     Case: 09-30422     Document: 00511144662          Page: 1    Date Filed: 06/17/2010




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

                                                  FILED
                                                                            June 17, 2010

                                       No. 09-30422                         Lyle W. Cayce
                                                                                 Clerk

BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, L.L.C.;
FIRESTONE POLYMERS, L.L.C.,

                                                   Plaintiffs-Appellants
v.

LIBERTY MUTUAL INSURANCE CO; INSURANCE COMPANY OF
NORTH AMERICA; PACIFIC EMPLOYERS INSURANCE CO,

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                   2:08-CV-151


Before HIGGINBOTHAM, DAVIS and BENAVIDES, Circuit Judges.
PER CURIAM:*
        In this case we consider whether injuries related to hearing loss caused by
long term exposure to noise in plaintiff’s plant resulted from an “accident” as
defined in the defendants’ respective policies. For the following reasons, we now
agree with the district court that the hearing loss of the plaintiff’s employees did
not result from an accident and AFFIRM the judgment of the district court.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-30422



                                        I.
      In February of 1998, a number of former employees of Bridgestone
Firestone (“Firestone”) filed a tort suit (hereinafter the Blackwell suit) against
Firestone for damages related to hearing loss which allegedly arose from
exposure to loud noise in the plant where they worked throughout the course of
their employment. In their complaint, the Blackwell plaintiffs did not point to
one specific event which caused their injuries, only stating that their lawsuit was
filed within one year of discovering that they had experienced hearing loss.
      Firestone settled the Blackwell plaintiffs’ claims then filed suit against
three of its Worker’s Compensation (“WC”) / Employer Liability (“EL”) insurers,
Liberty Mutual Insurance Company (“Liberty Mutual”), Pacific Employer
Insurance Company (“Pacific”), and Insurance Company of North American
(“INA”) (collectively “Defendants”), claiming its insurers failed to honor their
defense and indemnity obligations under their respective policies. Firestone
sought a judgment declaring that the defendants owed coverage for the damages
arising from the tort action brought by the Blackwell plaintiffs. Defendants
countered that they properly denied coverage for the Blackwell claims because
hearing loss was not an “accident” under their policies but a “disease” and that
their Employer Liability policies clearly excluded coverage for “bodily injury by
disease” claims not brought within thirty-six months of the end of the policy
period. Liberty Mutual’s policy with Firestone terminated in 1976, while Pacific
and INA’s policy terminated in 1982. The plaintiffs who asserted claims for
which Firestone sought coverage against the defendant insurers were employed
from various times between 1944 and 2005.
      Firestone moved for partial summary judgment against INA and Pacific.
Firestone argued that there were no material issues of fact with regard to
coverage under the policies. Firestone further asserted that the question of

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whether the Blackwell plaintiffs’ claims constituted claims for “bodily injury by
accident” or “bodily injury by disease” was a legal issue to be determined based
on the policies themselves and the claims asserted in the Blackwell petition. The
district court denied Firestone’s motion, holding that under this court’s decision
in Riverwood Int’l Corp. v. Employer’s Ins. of Wasau, 420 F.3d 378 (5th Cir.
2005), the Blackwell plaintiffs’ hearing loss was a “bodily injury by disease” and
therefore defendants’ policies provided no coverage. Following this ruling,
defendants filed a motion for summary judgment seeking dismissal of Firestone’s
claims. This time Firestone offered a different theory of coverage than it had on
partial summary judgment, now arguing that extrinsic evidence was required
to interpret the policies; accordingly, Firestone sought to introduce affidavits by
medical experts on the effects of hearing loss. Restating the reasons given in
denying Firestone’s motion for partial summary judgment, the court granted
summary judgment to the defendants. Firestone timely appealed.
                                        II.
                                        A.
      The district court’s ruling on summary judgment is reviewed de novo. Am.
Int’l. Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 259–60 (5th Cir.
2003). A district court’s interpretation of an insurance policy is also reviewed
de novo. Id. at 260. Summary judgment is properly granted only when, viewing
the evidence in the light most favorable to the non-moving party, the record
indicates that there is no genuine issues as to any material fact, and that the
moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
                                        B.
      On appeal, Firestone argues that the district court incorrectly interpreted
the insurance policy when it found that the Blackwell plaintiffs’ hearing loss was
not an “accident” under defendants’ respective policies.

