DocketNumber: No. 13-CA-9
Citation Numbers: 123 So. 3d 731
Judges: Chehardy, Johnson, Liljeberg
Filed Date: 5/23/2013
Status: Precedential
Modified Date: 8/21/2021
UOn November 8, 2011, plaintiffs, surviving spouse and children of Catherine Cook, filed a survival and wrongful death action, seeking damages against multiple defendants, including the insurers of Hunt
LAW & DISCUSSION
Jurisprudence is well-settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751; Nuccio v. Robert, 99-1327 (La.App. 5 Cir. 4/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544.
Effective August 15, 2012, La. C.C.P. art. 966, as amended by Acts 2012, No. 257, § 1, and Acts 2012, No. 741, § 1, provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law.”
Therefore, as amended, La. C.C.P. art. 966 requires only evidence formally introduced and admitted into evidence at the hearing on summary judgment to be considered by the trial court. Evidence, although attached to the motion or filed into the record, shall not be considered by the trial court unless properly admitted at the hearing under the rules of evidence.
|sAt the hearing on summary judgment, defendants/ movants averred that plaintiffs could not carry their burden of proof at trial, namely that Ms. Cook was exposed to asbestos from Hunt Tool Company. Specifically, defendants pointed to an absence of factual support that Hunt Tool Company provided Ms. Cook’s father with an asbestos vest and gloves.
Here, plaintiffs attached deposition testimony of Ms. Cook and her two brothers, Leonee, Jr. and Patrick Wagues-paek, as well as expert deposition testimony and photographs in support of their claim that Hunt Tool Company exposed Ms. Cook to asbestos via her father’s clothing. Notwithstanding, on appeal, our de novo review of the motion for summary judgment cannot include consideration of the deposition testimony or photographs attached to the motion for summary judgment or its opposition, but not admitted into evidence. Therefore, without any evidence to support the plaintiffs’ claim that Hunt Tool Company provided Ms. Cook’s father with an asbestos vest and gloves, we cannot find that | nthere is a genuine issue of material fact as to Hunt Tool Company’s contribution of asbestos exposure to Catherine Cook. Accordingly, we affirm the summary judgment in favor of defendants.
DECREE
Considering the foregoing, summary judgment granted in favor of defendants, One Beacon America, United States Fidelity and Guaranty Company, The Standard Fire Insurance Company and Travelers Casualty and Surety Company, is affirmed.
AFFIRMED
. In addition to exposure from Hunt Tool Company, appellants allege in brief that Catherine Cook contracted mesothelioma from a combination of contributing household and neighborhood exposure to asbestos, including household exposure from Ms. Cook's first husband's work at Celotex and Ms. Cook's residing and growing up on the Westbank of Jefferson Parish related to Johns-Manville operations, emissions and scrap metal.
. Acts 2012, No. 257, § 1 removed the words “on file” from Section B, subsection 2 of Article 966.