Class Action

October 25, 2012

Toxic Spill Creates Range of Plaintiffs, No Clear Limit on Class

A Louisiana Court of Appeals remanded a class action case back to the trial court for further determination on the size of a class of plaintiffs affected by a Livingston Parish hazardous waste dump. The case, while unfortunate in subject matter, is an excellent overview of the appeals process.

In this case, the trial court had decided to certify a class of all people living within 2.5 miles of a dump site of Combustion, Inc., that had released toxic chemicals into the air and water. Initially, over 14 lawsuits had been filed by 1200 people, but the trial judge had consolidated the cases to a single class action case. The defendants in the case appealed the trial judge’s decision on two grounds: first, that a class action lawsuit was not the appropriate means of deciding the matter because separate lawsuits would be better; and second, that the judge incorrectly set the eligible class of plaintiffs at all those people living within 2.5 miles of the site.

The Court of Appeals sided with the plaintiffs on the first issue. The Court noted that, under Louisiana civil procedure, a case is appropriately decided by class action if the plaintiffs are numerous enough, the named plaintiffs will adequately represent all plaintiffs in the class, and if there is a common character between the claims of all plaintiffs. The Court reasoned that, there being over 1200 plaintiffs in the initial class, there were clearly enough plaintiffs for the trial court to decide that a class action was fair. Also, the Court reasoned that the plaintiffs would likely all have similar damage from the toxic chemicals—namely, bodily injury and property damage—that would make the named plaintiffs adequate representatives of everyone in the class. Finally, the Court reasoned that the legal issues encountered by the plaintiffs were similar enough that there was a common character between them. For these reasons, the Court held that class action was appropriate to resolve the issues in the case.

October 19, 2012

Following the Rules to the Letter: The Need for Careful Lawyer Behavior

by Berniard Law Firm

In order to sue, there are certain rules and procedures you must follow. There are not only federal rules; there are also state rules and local rules. All of these rules should be combined in order to correctly deal with the court system. In many cases, if you do not comply with these extensive rules, then the court will not hear your case. Obviously, these rules are important, but can be very time consuming to follow.

A recent case provides us with an excellent example of following the rules to the letter. In this case, an individual was killed on Highway 90 near Iberia Parish. His accident occurred on a temporary road near a construction zone; he was the only person involved in the accident. As a result, his mother sued for wrongful death. She listed Toyota Motor North American, Inc., Toyota Motor Engineering & Manufacturing North America, Inc., Toyota Motor Sales U.S.A., Inc., and the Department of Transportation and Development.

One of the many procedures that must be followed is the service of process. Service of process involves giving the other party a letter or some kind of notification that they are being sued. Its purpose is obviously to inform the other party that they are being sued, but also let them know that they will need to respond and possibly go to court to defend the suit.

October 17, 2012

Importance is What, Not Who, in School Mineral Lease Case

by Berniard Law Firm

Recently, the Vermillion Parish School Board sued various oil, gas, and mineral companies based on mineral leases that were established over a period of nearly 70 years. The companies included Union Oil Company of California, The Pure Oil Corporation, and ConocoPhillips Company. After the school’s argument was rejected at the lower level in separate lawsuits, the school filed to appeal the trial court’s decision. The State of Louisiana Court of Appeal for the Third Circuit reversed the lower court’s findings and its justification for doing so is quite interesting. That court addressed the mineral leases generally, the use of Section 16 lands, and the school’s role in the use of Section 16 lands.

This case involved several unique concepts under the law. First, the dispute centered around mineral leases, which are an curious concept themselves. Basically, mineral leases allow another person or company the ability to mine or take the minerals that are on or underneath a portion of land. In order to take those minerals, the person or company has to pay for their use as if they are renting the entire property. The land above ground might also be used for another purpose that is completely unrelated to mining of minerals, oil, or gas underneath the surface. In addition to a specified rent, many times the person or company who owns the land may also require that they receive a portion of the profits that the land produces. This profit portion is commonly referred to as royalties. These royalties are the topic of discussion in the Vermillion Parish School Board case.

In this case, a school owned lands that they had leased to various oil, gas, and mineral companies. The school was situated on Section 16 land. This concept is also unique and deserves some historical explanation. The State of Louisiana Court of Appeals for the Third Circuit provides some background on the status of this land. It explains that in 1806, the United States government set aside some land for the use of public education. Therefore, when Louisiana joined the Union in 1812, the land that was set aside was passed to the State to establish public education. These lands are separate from other public lands because they are completely under the control of the state school authorities; therefore, they are held in trust for the benefit of Louisiana school children. The court further explains that although the school authorities control the use of the land, the land is actually owned by the State of Louisiana.