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      Under Louisiana law, general principles of contract interpretation apply
to the interpretation of insurance policies and an insurance policy is the law
between the parties. Succession of Fannaly v. Lafayette Ins. Co., 805 So.2d 1134,
1137 (La. 2002). When the words of a contract are clear, explicit, and lead to no
absurd consequences, the court need not look beyond the contract language to
determine the true intent of the parties.      L A. C IV. C ODE art. 2046.    Each
provision in a contract must be interpreted in light of the other provisions so
that each is given the meaning suggested by the contract as a whole. L A C IV.
C ODE art. 2050. In addition, words susceptible of different meanings must be
interpreted as having the meaning that best conforms to the object of the
contract. L A. C IV. C ODE art. 2048.
      The three insurance policies at issue in this case are essentially identical.
The policies provide coverage under two classifications: Coverage A–Worker’s
Compensation, provides coverage for compensation or other benefits under
worker’s compensation law required to be paid by the employer and Coverage
B–Employer’s Liability, provides coverage for damages the employer shall
become legally obligated to pay “because of bodily injury by accident or disease
to an employee of the insured arising out of and in the course and scope of the
employment of the insured, subject to exclusions in the policies.” In a tort action
for employee injury under Coverage B, the policies provide coverage to the
employer for injury to its employees arising


      (1) by accident occurring during the policy period, or (2) by disease
      caused or aggravated by exposure of which the last day of the last
      exposure, in the employment of the insured, to conditions causing
      the disease occurs during the policy period.


Bodily injury by accident and bodily injury by disease are defined in the policies:




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      V.    DEFINITIONS (c) Bodily Injury By Accident; Bodily
            Injury By Disease. The contraction of disease is not an
            accident within the meaning of the word “accident” in the
            term “bodily injury by accident” and only such disease as
            results directly from a bodily injury by accident is included
            within the term “bodily injury by accident.” The term “bodily
            injury by disease” includes only such disease as is not
            included within the term “bodily injury by accident.”


Finally, the policies specifically exclude any bodily injury by disease claim not
made within thirty-six months of the policy’s expiration,


      This policy does not apply . . . . Under Coverage B, to 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.


      Since the Blackwell suit was brought more than thirty-six months after
defendants’ policies terminated, the exclusion of coverage for a “bodily injury
from disease” is triggered. Therefore, coverage under defendants’ policies is
only available to Firestone if the Blackwell plaintiffs’ alleged hearing loss can be
characterized as a “bodily injury by accident.” In finding that the injury at issue
in the Blackwell suit was not an “accident” but a “disease,” the district court
relied on our decision in Riverwood Int’l Corp. v. Employers Ins. of Wasau, 420
F.3d 378 (5th Cir. 2005).
      In Riverwood, employer Riverwood purchased a series of excess Workers’
Compensation and Employers’ Liability policies from Wasau Insurance
Company. The policies provided coverage from 1974 to 1984. In early 2000, a
group of employees sued Riverwood, seeking damages for asbestosis and other
asbestos-related diseases, allegedly caused by exposure to asbestos while
working at Riverwood’s paperboard manufacturing facility. Riverwood sent


