CLARK v. DIXIE CARRIERS INC (2023)

Plaintiff, Millard Clark,¹ filed suit, seeking damages from carcinogenic exposure, which caused lung cancer, while working as a Jones Act seaman for Kirby Inland Marine, LP. Kirby claimed indemnity and/or contribution from Settoon Towing LLC, as a third-party defendant.

Settoon filed a Motion for Summary Judgment contending that there was no evidence that Mr. Clark was exposed to carcinogens while working with Settoon and that Settoon did not substantially cause or contribute to Mr. Clark's lung cancer. The trial court granted Settoon's Motion for Summary Judgment, dismissing Kirby's claims with prejudice.

Kirby filed a Motion for Appeal and the appeal was lodged in January 2023. On appeal, Kirby raised the following two assignments of error:

1. Whether the trial court properly granted Settoon's Motion for Summary Judgment, seeking a dismissal of Kirby's Third-Party Demand, given that conflicting testimony and evidence existed regarding Settoon's fault for plaintiff, Millard Clark's development of lung cancer; and

2. Whether a Motion for Summary Judgment may be granted based upon a witness’ attempt to retract sworn testimony he previously provided.

Once the briefing schedule was completed and the matter docketed, Settoon filed an Unopposed Motion to Dismiss Appeal. The motion provided that “Settoon and Kirby advise the Court that all matters are resolved and they wish the Court to dismiss the appeal and remove the oral argument and matter from the docket.” Settoon attached an e-mail from Kirby stating: “As discussed, please proceed with filing an unopposed motion to dismiss the appeal. Thanks, Patrick.”

Accordingly, the Unopposed Motion to Dismiss Appeal is granted.

APPEAL DISMISSED

FOOTNOTES

1.   During the pendency of the litigation, Mr. Clark passed away and family members were substituted as party plaintiffs.

Chief Judge Terri F. Love