October 15, 2012

The Law of Injunctions in Louisiana

by Berniard Law Firm

Anyone with experience in the court system knows that seeing a lawsuit through to completion takes time. While the wheels of justice may turn slowly, the plaintiff in certain cases may require urgent action to put a stop to the defendant’s behavior that gave rise to the litigation in the first place. In those situations, a plaintiff can turn to the courts for help in the form of a petition for an injunction.

Under Louisiana law, an “injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result” The Louisiana Supreme Court has explained that “injunctive relief” is designed “to prevent the occurrence of future acts that may result in irreparable injury, loss or damage to the applicant.” The issuance of a permanent injunction requires the court to assess the merits of the request, which may itself require time; the court can issue a preliminary injunction–which only requires a prima facie (on its face) showing that the plaintiff is entitled to relief–to maintain the status quo while the permanent injunction is pending. Key to the success of a plaintiff’s petition is that the court’s compulsion or prohibition of some conduct is required to stave off harm. An injunction cannot be issued for monetary damages. In addition, there is an exception to the requirement that the plaintiff show irreparable harm. The courts disregard this element when the conduct at issue “constitutes a direct violation of a prohibitory law or a constitutional right.” In other words, if the defendant’s conduct is illegal, harm is implied.

The Court of Appeal for the Third Circuit provided a useful analysis of the requirements for an injunction in the recent case of Desselle v. Acadian Ambulance Service, Inc.. The trial court granted of a preliminary injunction against Acadian to prevent it from collecting any amount in excess of the reimbursement rate it had negotiated with Keisha Desselle’s health insurance provider. Desselle disputed that any amount was due to Acadian, and was in litigation with her health insurance company over the matter. The court reversed the issuance of the injunction, stating that the case “[ran] afoul of [Louisiana law] insofar as [Desselle] did not demonstrate that “irreparable injury, loss, or damage may otherwise result” to her. First, Desselle has “already been subjected to the complained-of billing procedure.” Further, “any alleged injury, loss, or damage is monetary is nature. It is unclear how the anticipated injury, loss, or damage is irreparable insofar as “Desselle’s] suit is one for monetary damages.”

October 13, 2012

Jones Act and Seaworthiness Claims Heard by Court of Appeals

by Berniard Law Firm

Being located on the coast, many southern Louisiana residents work aboard vessels in the Gulf of Mexico. While these jobs may pay well, they can also be extremely dangerous. Fortunately, maritime laws seek to protect ocean and river-going workers from conditions that pose health and safety risks. A recent case out of the Court of Appeals for the Fifth Circuit highlights some of these protective laws. In that case, an engineer aboard a diving vessel brought suit against his employer for numerous violations he claimed caused new and exacerbated already existing health conditions. The engineer first made three claims under the Jones Act.

The Jones Act essentially allows a maritime employee to sue his employer for personal injuries that result from negligence. The first claim the engineer made under this Act was that his employer failed to give him adequate rest periods. According to the Jones Act, every individual in charge of an engineer watch is to receive a 10 hour rest period in a 24-hour period. This regulation seeks to ensure that employees are properly rested and therefore attentive in their duties. In this case, though the engineer testified he worked 16 to 18-hour days, he failed to provide any objective evidence supporting his claim.

The second claim made under the Jones Act was that the engineer’s employer failed to provide qualified personnel to relieve the engineer from duty. When a qualified individual is available to cover another employee, fully rested and attentive employees remain on post. This ensures that conditions onboard the vessel remain safe. Here, however, the engineer testified that the other personnel aboard the vessel were qualified, capable and competent. In addition, the court held this section of the Jones Act to apply only when the work being performed is specialized. If the work being conducted is routine and simple the qualifications of the relieving person are inconsequential.

October 9, 2012

Chlorine Gas Leak Case Offers Lesson on Products Liability Claims

by Berniard Law Firm

Four workers who were employed by the Prairieville-based Proserve Hydro Co. were working on at a Honeywell International facility when a hose carrying chlorine gas ruptured, causing them injury. The workers sued Triplex, Inc., the company that had sold the hose to Honeywell, under the theory that it was liable for their injuries as the manufacturer of the hose. The U.S. District Court for the Middle District of Louisiana, applying the Louisiana Products Liability Act (LPLA), granted summary judgment in favor of Triplex, and the workers appealed.