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notice letters to its multiple insurers, advising them of the claims. Wasau
denied coverage based on an exclusion in the policy which provided that “bodily
injury by disease” claims were excluded from coverage if not brought within
thirty-six months after the end of the policy period.
       Riverwood argued that the policy was ambiguous because it did not define
the word “accident.” Addressing this argument, the Riverwood court maintained
that since the policy’s purpose was to provide workers’ compensation and
employers’ liability insurance, it should apply the definition of “accident” from
Louisiana’s workers’ compensation statute to the policy. Under the statute,
“accident” is defined as “an unexpected or unforeseen actual, identifiable,
precipitous event happening suddenly or violently, with or without human fault,
and directly producing at the time objective findings of an injury which is more
than simply a gradual deterioration or progressive degeneration.” See L A. R EV.
S TAT. § 23:1021(1). This definition, the court found, suggested
       [T]hat an asbestos-related disease cannot be considered an
       “accident” since exposure to asbestos is normally not violent and
       does not, at the time of exposure, produce objective findings of an
       injury. Rather, an asbestos-related disease has a long latency
       period and normally manifests itself after continued exposure.


Riverwood, 420 F.3d at 383.1


       1
         Riverwood also argued that the contract was ambiguous since the policy stated that
“bodily injury by disease” could constitute a “bodily injury by accident,” if it results from a
“bodily injury by accident.” The court rejected this claim:

       According to the Policies, coverage for a "bodily injury by disease" claim is triggered if
       the last exposure occurred during the policy period and the claim is asserted within
       thirty-six months of the policy's expiration. Since an exposure is required to trigger
       coverage for a "bodily injury by disease" claim, a disease caused by an exposure should
       be considered a "bodily injury by disease." If an exposure equates to an accident, then
       a claim resulting from an exposure could be considered a "bodily injury by accident"
       claim. To interpret the Policies in this way would render the provision providing for
       "bodily injury by disease" claims (and the provision providing that disease claims are
       triggered by an exposure during the policy period) superfluous. Indeed, the Louisiana

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       In the case before us, both the language of the insurance policies and the
nature of the underlying claims against the insured are indistinguishable from
those in Riverwood. Guided by Riverwood, we apply the definition of “accident”
from the Louisiana worker’s compensation statute to the Blackwell plaintiffs’
petition. In their petition, the Blackwell plaintiffs alleged that their hearing loss
resulted from exposure to the loud noises associated with their employment:


       Plaintiff was employed by Bridgestone/Firestone . . . in Calcasieu
       Parish, Louisiana during the years 1946-1983. In the course of
       plaintiff’s work at Firestone, he was occupationally exposed to
       unreasonably loud noise. As a result of plaintiff’s work at Firestone
       and his unreasonable exposure to the noise, plaintiff has suffered
       hearing loss.


Blackwell Petition for Damages, ¶¶ 2–4. On appeal, Firestone argues that under
the definition of “accident” applicable at the time the workers were exposed to
the loud noise–but long before their injuries were manifest–the Blackwell
plaintiffs’ hearing loss as alleged in the 1997 petition would have been deemed
an “accident.” When Firestone entered into the insurance contracts with
defendants, the worker’s compensation statute defined “accident” as “an
unexpected or unforeseen event happening suddenly or violently with or without
human fault and producing at the time objective symptoms of an injury.” L A.
R EV. S TAT. § 23.1021(1) (1975).2



       First Circuit Court of Appeal has recognized that "to find that disease that results from
       accidental contact with a foreign body, such as an asbestosis fiber, is bodily injury by
       accident would be to subsume the definition of bodily injury by accident."

