioma at the time he signed the
settlement

agreement.

Id.

at

14.

The

court

rejected

the

plaintiff’s argument and affirmed the trial court’s finding of res
judicata.
the

Id. at 15.

purposes

of

res

Essentially, the court reasoned that for
judicata,

plaintiff’s

mesothelioma

claim

existed years before he was actually diagnosed because the release
“included language that by signing the agreement, [the plaintiffs]
would be releasing all claims which include future death claims,
and they did in fact sign said agreement.”

Id.

Here, the Release Agreement includes an express release of
future mesothelioma claims, wrongful death claims, and survival
actions.

Thus, following the court’s reasoning in Legendre,

because the Release Agreement contains language that includes the
specific

claims

brought

in

the

instant

dispute,

said

claims

“existed” when Decedent and his wife signed the Release Agreement.
A compromise does not affect rights subsequently acquired by a
party, unless those rights are expressly included in the agreement.
La. Civ. Code art. 3078; see also Daigle v. Clemco Indus., 613 So.
2d 619, 622-25 (La. 1993) (discussing that future things may be
the object of a contract and holding that a spouse’s compromise of
a

potential

wrongful

death

claim

had

res

judicata

effect).

Furthermore, notwithstanding Plaintiffs’ argument that asbestosis
and mesothelioma are different causes of action, Louisiana courts
9

have

granted

exceptions

of

res

indistinguishable circumstances. 4

judicata

in

factually

See Hymel, 7 So. 3d at 1256;

see also Hebert v. Avondale Industries, Inc., 13-0518, p. 2 (La.
App. 4 Cir. 5/1/13); Legendre, 14-0154 at 15.
Defendant

has

established

that

Decedent’s

Accordingly, the

mesothelioma

claim

existed at the time Decedent signed the Release Agreement.
III. Plaintiffs Have Failed to Carry Their Burden of Proving
the Invalidity of the Release Agreement
Because
existence

of

Defendant
a

valid

has

carried

compromise,

its
the

burden
burden

regarding
now

shifts

Plaintiffs to prove that the Release Agreement is invalid.

the
to
See

Ellison, 513 So. 2d at 339 (“Compromises are favored in the law
and the burden of proving the invalidity of a compromise is on the
party attacking the agreement.”).

A compromise precludes the

parties from bringing a subsequent action based upon the matter
that was compromised.

La. Civ. Code art. 3080.

Thus, because

the Release Agreement includes an express release of mesothelioma
claims, Plaintiffs, as the party attacking the agreement, bear the
burden of proving its invalidity.

See Hymel, 7 So. 3d at 1256

(noting that the burden shifts to the party seeking to oppose the

4

Plaintiffs have produced no cases wherein a court has expressly dismissed an

exception of res judicata because the plaintiff’s mesothelioma claim did not
exist at the time the parties entered into the release.
10

enforcement

of

the

settlement

agreement

if

the

settlement

agreement expressly refers to the claim sought to be released).
A. The Parties Intended to Settle Mesothelioma Claims
Plaintiffs allege that Decedent and his wife did not intend
to settle future mesothelioma claims because they were unaware
that

Decedent

could

contract

mesothelioma.

In

addition,

Plaintiffs contend that the mere nuisance value they received in
exchange for the Release Agreement evinces their lack of intent to
settle

such

claims.

Under

Louisiana

law,

“the

compromise

instrument is the law between the parties and must be interpreted
according to the parties' true intent.”

Brown, 630 So. 2d at 748.

A compromise settles only those differences that the parties
clearly intended to settle, including the necessary consequences
of what they express.

La. Civ. Code art. 3076.

Even when

valid, releases of future actions are narrowly construed to assure
that the parties fully understand the rights released and the
resulting consequences.
if

Brown, 630 So. 2d at 753.

the release instrument

leaves

any

doubt

as

As a result,
to

whether

a

particular future action is covered by the compromise, it should
be construed not to cover such future action. See id. (“Defendants'
failure to use language in the release instrument which would have
clearly provided for a waiver of a future wrongful death action
evidences a lack of intent to compromise such future action.”);
11

see also Dimitri v. Dimitri, 2000-2641, pp. 6-7 (La. App. 4 Cir.
1/30/02), 809 So. 2d 481, 486 (finding that a general release of
“all claims” did not include a release of plaintiff’s claims for
personal injuries and total medical expenses).
In Breaux v. Mine Safety Appliances Co., the Louisiana Fifth
Circuit Court of Appeal held that a general release of “any and
all claims” did not affect the plaintiff’s ability to assert a
subsequent cause of action for mesothelioma.