In its review, the U.S. Court of Appeals for the Fifth Circuit noted that The Louisiana Supreme Court has identified four elements that a plaintiff must establish in a products liability suit under the LPLA. It focused particualrly on the requirement that the defendant must be the “manufacturer” of the product according to the state’s definition. The lower court’s summary judgment was based on Triplex’s position that it was not a manufacturer of the hose within the meaning of the LPLA. The hose in question was a “Resistoflex Chlorine Hose Part # HB30HB30HB-1560.” It consisted of a Teflon inner-core surrounded by a braided material jacket. The core and jacket were assembled by the Crane Resistoflex Company and shipped in bulk to Triplex for distribution. Upon receipt of an order from Honeywell, Triplex cut the hose to the requested length, installed Resistoflex-approved fittings to either end, and pressure-tested the hose. Triplex recorded the specifications of this work on an assembly test certificate which listed “Resistoflex” as the manufacturer of the hose.

The court looked to the LPLA to determine whether, based on its cutting the Resistoflex hose and installing the end fittings, Triplex fit the definition of “manufacturer.” It noted that the workers’ expert conceded that the hose rupture occured a significant distance away from any end fitting and did not appear to result from the modifications Triplex performed. It also affirmed the point that “the simple act of testing a product after modifications,” as Triplex did, “does not transform a seller into a statutory ‘manufacturer.’” The court was not persuaded that Triplex exercised any “control over… a characteristic of the design, construction or quality of the product,” given that Honeywell specified the exact Resistoflex part number and the end fittings it required. Accordingly, the court concluded that Triplex was not a manufacturer under the state law definition, and therefore could not be found liable for the workers’ injuries under the LPLA.

October 7, 2012

Louisiana’s Third Circuit Upholds Prescription Finding in Kinder Property Contamination Case

by Berniard Law Firm

In 1960, Hunt Petroleum Corporation (“Hunt”) entered into a surfaces lease with the Reynolds family. In 1997, Kinder Gas Processing Corporation (“Kinder Gas”), one of Hunt’s successors in interest, notified the Reynolds of an environmental study “that showed a few things [Kinder Gas] wanted to clean up,” and that it was “in the process of cleaning them up.” Over several years, Kinder Gas discussed with the Reynolds the possibility of buying part of the property and cancelling the entire lease. On January 14, 2008, the Reynolds (through a real estate appraiser) offered to sell the entire property to Kinder Gas. The offer referred to environmental problems on the property caused by Kinder Gas or its predecessors.

In 2010, Kinder Gas brought suit for a declaratory judgment against the Reynolds to avoid liability for damage to the Reynolds’ property. In turn, the Reynolds sought damages against Kinder Gas and other successors (“the Gas Companies”) in connection with toxic wastes that were spilled or disposed on the property. The Reynolds relied on theories of strict liability, nuisance, continuing trespass, and breach of contract. They asserted that the lease was cancelled as a result of the Gas Companies’ breach of contract. The Gas Companies countered that the tort claims had prescribed, and that the breach of contract claim was premature.

The Kinder Gas v. Reynolds trial court agreed with the Gas Companies, finding that the Reynolds’ had constructive knowledge of possible contamination prior to the real estate agent’s January 14, 2008 offer. Citing Marin v. Exxon Mobil Corp. and Hogg v. Chevron USA, the court held that the Reynolds’ failure to file their tort claims within a year from this date resulted in prescription. The court also found that the lease was still in effect. Relying on Dore Energy Company v. Carter-Langham, Inc., the court held that the Reynolds’ contract claim for restoration of land on which operations were ongoing was premature.

October 5, 2012

Louisiana’s Third Circuit Overturns Decision Limiting Landowners’ Recovery of Damages in Vermillion Parish Pollution Case

by Berniard Law Firm

In Louisiana v. Louisiana Land and Exploration, the State of Louisiana and the Vermilion Parish School Board brought suit against Union Oil Company of California (“Unocal”) and other oil companies for remediation of polluted state property in Vermilion Parish. Unocal admitted that it was responsible for environmental damage on the property and filed a motion to refer the case to the Louisiana Department of Natural Resources (LDNR) pursuant to Act 312 of 2006, La.R.S. 30:29. Plaintiffs objected, arguing that such a referral could not take place until all Defendants admitted responsibility and the private claims were tried to the jury. The trial court agreed with Plaintiffs.

Unocal filed a motion for partial summary judgment limiting Plaintiffs’ remediation damage claims to the amount determined by LDNR to be “the most feasible plan to evaluate or remediate the environmental damage” under La.R.S. 30:29(c)(3). Unocal argued that this language served as a cap on remediation damages resulting from a tort or the implied restoration obligation of a mineral lease. The trial court agreed.Plaintiffs appealed to the Louisiana Third Circuit Court of Appeals, which issued a decision on the case on February 1, 2012.

