Articles Posted in Class Action

oil-power-1182675-1-1024x768Waiting until the last minute to do almost anything is not recommended but it is especially true if you are seeking to bring a claim for damages. That is what some fishermen found out when they sought to bring claims under the Oil Pollution Act of 1990 (OPA) for damages that resulted from an oil spill.  The oil spill came from a barge owned by American Commercial Airlines, LLC (ACL) that had been involved in a collision on the Mississippi River in the Port of New Orleans on July 23, 2008.

On July 25, 2011, the fishermen claimants filed an action against ACL in the United States District Court for the Eastern District of Louisiana.  The district court denied ACL’s motion for summary judgment but certified to the United States Court of Appeals for the Fifth Circuit two issues of law regarding the requirements for proceeding under OPA.  One issue was whether the claimants met the requirements when they did not personally sign the claim forms and did not provide specific requested items in support of their claims. The other issue was whether the claimants had to make a proper presentment at least 90 days before the three year limitation period ran out.  The first issue pertained to all claimants but the second issue involved only those claimants who first presented their claims on or after July 22, 2011, because those claimants had not waited the 90 days after first presenting their claims to file an action in order to not be barred by the three year limitation period.

Individuals and entities harmed by an oil spill may file claims for damages under OPA.  To promote settlement and avoid litigation, there are specific procedures under OPA that claimants must follow.  See  Johnson v. Colonial Pipeline Co. , 830 F. Supp. 309 (E.D. Va. 1993).  Under OPA’s presentment requirement, claimants must first present their claims to the responsible party and then wait until that party denies all liability or until 90 days from the time of presentment have passed before filing an action against that party.  See OPA, 33 U.S.C. § 2713 (2016).

oil-refinery-1239476-1024x683In the midst of a very active hurricane season, it is important to remember that Louisiana is no stranger to this type of inevitable damage. However, the dangers involved in disaster clean-up efforts are often forgotten, and far too often people who aid in these efforts aren’t compensated fairly when things turn awry. A recent lawsuit helped linemen who faced similar dangers recover for injuries they sustained during a disaster clean-up.  

Due to a severe storm in 2006, CITGO Petroleum Corporation’s Calcasieu Parish Refinery stormwater and storage system overflowed, resulting in a major oil spill. Experts described the spill as being “catastrophic.”  The storm caused 21 million gallons of wastewater to escape, including 17 million gallons of contaminated wastewater and 4.2 million gallons of slop oil. The escaping hazardous waste spilled into surrounding levees and dikes and contaminated over 100 miles of shoreline along the Calcasieu River and required several months of clean up. Employees of Ron Williams Construction that worked at CITGO’s refinery filed a lawsuit for chemical exposure.

Prior to this lawsuit, several other employees of Ron Williams Construction filed a lawsuit against CITGO (for ease of reference, this prior case will be referred to as Arabie 1) and received a favorable verdict. Arabie v. CITGO Petroleum Corp., 89 So.3d 307 (La. 2012). In Arabie 1, the Ron Williams Construction employees received damages, but after several appeals, the Louisiana Supreme Court reversed the district court’s award of $30,000 in punitive damages to each employee. This still resulted in a favorable verdict for the employees, but they were awarded less in damages.  

drywall-mess-1506462-1024x683Do you know someone who owns a condo or a home? In some instances, the drywall used to construct the condo complex or home is built from Chinese-Manufactured Drywall.  From 2005-2008 Chinese Drywall was imported into the U.S. and used in the construction of thousands of buildings. Strangely, residents who lived in those buildings began to notice corrosion of metal building components, failure of electrical wiring and in some cases, even physical ailments that ranged from skin irritation to respiratory problems. Ralph Mangiarelli was one the residents who suffered injuries but of a rather different kind.

Mr. Mangiarelli owned a condo unit at Lauderdale One Condominium complex in Fort Lauderdale, Florida. Sixty-Fifth and One, L.L.C. (“Sixty-Fifth”) developed the complex and Banner Supply Company Pompano, L.L.C. (“Banner”) supplied the drywall used to construct the complex. The Lauderdale One Complex had two buildings called “Building 1” and “Building 2.” Only Building 1 was built using Chinese Drywall.  Mr. Mangiarelli owned a condo unit in Building 2.   

Mr. Mangiarelli and other Building 2 residents filed a class action lawsuit in Florida asserting that Building 2 residents suffered a loss in market value for their condos because of the association with Building 1’s Chinese drywall.  All federal actions alleging damages resulting from Chinese Drywall were transferred in 2009 to the United States District Court for the Eastern District of Louisiana.  

more-large-yard-ornaments-1560393-1024x683The government owes a duty to its citizens to serve their best interests. But what happens when the government breaches that duty? Can we, as citizens, sue our government for perceived wrongs it has committed? Can we recover damages? This is an especially critical issue when it comes to a government’s responsibility to its citizens in times of natural disasters, as illustrated by the following case.