98-113, p. 2-3 (La.

App. 5 Cir. 8/25/98), 717 So. 2d 1255, 1255-56.

The plaintiff

filed a lawsuit against his employer alleging damages from workrelated asbestos exposure, but later settled the claim and executed
a general release of “any and all claims” for $500.

Id. at 2.

Sixteen years later, the plaintiff was diagnosed with mesothelioma
and filed a second suit against the same defendant.

Id. at 2-3.

The court held that the plaintiff’s claims were not barred by res
judicata for two specific reasons: (1) the plaintiff was not
diagnosed with an asbestos-related disease at the time he entered
into the settlement agreement and (2) the settlement agreement
failed to include an express release of mesothelioma claims.

Id.

at 6. In light of this, the court concluded that despite the
plaintiff’s general release of any and all claims, the plaintiff
never intended to release the defendant from future mesothelioma
claims.

Id. (“If the agreement intended to include mesothelioma,
12

defendant would surely have included it in the listed diseases. As
plaintiff argues, this settlement was a nuisance settlement.”).
In contrast, the Louisiana Fourth Circuit Court of Appeal
held that an express release of all future mesothelioma and cancer
claims effectively barred the plaintiff’s subsequent mesothelioma
claim in Hymel v. Eagle, Inc. The plaintiff in Hymel sued a number
of defendants alleging that he was exposed to asbestos while he
worked at Avondale Shipyard.

Hymel, 7 So. 3d at 1251.

The

plaintiff subsequently settled the suit for $15,000 and executed
a “Release, Discharge, and Indemnity Agreement” that included a
specific

release

of

any

and

all

mesothelioma and cancer claims. Id.

future

asbestos-related

Notwithstanding the release,

the plaintiff initiated a second lawsuit against the same defendant
years later after he contracted mesothelioma.

Id. at 1252.

The

Fourth Circuit of Appeal found the facts in Hymel distinguishable
from those in Breaux and held that the plaintiff’s claim was barred
by the exception of res judicata. Id. at 1258.
The

court

reasoned

that,

unlike

Breaux,

the

settlement

agreement specifically mentioned both mesothelioma and cancer by
name.

Hymel, 7 So. 3d at 1254. Also, unlike Breaux, the plaintiff

had an asbestos-related disease (asbestosis) at the time he entered
into the agreement and was represented by counsel.

Id. at 1253-

54. Regarding the value received by the plaintiff, the court noted
13

that the $15,000 settlement amount was for a sum “thirty time[s]
greater than the settlement in Breaux, and therefore, [could not]
be

characterized

as

a

nuisance

settlement.”

Id.

at

1254.

Furthermore, the court reasoned that because the plaintiff had
sued multiple defendants, the settlement amount did not represent
the total value of what he could expect to receive for having
contracted mesothelioma. Id. 5
The Release Agreement at issue contains an express release of
claims involving “mesothelioma . . . and all related lung diseases
.

.

.

whether

past,

present

or

future,

without

including wrongful death and survival actions.”

limitation,

Such clear and

unambiguous language leaves no doubt that the parties intended to
release not only Decedent’s pending asbestosis claim, but also
future mesothelioma claims, wrongful death claims, and survival
actions. See Brown, 630 So. 2d at 754 (“Defendants' failure to use
language

in

the

release

instrument

which

would

have

clearly

provided for a waiver of a future wrongful death action evidences
a lack of intent to compromise such future action.”); see also
Breaux, 717 So. 2d at 1257 (“[I]f the agreement intended to include
mesothelioma, defendant would surely have included it in the listed
diseases.”).

5

Compromises are governed by the same general rules

The Louisiana Fourth Circuit Court of Appeal mirrors this analysis in Herbert

v. Avondale Indus., Inc., 13-0518 (La. App. 4 Cir. 5/1/13).
14

of construction applicable to contracts, Brown, 630 So. 2d at 748,
and “[w]hen the words of a contract are clear and explicit and
lead to no absurd consequences, no further interpretation may be
made in search of the parties' intent,”

La. Civ. Code art. 2046. 6

Despite this, Decedent’s wife asserts that no one explained
the releases to her or her husband, that neither she nor her
husband could read the releases, and that she had never heard of
mesothelioma until her husband was diagnosed.