In considering whether La.R.S. 30:29 limited Plaintiff’s recoverable remediation damages to the cost of a “feasible plan,” the appeals court first looked to the language of the statute. The court quoted the first sentence of La.R.S. 32:29(H): “This section shall not preclude an owner of land from pursuing a judicial remedy or receiving a judicial award for private claims suffered as a result of environmental damage, except as otherwise provided in this Section.” The court found that this language clearly contemplated the landowner receiving an award in addition to that provided by the feasible plan.

September 25, 2012

Taser Death Explored in St. Martin Parish Case

by Berniard Law Firm

In our prior post, we began our review of a wrongful death action that followed the tasering of Othello Pierre by two St. Martin Parish Sheriff’s deputies after he caused a disturbance at a Fourth of July party and attempted to flee the scene. We now examine the approach taken by the U.S. Court of Appeals for the Fifth Circuit in analyzing whether the deputies’ use of the taser amounted to unconstitutionally excessive force.

According to the court, an excessive force claim under the Fourth Amendment “must demonstrate (1) injury, (2) which resulted directly and only from a clearly excessive force, and (3) the excessiveness of which was clearly unreasonable.” In order for the Plaintiff to be successful in this wrongful death action, it is essential that all of these three requirements articulated by the court are met. If even one of the prongs to an excessive force claim are not met, then the Plaintiff will ultimately fail in his action.

In the case of Mr. Pierre, the court concluded that the Plaintiff’s claim “fail[ed] on the second prong” because they offered no evidence to show that Pierre’s injuries–and, by extension, his death–were the direct result of the tasing. Thus, in the court’s view, Pierre’s death did not result directly from the tasing; therefore, he did not meet all the explicit requirements for an excessive force claim. By not meeting the second requirement, the question of whether the tasering was reasonable in the first place was effectively moot.

September 23, 2012

St. Martin Parish Police Tasing Leads to Wrongful Death Suit

by Berniard Law Firm

On July 4, 2008, Othello Pierre attended a party at his uncle’s house in St. Martin Parish. Pierre’s uncle called 911 when Pierre got into a violent argument with a cousin. Two deputies with the St. Martin Parish Sheriff’s Department responded. A third deputy and distant relative of Pierre was also at the party; she informed the two deputies who responded to the 911 call that she suspected there may be warrant out for Pierre’s arrest. The deputies ran Pierre’s name and confirmed that he had an outstanding felony arrest warrant for burglary. When one of the deputies attempted to place Pierre under arrest, he broke away and fled the scene. The two responding deputies pursued Pierre on foot and soon found him hiding behind an old camper shell. Though ordered not to move, Pierre again attempted to run away, at which point one of the deputies fired his taser. The taser barbs hit Pierre in the arm and the head, shocking him with a single five-second cycle. An ambulance took Pierre to the Lafayette General Medical Center where he died approximately three hours later. The autopsy revealed that Pierre’s death was the result of “multidrug intoxication” from substances such as methamphetamine, THC, cocaine, alcohol, caffeine, and nicotine.

Narra Batiste and other members of Pierre’s family filed a civil action against the St. Martin Parish Sheriff and the deputies for the wrongful death of Pierre, alleging, among other things, that the deputies’ use of the taser was an unconstitutional use of deadly or excessive force. The district court heard motions for summary judgment on several issues, including the deputies’ motion to dismiss the claim of excessive force. The court denied the deputies’ motion, and appeal was taken in the U.S. Court of Appeals for the Fifth Circuit.

The Plaintiffs relied on two paths to argue that Pierre’s tasering amounted to an unconstitutional use of deadly force. First, the Plaintiffs cited a Supreme Court case that held it was unlawful to use deadly force against a fleeing felon who does not pose a sufficient threat of harm to a police officer. Because that case concerned the use of a gun and not a taser, however, the court rejected its applicability. The court noted that no Fifth Circuit cases equated the use of a taser to the discharging of a firearm, and it declined to be the first. Second, the Plaintiffs argued that the deputy’s use of the taser while running violated the Sheriff Department’s policy and was contrary to the taser manufacturer’s guidelines for safe use. Yet, in the court’s view, the Plaintiffs failed to demonstrate that the use of the taser in the manner they described created an unreasonable risk of death. The court pointed to a dispute over whether Pierre was actually running when the taser was deployed, and concluded that “Plaintiffs’ assertions that the use of a taser on a fleeing suspect amounted to deadly force [were] unfounded.”