On August 26, 2012, in anticipation of Hurricane Isaac’s arrival, both Governor Bobby Jindal and St. John the Baptist Parish (“Parish”) President, Natalie Robottom, declared a state of emergency. Hurricane Isaac hit three days later. On October 26, 2012, sixty Parish residents (“Residents”), who suffered flood damages as a result of Hurricane Isaac, filed a class action against the Parish. The Residents alleged that the Parish was negligent and at fault for its failure to warn of the probability of flooding, its failure to declare a mandatory evacuation, and its failure to take steps to lessen the damage to the Residents.

The Parish filed an exception of no cause of action on June 24, 2014. An exception of no cause of action raises the question of whether the law provides a remedy to anyone under the facts alleged in the petition. Specifically, the Parish claimed it was entitled to immunity from the Residents’ claims under the Louisiana Homeland Security and Emergency Assistance and Disaster Act (“Act”). The Fortieth Judicial District Court Parish of St. John the Baptist held that the Parish was immune to the Residents’ claims under the Act. Accordingly, the Trial Court granted the Parish’s exception of no cause of action and dismissed the Residents’ claims. The Residents attempted to amend their petition for damages to try and overcome the immunity defense but the Trial Court denied this request.  The Residents filed an appeal, arguing that the Trial Court erred in dismissing their claims based on the Parish’s immunity.

chinese-text-1-1314353-1024x768Res Judicata, also known as claim preclusion, is a Latin term that literally means “for a matter judged.” In the legal system, res judicata is a doctrine that prohibits a second lawsuit from being filed for a matter that has already been judged or decided on the merits. Once parties to a lawsuit have had the opportunity to be heard by the court and the court rules on the claims asserted in the lawsuit, those parties are generally not ever again allowed to bring a lawsuit against the same parties for the same claims that arose from the same transaction or occurrence.

Res judicata prohibited a Mandeville, Louisiana man, George Cepriano, Jr., from being allowed to file a lawsuit against Lowe’s Home Center (Lowe’s).  But, Mr. Cepriano, never personally filed the first lawsuit against Lowe’s. Mr. Cepriano’s lawsuit against Lowe’s was not barred solely due to res judicata, but due to an already adjudged class action lawsuit of which Mr. Cepriano was a class member.  A class action lawsuit permits one or more people to bring a lawsuit on behalf of all class members. A class action ruling results in a res judicata blanket application for all members of the class.

Mr. Cepriano’s journey to the Louisiana First Circuit Court of Appeal began after he bought a newly built home in Mandeville, Louisiana. About two years later, while trying to sell the home to a potential buyer, Mr. Cepriano learned the home was manufactured with defective Chinese-made drywall.  Mr. Cepriano filed a lawsuit against Diamond Investments of Louisiana, L.L.C., the property seller, and B Square Builders, L.L.C., the contractor/builder, and Lowe’s.

do-not-park-1445020-1024x766The difficulties of certifying a class for a class action lawsuit were highlighted in a case in which an Orleans Parish resident, Michelle Albe, disputed a speeding ticket imposed by the City of New Orleans Automated Traffic Enforcement System (“ATES”). Ms. Albe’s challenge was based on the wording of a delinquency notice she received, which contained the threat of ‘possible jail time’. Ms. Albe sought to include all recipients of the delinquency notice in a class action.

Ms. Albe received a citation after she was recorded speeding on October 12, 2008, in the Parish of Orleans. She challenged the ticket, but despite her timely appeal, she received a delinquent notice for non-payment of the citation. The notice contained the threat of “possible jail time” if it wasn’t paid, even though the citation was civil and not criminal.

Ms. Albe amended her challenge to the citation, arguing that the emotional distress she suffered due to the inclusion of the threat of possible jail time in the delinquency notice amounted to the negligent and/or intentional infliction of emotional distress. Ms. Albe then sought to include all other recipients of the delinquency notice, estimated at 40,000 people, in a class action.

martian-mold-1556041-1024x768Class action lawsuits are nontraditional litigation procedures. The ultimate purpose is to not only get relief for a defined class of persons but also a relief for all others similarly situated. See Brooks v. Union Pacific R.R. Co., 13 So.3d 546 (La. 2009). Oftentimes, the issue of who is in the defined class can be complicated in its own right, apart from the substantive issues of the particular case. The trial court has broad authority in deciding whether to certify a class. See Chiarella v. Sprint Spectrum LP, 921 So.2d 106 (La. Ct. App. 2005).

Recently, the Housing Authority of New Orleans (HANO) was facing a class action lawsuit for breach of contract. HANO failed to uphold its responsibilities and duties to the tenants of a housing development pursuant to a lease agreement. The District Court defined the class to include all leaseholders and permanent residents under HANO’s jurisdiction who were adversely affected by the presence of toxic mold in their apartments. The class action plaintiffs asserted that HANO’s failure to keep the apartments and common areas free of mold violated its contractual duty to the federal government, specifically the Department of Housing and Urban Development (HUD).

