           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         November 7, 2008

                                       No. 07-31175                   Charles R. Fulbruge III
                                                                              Clerk

MARK DELAHOUSSAYE; AUDIE PRADOS

                                                  Plaintiffs-Appellants
v.

MORTON INTERNATIONAL INC; ORICA USA INC, doing business as
Orica Mining Services; ORICA BRASIL LTDA

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:07-CV-944


Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiffs Mark delaHoussaye and Audie Prados appeal from the district
court’s grant of judgment on the pleadings under FED. R. CIV. P. 12(c) in favor
of defendant Morton International, Inc. The district court determined that the
plaintiffs’ claims against Morton were barred by the exclusivity provision of the
Louisiana Workers’ Compensation Act and entered a final judgment pursuant
to FED. R. CIV. P. 54(b). We AFFIRM for the following reasons.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                           No. 07-31175

1. The crux of plaintiffs’ appeal is whether the complaint adequately set
forth the intentional act exception to workers’ compensation exclusivity.
See LA. REV. STAT. 23:1032(A)(1) & (B). The plaintiffs contend that the
complaint set forth such a claim because they alleged that Morton’s
procedures for handling misfires were contrary to safety regulations and
that Morton knew the procedures were substantially certain to result in
injury. The intentional act exception is narrowly construed, Reeves v.
Structural Pres. Sys., 731 So. 2d 208, 211 (La. 1999), and Louisiana courts
have recognized that “mere knowledge and appreciation of a risk does not
constitute intent; reckless or wanton conduct, gross negligence, disregard
of safety regulation or the failure to use safety equipment by an employer
does not constitute intentional wrongdoing.” Micele v. CPC of La., Inc.,
709 So.2d 1065, 1068 (La. Ct. App. 1998). The complaint here included
allegations that the explosion occurred in a manner not contemplated by
Morton, that the defendant presumed that misfires were inert and could
not be exploded except by planned detonation or the equivalent of a
hammer blow, and that Morton knew its procedures would result in the
“likelihood” of a misfire detonation and a subsequent injury “at some
point” or “eventually.” There were no allegations that the defendant had
ever been cited for safety violations or that other workers had previously
been injured. The plaintiffs’ complaint sets out an appreciation of a risk
of injury and at most alleges gross negligence. Thus, the district court did
not err. See, e.g., Reeves, 731 So. 2d at 212 (“[G]ross negligence does not
meet the intentional act requirement.”).
2. The plaintiffs contend that Morton’s denial of the allegations in the
complaint and assertion of affirmative defenses created material fact
issues precluding a judgment under Rule 12(c). Based in part on affidavits
from purported “lay experts,” they also argue that the district court should

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                                No. 07-31175

    have converted the Rule 12(c) motion into a motion for summary judgment
    and delayed ruling until they had an opportunity to complete discovery.
    We disagree with these contentions. Even accepting the plaintiffs’ factual
    allegations as true for purposes of the Rule 12 motion, see Guidry v. Am.
    Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007), we have already
    concluded that the plaintiffs’ complaint failed to show that their claims
    were not barred by state workers’ compensation law. The affidavits
    merely repeat the factual allegations of the complaint, and we see no
    abuse of discretion by the district court.
    3. Finally, we find no merit to the plaintiffs’ argument that the district
    court failed to provide sufficient reasons for its decision.
AFFIRMED.




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