Fifth Circuit Court of Appeals Looks to Louisiana State Law to Guide Resoltion of Insurance Coverage Dispute in Workplace Injury Case

Previously on the Insurance Dispute blog, we have reviewed cases where the court analyzied various policy provisions that are intended to limit the scope of the insurer’s coverage. One recent example was a clause in a hazard insurance policy that limited the insurer’s responsibility for certain economic damages that resulted from a covered loss. Coverage limitations are common features in other types of policies, as well. For instance, a workers compensation insurance policy will typically include provisions that define the type of injuries that fall under the policy and specify the timeframe in which claims must be made. The recent case of Continental Holdings, Inc. v. Liberty Mutual Insurance Co. offers an example of a court’s analysis of such a provision. Continental Holdings purchased a Workers Compensation/Employers’ Liability Policy from Liberty Mutual on October 1, 1964. The policy’s term ended on July 1, 1973. It covered two kinds of work-related injuries: bodily injury “by accident,” and bodily injury “by disease.” The policy specifically excluded coverage for claims of “bodily injury by disease unless prior to thirty-six months after the end of the policy period written claim is made or suit is brought against the insured for damages because of such injury or death resulting therefrom.” In 2009, a group of former employees, certified as a class, sued Continental for hearing loss caused by their long-term exposure to industrial noise while working for the company. In their complaint, the employees alleged that the hearing loss “was painless, and occurred gradually over a long period of time as a result of their continuous long term exposure to hazardous industrial noise at [Continental’s] facility.” Continental filed suit against Liberty Mutual seeking indemnity for the employees’ claims in the hearing loss suit, arguing that the policy purchased in 1964 covered the workers’ hearing loss. Liberty Mutual filed a motion for summary judgment asserting that it was not required to indemnify Continental because noise-induced hearing-loss was not an “accident” and therefore was subject to the 36-month exclusion under the policy. The district court granted Liberty Mutual’s motion, and Continental appealed.

The U.S. Court of Appeals for the Fifth Circuit relied on Louisiana law to guide its analysis. At the time the policy was taken out, the Louisiana Worker’s Compensation Act (“LWCA”) was in effect and was incorporated by reference in the policy. The LWCA included the following definition of “accident”: “an unexpected or unforeseen event happening suddenly or violently with or without human fault and producing at the time objective symptoms of an injury.” Continental asserted that the industrial noise the workers were exposed to created an “objective injury” and therefore fell under Louisiana’s then-existing statutory definition of “accident.” It backed up its position with the affidavit of Dr. Robert Dobie, which explained that noise-induced hearing loss can be measured at the moment a noise is heard through an audiogram test. The court noted, however, that “the vast majority of Louisiana cases,” including one that held “gradual hearing loss resulting from occupational noise exposure … cannot meet the definition of an ‘accident’ under any version of the LWCA,” reach[es] a contrary conclusion.” The court observed that the Continental workers did not claim that a single event caused their hearing loss. Nor did they experience any symptoms during the period of time that the Liberty Mutual policy was in effect. These facts were contrary to the court’s own prior holding that Louisiana’s definition of “accident” requires “at least … some identifiable event or incident within the policy term where the employee can demonstrate a palpable injury.” By way of example, the court recalled a case that involved “a sudden, acute, and identifiable injury during the period of employment.” The employee-plaintiff complained of ear pain immediately after exposure to noise, requested and was denied a transfer, and then over the course of a few months experienced nearly total deafness. The court concluded, therefore, that the gradual, noise-induced hearing loss that the Continental workers suffered was “not an ‘accident’ under the LWCA.” Therefore, the court affirmed the district court’s finding that the workers’ injuries must be classified as “bodily injury by disease,” thus triggering the 36-month exclusion.

It is important to note that the Fifth Circuit’s decision did not necessarily create a negative outcome for the workers themselves. Indeed, their suit (filed in state court) was merely put on hold until the conclusion of this action, which only served to determine that Liberty Mutual would not be responsible for any damages due the workers if they ultimately prevailed against Continental.

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