Like the plaintiff

in Hymel, Decedent was diagnosed with asbestosis, an asbestosrelated disease, at the time he and his wife signed the Release
Agreement.

Decedent

and

his

wife

warranted

in

the

Release

Agreement that they had “discussed [his] physical and medical
condition with knowledgeable medical authorities” and “were fully
aware that his condition may grow worse that [sic] it is or seems.”
By signing the Release Agreement, Decedent and his wife affirmed
that they had read the agreement, discussed it with their attorney,
and understood all the provisions of the agreement in its entirety.
Id.

A person who signs a written instrument is presumed to know

its contents and cannot avoid its obligations by contending that
he did not read it, or that it was not explained or that he did

6

Because the facts establish that both parties intended to settle mesothelioma

claims, the above analysis is also applicable to Plaintiffs’ assertions that
the Release Agreement should be rescinded for error.
15

not understand it. Hymel, 7 So. 3d at 1258 (citing Smith v. Leger,
439 So. 2d 1203 (La. App. 1st Cir. 1983); see First South Farm
Credit, ACA v. Gailliard Farms, Inc., 38, 731, p. 3 (La. App. 2
Cir. 08/18/04), 880 So. 2d 223, 225.
at

the

time

he

executed

the

Given Decedent’s diagnosis

Release

Agreement,

the

specific

reference to mesothelioma contained therein, and the fact that he
and his wife were represented by counsel, Plaintiffs’ argument
that Decedent and his wife failed to understand the terms of the
Release Agreement is unavailing. See Hymel, 7 So. 3d at 1257 (“A
party represented by counsel may not defeat a written settlement
and release that is unambiguous on its face by merely alleging
that he did not understand it.”); see also Herbert, 13-0518, pp.
3-5

(La. App. 4 Cir. 5/1/13).
Plaintiffs further contend that the parties did not intend to

release claims for terminal malignant mesothelioma for $4,000—an
amount Plaintiffs characterize as a mere nuisance sum.

Louisiana

courts have reasoned that when a settlement agreement includes a
specific reference to the claim sought to be released, the actual
value a party receives for the release is inconsequential.

See

e.g., Hymel, 7 So. 3d at 1254 (“[Plaintiff] is not in a position
to argue that he traded away his whole claim for mesothelioma for
$15,000, although it would not have made any difference had he
done so as long as the record shows that he did so, as it does.”)
16

(emphasis added).

Notably, the Fourth Circuit Court of Appeal has

upheld a similar release for a much smaller sum. Herbert, 13-0518
at pp. 3-5 (finding that plaintiff released his future mesothelioma
claims for $1,500).

“It is not the province of the courts to

relieve a party of a bad bargain, no matter how harsh.” Hymel, 7
So. 3d at 1253 (citations omitted). 7 Accordingly, the Court finds
that Plaintiffs have failed to establish that Decedent and his
wife did not intend to settle future mesothelioma claims. 8
B. The Release Agreement Does Not Violate Public Policy
Plaintiffs also allege that the Release Agreement is against
public

policy

because

it

violates

La.

Civ.

Code

art.

2004.

Pursuant to La. Civ. Code art. 2004, “[a]ny clause is null that,
in advance, excludes or limits the liability of one party for
causing physical injury to the other party.”
2004.

La. Civ. Code art.

Public policy strongly favors compromise agreements and the

finality of settlements.

Brown, 630 So. 2d at 757; see Rivett v.

State Farm Fire and Casualty Co., 508 So. 2d 1356 (La. 1987); see
also Hymel, 7 So. 3d at 1256.

7

The purpose of La. Civ. Code art.

Moreover, like the court reasoned in Hymel, Plaintiffs have named sixteen

defendants in the instant suit, and could possibly recover a much larger sum
from those defendants than the $4,000 Decedent received for settling with
Defendant.
8

The above analysis is also applicable to Plaintiffs’ assertions that the

Release Agreement is null for lack of lawful cause.
17

2004 is to express the principle that it is against public policy
to permit a party to obtain a license for commission of future bad
acts.

Hymel, 7 So. 3d at 1255; see Ramirez v. Fair Grounds Corp.,

575 So. 2d 811, 812-13 (La. 1991) (holding that a release agreement
entered into four months before the alleged tortious conduct was
invalid under La. Civ. Code art. 2004).

