Triche v. CF Industries, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 21, 2003

Charles R. Fulbruge III
No. 03-30034 Clerk
Summary Calendar

JAMES H. TRICHE; TERRY R. TRICHE,

Plaintiffs-Appellants,

versus

CF INDUSTRIES, INC.,

Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of Louisiana
(01-CV-301-D-M3)

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

At issue is a summary judgment awarded CF Industries,

dismissing tort claims for James Triche’s claimed gradual hearing

loss. Such judgment is reviewed de novo, “examining the evidence

in the light most favorable to ... the nonmovant[s]”. Duckett v.

City of Cedar Park, Tex., 950 F.2d 272, 276 (5th Cir. 1992). The

judgment is proper when, viewing the evidence in this light, “there

is no genuine issue as to any material fact and ... the moving

party is entitled to judgment as a matter of law”. Amburgey v.

*
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this opinion should not be published and is not precedent except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.
Corhart Refractories Corp. Inc., 936 F.2d 805, 809 (5th Cir. 1991)

(quoting Fed. R. Civ. P. 56(c)).

Pursuant to our review of the briefs and record, summary

judgment, based on prescription, was proper. Contrary to

appellants’ contention, the continuing tort doctrine does not save

their claim. Their contention that James Triche continued to be

exposed to excessive noise after his transfer to a warehouse

position in 1996 (this action was not filed until 2001) is

supported only by conclusory statements in Triche’s own affidavit.

See, e.g., Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.),

cert. denied, 506 U.S. 825 (1992) (conclusory allegations not

sufficient to defeat claim for summary judgment).

Because summary judgment, based on prescription, was proper,

we need not reach CF Industries’ alternate basis for summary

judgment (claims barred by exclusivity provisions of Louisiana

Workers’ Compensation Act).

AFFIRMED

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