Id. at 384 (emphasis in original) (interior citation omitted). Firestone makes this same
argument on appeal, and for the same reasons we expressed in Riverwood, we find Firestone’s
argument unavailing.
       2
         In 1989, the Louisiana legislature revised the definition of “accident” under the
worker’s compensation statute to “an unexpected or unforeseen actual, identifiable, precipitous

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       Prior to the 1989 revision of L A. R EV. S TAT. § 23.1021, Louisiana courts
gave varied interpretations to the meaning of “accident” as it applied to worker
injuries. One line of cases makes it clear that where an injury such as a heart
attack or stroke occurs and the manifestation of that injury is sudden or violent,
then that sudden manifestation–even if it was the culmination of a slowly
developing malady–would be an “accident” under the worker’s compensation
statute. The Louisiana Supreme Court’s decision in Ferguson v. HDE, Inc., 270
So.2d 867 (La. 1972) is an example of this interpretation. In Ferguson, an
employee received a pay check that was lower than he expected, after which he
became angry and went to argue about the amount to his employer. While
arguing with his employer, the employee felt a flash of pain followed by
paralysis. Although an argument with his employer was not in and of itself “a
violent or sudden event,” the Ferguson court found that the employee had
suffered an injury from an accident, stating, “Although he received no blow or
trauma . . . . the injury was accidental because it was unexpected and
unforeseen.     It happened suddenly and violently.               It produced at the time
objective symptoms of an injury.” Id. at 869.3


event happening suddenly or violently, with or without human fault, and directly producing
at the time objective findings of an injury which is more than simply a gradual deterioration
or progressive degeneration.” LA . REV . STAT . § 23.1021(1) (1989). Although the policies at
issue in Riverwood were perfected (and terminated) before the definition was changed, the
Riverwood court cited to the revised definition of “accident” in holding that the asbestos claims
were not accidents. Riverwood, 420 F.3d at 383. Nevertheless, the court’s application of the
revised definition to plaintiffs’ asbestosis claims makes clear that those injuries would have
been “accidents” under the pre-revision definition as well: “This definition [of accident]
suggests that an asbestos-related disease cannot be considered an “accident” since exposure
to asbestosis normally is not violent and does not, at the time of exposure, produce objective
findings of an injury. Rather, an asbestos-related disease has a long latency period and
normally manifests itself after continued exposure.” Id. (emphasis added). Similarly, in this
case, we find that the hearing loss as alleged in the Blackwell petition would not have been
an “accident” under either definition.
       3
        The required “injury by accident” has thus been found to have occurred in instances
of heart attack, see, e.g., Guidry v. Sline Indus. Painters, Inc., 418 So.2d 626 (La. 1982);

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       A second line of cases suggests that when an employee is exposed to work
conditions which either aggravate a pre-existing condition or cause a
symptomatic degeneration in the employee’s health, and a distinct event occurs
where the symptoms become disabling, then this may also be characterized as
an “accident.” In Parks v. Insurance Company of North America, 340 So.2d 276
(La 1976), the employee was a seamstress who was bothered by conditions of the
factory where she worked. After working for four months, plaintiff started to
experience a sore throat, running nose, and nagging cough. Shortly after these
symptoms presented, plaintiff lost weight and contracted a fever. Days later,
she was hospitalized with chronic bronchitis and sought worker’s compensation
benefits from her employer. The court found that although the seamstress could
not point to one event which had precipitated those acute symptoms requiring
hospitalization, she had in fact suffered an “accident.” Relying on Ferguson v.
HDE, the court stated,
       We have held that extraordinary physical stress and strain is not
       essential to the definition of disabling accident: when the
       performance of the usual and customary duties of a workman cause
       or contribute to a physical breakdown, the statutory requirements
       for an accidental injury are present. . . . We are satisfied therefore,
       that the acute illness suffered by plaintiff in the instant case
       constitutes an “accident” as that term is defined in the
       compensation act and interpreted in our jurisprudence.