“However, where the bad

act has already been committed the public policy is not the same
. . . [i]t is then too late to prevent the bad act . . . [i]t is
then time for another public policy to govern, the policy that
favors settlement and compromise.” Hymel, 7 So. 3d at 1255.
Here, the tortious act—Decedent’s exposure to asbestos—had
already been committed when Decedent signed the Release Agreement.
For that reason, the public policy rationale underlying La. Civ.
Code art. 2004 then shifts to one favoring settlement and is
consistent

with

how

various

courts

have

interpreted

similar

agreements that contain releases for future causes of action.

See

Hymel, 7 So. 3d at 1254; Daigle v. Clemco Indus., 613 So. 2d 619,
623-23 (La. 1993); Herbert, 13-0518, p. 2 (La. App. 4 Cir. 5/1/13).
C. The Doctrine of Contra Bonos Mores Does Not Bar the
Enforceability of the Release Agreement
Plaintiffs argue that the Release Agreement is unenforceable
as contra bonos mores because Defendant failed to establish that
Decedent and his wife were advised of the workings of the master
18

settlement agreement.

Plaintiffs contend that Decedent and his

wife never received a copy of the master settlement agreement nor
did

they

give

agreement.

informed

consent

prior

to

entering

into

said

In short, Plaintiffs attack the conduct of Decedent’s

previous counsel with respect to their handling of the group
settlement.
It is well-settled that parties are bound by their agreement
so long as such agreements are not contra bonos mores (against
good morals) or violative of some prohibitory law.

See Livingston

Roofing Co. v. E. E. Rabalais & Son, Inc., 401 So. 2d 1047, 1049
(La. Ct. App. 1981).

The Rules of Professional Conduct require an

attorney involved in a group settlement to disclose the existence
and nature of all the claims involved and obtain the informed
consent

of

settlement.

each

client

before

participating

in

Model Rules of Prof’l Coduct r. 1.8(g).

an

aggregate

To that end,

courts have imposed sanctions on attorneys that have failed to
disclose the existence of an aggregate group settlement and/or
have failed to obtain the informed consent of all plaintiffs before
finalizing the settlement.

See e.g., In re Hoffman, 2003-2499, p.

15 (La. 9/9/04), 883 So. 2d 425, 435 (imposing a deferred threemonth suspension on an attorney because he failed obtain the
informed consent of all of his clients before entering into a group
settlement); In re Ungar, 2009-0573, pp. 16-18
19

(La. 10/30/09), 25

So. 3d 101, 110 (imposing a three-year suspension on an attorney
because he intentionally withheld information from his two clients
regarding a class-action settlement).
Contrary to Plaintiffs’ contentions, Defendant has no burden
to prove that Plaintiffs’ former counsel acted responsibly and
obtained informed consent.

To the extent that Plaintiffs attempt

to rely on previous counsel’s purported violation of the Rules of
Professional

Conduct

as

a

means

to

invalidate

the

Release

Agreement, the cases cited by Plaintiffs fail to support their
proposition. See In re Hoffman, 883 So. 2d at 435 (involving an
attorney disciplinary proceeding and imposing a suspension on the
attorney); see also In re Ungar, 25 So. 3d at 110 (involving an
attorney disciplinary proceeding and imposing a suspension on the
attorney); Vidrine v. Abshire, 558 So. 2d 288, 294 (La. Ct. App.
1990) (declining to determine on the merits the enforceability of
a contract between an attorney and plaintiff found to be in
violation of Rule 1.8 of the Rules of Professional Conduct).
Plaintiffs bear the burden of proving that the Release Agreement
is invalid and Plaintiffs’ mere assertions that their former
counsel

did

not

obtain

informed

consent,

without

insufficient to invalidate the Release Agreement.

more,

is

See Jones v.