This case centers on whether plaintiffs, Janice Claborne and Sheryl Jones, could rightfully bring a class action under Louisiana law. In other words, were Claborne and Jones part of the defined class of persons. There are several requirements that must be satisfied before a class action can be brought under Louisiana law: (1) numerosity, (2) commonality, (3) typicality, (4) adequacy of representation, and (5) predominance and superiority.

railroad-in-firenzi-1214429-768x1024If you are the victim of a tort, sometimes the damages can have lasting effects. For example, a toxic chemical spill can have negative health effects on anyone drinking contaminated water far beyond the time and date of the actual spill. There is a legal doctrine called continuing tort theory that can provide some relief in such a case. However, some Fisherville neighborhood residents in Lake Charles, Louisiana recently discovered in their negligence suit against Union Pacific Corporation (“Union Pacific”) that continuing tort theory does not apply to injuries suffered from a past accident where reasonable remedial efforts have been made. The Louisiana Third Circuit Court of Appeal affirmed the Trial Court’s decision to grant Union Pacific’s motion for partial summary judgment, thereby dismissing the case.

The circumstances surrounding the lawsuit dealt with a chemical spill that took place on April 20, 1983. A railcar carrying approximately 11,000 gallons of perchloroethylene (PCE) released the chemical through an open valve while parked at the Lake Charles Rail Yard. Southern Pacific Transportation Company (“Southern Pacific”), a predecessor-in-interest of Union Pacific, owned the rail yard and railcar; PPG Industries (“PPG”) owned the chemicals. Southern Pacific and PPG cleaned the area, allegedly eliminating all of the PCE from the ground surface level by mid-July 1983. However, roughly 1,150 gallons of PCE remained underground and cleaning and remediation efforts continued through monitoring and extraction of the groundwater and through the installation of monitoring wells at the release site and in the neighborhood.

On March 3, 2003, five lawsuits were filed and consolidated into this case. At the Trial Court level, the Plaintiffs initially experienced success when the Trial Court granted them class action status. The Trial Court also stated that the Plaintiffs could pursue their claim on a continuing tort theory. However, the Defendants filed a motion for partial summary judgment on April 28, 2014, in which they sought dismissal of the claim based on prescription and the Plaintiffs’ alleged failure to provide discovery responses. The Trial Court granted the Defendants’ motion for partial summary judgment. Subsequently, the Plaintiffs appealed the decision.

sugar-cane-harvesting-1553007-1024x768On  September 24, 2006, New Iberia, Louisiana held its annual Sugar Cane Festival (“Festival”). Festival goers tend to enjoy, among other things: sugar cookery contests, photography shows, art shows, music, and a wide variety of food. However, on this particular day, those in attendance were exposed to tear gas deployed by local officers responding to vehicles blocking the street, causing traffic standstills. At around the time that the officers dispatched, Delphina Walker, owner of Gator’s Barbecue (“Restaurant”), was hosting quite a few patrons. Walker had hired a DJ for the event and to accommodate the hundreds of people gathered around the Restaurant, the DJ played loud music. The Restaurant is located on the 600 block of Hopkins Street near the intersection of Hopkins Street and Robertson Street, the area where the police were dispatched.

As the crowd, comprised of adults as well as children, proceeded to dance and enjoy the Festival in a possibly rowdy fashion, tear gas was deployed by the police officers. Many of those effected by the gas claimed that the police deployed it with no warning. The police, however, claim that they had issued numerous warnings through a public address system. The facts recalled by the police and some of those in the area where the gas was used are in conflict in other instances as well. For example, there is dispute as to whether or not there was fighting amongst individuals in the crowd and whether or not motorcycle riders revved their engines in response to police warnings.

In response to the events, five individuals filed for certification of a class-action suit for damages. At the trial level, the court granted the certification but the Defendants, a Sheriff and five of his deputies, appealed the certification. Ultimately, while the issues raised by the Defendants were valid, Louisiana’s Court of Appeal for the Third Circuit (Court of Appeal) found them to insufficient to decertify the class, as it affirmed in part and remanded in part.

more-storm-surge-debris-1560382-1024x683Class actions can be complex cases that lead the parties involved to appeal many of the decisions of the trial court.  Sometimes the appeals court will determine that certain issues need more review at the trial court level prior to any decisions being issued on their part.  A recent case out of Orleans Parish, involving a class action lawsuit for claims of improper insurance claim handling and delay of repair claims discusses the limits of what is proper for appeals court in Louisiana to review.

A condominium complex in New Orleans sustained flood and wind damages following hurricanes Katrina and Rita. The plaintiff’s who were owners of the condominiums filed a class action lawsuit against Harbor Homeowners’ Association, Inc and its insurer as well as the president of the Homeowners’ Association, asserting three claims. The claims included (1) unlawfully increasing the insurance deductible without notice and approval from condo owners, (2) unlawfully entering the condos without authorization as well as discarding, gutting, destroying, and damaging contents, and (3) negligently failing to supervise and administer the rebuilding of the condos, resulting in damages and repair delays.

The plaintiffs filed a motion for class certification twice. After a scheduled hearing, the defendants moved for involuntary dismissal, claiming the plaintiff did not establish the required elements for class certification. Following briefs from post-hearings, the trial court granted the class certification motion for the plaintiff only on the delay of repairs and insurance claims and denied the defendant’s involuntary dismissal motion.  An appeal and oral arguments followed in the Louisiana Fourth Circuit of Appeal.  After those arguments both sides filed motions to file post-arguments briefs in the appeals court.