Id. at 281 (citation omitted) (emphasis added). To find an accident under these
terms, the vast majority of the Louisiana appellate courts at least require some



cerebral hemorrhage, see, e.g., Griffin v. Employers’ Liability Ins. Co., 186 So.2d 349 (La. App.
4th Cir. 1966); hernia, see, e.g., Hill v. J.B. Beaird Corp., 19 So.2d 295 (La. App. 2nd Cir.
1944); abscessed lung, see, e.g., Stiles v. International Paper Co., 39 So.2d 635 (La. App. 2nd
Cir. 1949); spontaneous pneumothorax, see, e.g., Dortch v. Louisiana Central Lumber Co., 30
So.2d 792 (La. App. 2nd Cir. 1947); ruptured intervertebral disc, see, e.g., Williams v. Harris,
77 So.2d 744 (La. App. 1st Cir. 1955). See also H. Alston Johnson, LO UISIANA CIVIL LAW
TREATISE WORKERS ’ COM PENSATION LAW AND PRACTICE § 215,

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identifiable event or incident within the policy term where the employee can
demonstrate a palpable injury. We read Riverwood as consistent with this
                                4
interpretation of the law.

       4
          See also, Chism v. Kaiser Aluminum and Chemical Corp., 332 So.2d 784 (La. 1976)
(plaintiff received a series of occupational injuries for which he sought medical care; after
returning to work and performing same strenuous duties, the pain became so severe that he
was hospitalized with a herniated disc; characterized as “accident:”) Lum v. Employer's Mut.
Lia. Ins. Co. of Wis., 216 So.2d 889 (La. App. 2nd Cir. 1968) (plaintiff's job required him to
stuff giblets into frozen chickens; plaintiff suffered from pre-existing arthritis; court found he
suffered "accident" because on one occasion while stuffing chicken plaintiff felt a sudden
"popping" of wrist); Romero v. Otis International, 343 So.2d 405, 409 (La. App. 3rd Cir. 1977)
(hearing loss when working with air hammer was an “accident” because, “a part of [plaintiff’s]
body, his inner ear, suddenly gave way while he was discharging his usual and customary
duties”); Hall v. Georgia-Pacific Corp., 390 So.2d 948 (La. App. 2nd Cir. 1980) ("accident"
when plaintiff with pre-existing automobile injury worked in lumber mill and experienced a
"sudden popping in his shoulder in the course of working with the plywood"); Harper v. Kast
Metals Corp., 397 So.2d 529 (La. App. 2nd Cir. 1981) (plaintiff with pre-existing arthritis
whose employment left him with sore wrists testified that on a specific date, he twisted one
of his wrists; found to be an “accident”); Melder v. Century Telephone Enterprises, Inc., 413
So.2d 1325, 1328 (La. App. 3rd Cir. 1982) (worker with pre-existing back condition was
aggravated by the demands of the job such that worker’s ultimate injury–a herniated disc–was
deemed an “accident”). In one instance, a Louisiana court suggested that the definition of
“accident” did not require a final conclusory event; however, this interpretation was dependant
on a worker injury caused by the aggravation of a pre-existing condition. McCoy v. Kroger Co.,
431 So.2d 824, 827 (La. App. 2nd Cir. 1983) (“In our view the current jurisprudential definition
is such that an “accident” has occurred within the meaning of the compensation act when the
conditions of employment provide continual strain or trauma, as here, or exposure, as in
Parks, and these events cumulatively combine to aggravate a pre-existing condition so as to
disable the employee.”)
        In its Reply Brief, Firestone cites two cases Quine v. Ideal Cement Co., 351 So. 2d 1303
(La. App. 1st Cir. 1977) and Chatelain v. American Can Co., 344 So.2d 1180 (La App. 4th Cir.
1977), which purportedly show that hearing loss was an injury by “accident” under the pre-
1989 statute; however, we are not persuaded that these cases are instructive in determining
whether the claims at issue in this case arise from “accidents.”
        In Quine v. Ideal Cement Co., the court of appeals dismissed a worker’s claim for
compensation benefits. The employee in Quine had complained of hearing loss for four years
and sought medical treatment before his hearing loss prevented him from performing his
duties. Although setting forth the analysis related to the definition of “accident” under the
worker’s compensation statute, the first circuit focused on the plaintiff’s failure to show that
his hearing loss was caused by the conditions of his employment and not caused by Meniere’s
disease.
        In Chatelain v. American Can Co., plaintiff alleged that the loud noises associated with
his employment forced him to request a change in position with his employer, after which he
sought permanent disability. The district court found that the plaintiff did not allege an
accident. The court of appeals, stated that “we agree with appellant that extraordinary