ABC Ins. Co., 11-632, pp. 11-12 (La. App. 5 Cir. 12/12/13), 130
So. 3d 35, 42 (reasoning that plaintiff’s deposition, affidavit,
20

and

deposition

testimony

of

renowned

ethics

attorney

was

sufficient to create an issue of material fact as to whether
plaintiff’s counsel obtained plaintiff’s informed consent to the
aggregate settlement).
D. The

Release

Agreement

is

Valid

Despite

the

Missing

Documents
Finally, Plaintiffs argue that the exception of res judicata
should be denied because Defendant failed to produce the complete
settlement documents; specifically: (1) page three of the Master
Settlement

Agreement,

(2)

the

Administrative

Claims

Handling

Agreement, and (3) a settlement document dated December 1, 1996. 9
Based

on

the

testimony

of

Bradley

Hiatt,

the

corporate

representative of law firm that represented Decedent during the
settlement, Plaintiffs contend that the missing documents likely
contain “comeback rights” for claimants that develop a malignancy
in the future.
should

refrain

Accordingly, Plaintiffs assert that the Court
from

granting

Defendant’s

motion

until

said

documents are produced.

9

The Settlement Check Request Form shows that Defendant purportedly paid

Decedent $4,000 in conjunction with a settlement that occurred on December 1,
1996. Plaintiffs assert that Defendant has not produced any settlement document
dated December 1, 1996.

Plaintiffs allege that the Administrative Claims

Handling Agreement may have been the document dated December 1, 1996.

Thus,

Plaintiffs allege that the Administrative Claims Handling Agreement is the
document that actually governs the terms of the settlement agreement.
21

Plaintiffs hope to show that a separate, governing settlement
agreement

between

Defendant

and

Decedent

excluded

potential

mesothelioma and wrongful death claims despite their specific
inclusion in the executed release.

“The meaning and intent of the

parties to a compromise is ordinarily determined from the four
corners of the instrument, and extrinsic evidence is inadmissible
to explain or to contradict the terms of the instrument.” Trahan
v. Coca Cola Bottling Co. United, 2004-0100, p. 15 (La. 3/2/05),
894 So. 2d 1096, 1107 (internal citations omitted); see also Hudson
v. Progressive Sec. Ins. Co., 43,857, p. 9 (La. App. 2 Cir.
12/10/08), 1 So. 3d 627, 632.

“When a dispute occurs regarding

the scope of a compromise, extrinsic evidence can be considered to
determine exactly what differences the parties intended to settle,
but absent some substantiating evidence of mistaken intent, no
reason exists to look beyond the four corners of the instrument to
ascertain the parties' intent.”

Id.; see Rein v. Luke Edwards,

LLC, 2005-754, p. 5 (La. App. 3 Cir. 2/1/06), 921 So. 2d 1158,
1162; see also Dimitri, 809 So. 2d at 486.
By its plain terms, the Release Agreement releases claims for
“all

known

or

unknown

personal

injuries,

results,

diseases,

consequences which may have resulted or may result in the future
from the contraction of
.

and

all

related

. . . asbestosis . . . mesothelioma . .
lung

diseases
22

or

respiratory

system

complications,

whether

past,

present

or

future,

without

limitation, including wrongful death and survival actions.”

As

discussed supra, the face of the Release Agreement clearly and
unequivocally
Defendant

from

establishes
all

that

liability

Decedent
concerning

intended
any

to

release

asbestos-related

claims, including any future contraction of mesothelioma.

The

Release Agreement further provides that “Releasors agree that this
[Release Agreement] shall serve as the only evidence necessary to
prove a complete compromise of all claims, and to support and prove
any obligation hereunder.”

Insofar as Plaintiffs attempt to

condition Decedent’s release of future mesothelioma claims on the
purported existence of a “comeback clause,” said clause must appear
within the four corners of the Release Agreement. Furthermore,
Plaintiffs have not identified a single case in which a plaintiff
has used a “comeback clause” to assert a subsequent mesothelioma
claim.

Although Bradley Hiatt testified that “often times the

master settlements do provide for comeback rights,” Mr. Hiatt was
not involved in the negotiations of the settlement and has no
personal knowledge of any master settlement affecting Plaintiffs’
claims against Defendant.

Mr. Hiatt’s speculative testimony,

devoid of any specific facts regarding the Release Agreement at
issue, is insufficient to overcome the express and unambiguous
language contained therein.
23

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Re-urge
Exception of Res Judicata (Rec. Doc. 161) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Dismiss
Owens-Illinois’ Exception of Res Judicata (Rec. Doc. 165) is DENIED
AS MOOT.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to
File Sur-Reply (Rec. Doc. 195) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Seal Document
(Rec. Doc. 196) is DENIED AS MOOT.
New Orleans, Louisiana, this 12th day of October, 2017.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

24