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       The Blackwell plaintiffs do not allege any such event. According to the
petition, their hearing was affected by the prolonged exposure to loud noises
associated with their employment; no sudden manifestation of hearing loss is
alleged. Furthermore, the Blackwell petition filed in February of 1998 alleges
that plaintiffs discovered their injuries at the earliest in February of 1997.
Blackwell Petition for Damages, ¶ 12. We found no cases where Louisiana
courts characterized an injury as resulting from an “accident” within the policy
period when the only “event” occurring during a policy period was general
exposure and the “injury” was not discovered until many years after the policy
had terminated.        In this case, over fourteen years elapsed from the time
defendants’ policies terminated and the Blackwell plaintiffs discovered their
injury. These facts belie any possibility that an “accident occurred during the
policy period.”
       Because it is undisputed that the Blackwell claims were brought long after
the thirty-six month period expired for seeking recovery for “bodily injury by
disease,” defendants’ policies clearly and unambiguously excluded coverage to
Firestone for the injuries alleged in the Blackwell suit.5



physical stress and strain is not essential to the definition of disabling accident. . . . the real
issue before us is whether the plaintiff sustained his burden of proof of causation of the
hearing loss.” Id. at 1182–83. Finding that the plaintiff failed to prove causation, the fourth
circuit affirmed the district court’s dismissal of plaintiff’s claim.
        Along with the fact that the employees’ claims for compensation were dismissed by the
courts of appeal, both Quine and Chatelain concerned a hearing loss injury that created a
conclusive and final event: the inability of the worker to perform his duties. See Quine, 351
So.2d at 1304 (“On May 22, 1974, plainitff was unable to continue his work”); Chatelain, 344
So.2d at 1181 (requested a change of positions because of hearing loss on May 5, 1975). In this
case, the Blackwell petition–insofar as it concerns exposure during defendants’ policy periods–
makes clear that the employees’ alleged injuries did not lead to a sudden breakdown or force
the employees to cease working; instead, the injuries were not discovered until many years
after the defendants’ policies were terminated.
       5
          Firestone raises two additional issues on appeal: 1) that the district court erred in
failing to consider extrinsic evidence to interpret the policies and 2) that the insurers breached
their duty to defend Firestone from the underlying Blackwell claims. Both of these claims,

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                                             III.
       For the foregoing reasons, the district court’s judgment is AFFIRMED.
       AFFIRMED




however, are based on Firestone’s erroneous premise that defendants’ policies were
ambiguous.
        With respect to Firestone’s first claim, under Louisiana law, the meaning and intent
of parties to a written instrument are determined from the instrument’s four corners. Abshire
v. Vermillion Parish School Bd., 848 So. 2d 552, 555 (La. 2003). If the meaning of the
instrument is clear, extrinsic evidence is inadmissible either to explain or to contradict the
instrument’s terms. Id. For the reasons expressed above, the language in defendants’ policies
is clear and unambiguous; therefore, the district court did not err when it refused to consider
the extrinsic evidence proffered by Firestone.
        With respect to defendants’ duty to defend, under Louisiana law, an insurer’s duty to
defend suits brought against its insured is determined by the allegations of the plaintiffs’
petition. If assuming the allegations of the petition to be true, there would be both coverage
under the policy and liability to the plaintiff, the insurer must defend the insured regardless
of the outcome of the suit. American Home Assur. Co. v. Czarniecki, 230 So.2d 253, 269 (La.
1970). In this case, the unambiguous policy language coupled with the allegations of the
Blackwell petition make clear that the defendants had no duty to defend Firestone.


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