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Black v. Exxon Mobil Corp. Intracoastal Tubular Serv.

Court of Appeals of Louisiana, Fifth Circuit

November 25, 2014

MYRNA DAVIS BLACK INDIVIDUALLY AND AS NATURAL TUTRIX OF REGINALD TYRIQUE BLACK, JR. AND AMARI BLACK
v.
EXXON MOBIL CORPORATION INTRACOASTAL TUBULAR SERVICE, INC

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 732-073, DIVISION " N" . HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING.

MICHAEL H. MCINTIRE, ATTORNEY AT LAW, Madisonville, Louisiana AND HENRY T. DART, ATTORNEY AT LAW, Covington, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

GLEN M. PILIE, MARTIN A. STERN, RAYMOND P. WARD, VALERIA M. SERCOVICH, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst and Hans J. Liljeberg.

OPINION

STEPHEN J. WINDHORST, J.

Page 1014

[14-524 La.App. 5 Cir. 2] Plaintiffs appeal from a ruling of the trial court granting an exception of lispendens in favor of defendants, Exxon Mobil Corporation (" Exxon Mobil" ) and Intracoastal Tubular Service, Inc. (" ITCO" ).

Page 1015

For the reasons that follow, we affirm the judgment of the trial court.

Plaintiffs, Myrna Black, individually and as natural tutrix for her children, Reginald Black and Amari Black, filed this suit for survival and wrongful death, after Ms. Black's husband, Reginald Black, died from liver cancer in August of 2013. In this suit, Ms. Black alleges that his cancer was caused by exposure to technically enhanced radioactive material generated by pipe cleaning operations conducted by defendant ITCO, for defendant Exxon Mobil.

At the time of the filing of this suit, a similar suit, Brittany Roache, et al. v. Alpha Technical Services, et al., No. 669-999 was pending, having been filed in the 24th Judicial District Court on February 19, 2009. Two of the named defendants in the Roache suit were Exxon Mobil and ITCO. In that suit, plaintiffs alleged that as a result of exposure to hazardous and/or toxic substances, they had suffered and would continue to suffer physical injuries and diseases, medical bills, [14-524 La.App. 5 Cir. 3] lost wages, anxiety and emotional distress, increased chance of contracting diseases in the future, aggravation of preexisting conditions and fear of contracting diseases in the future. The petition also sought exemplary damages. The day following the filing of the Roache suit, Mr. Black and others intervened. Shortly after, Mrs. Black also intervened in the suit for her personal injuries.

Both ITCO and Exxon Mobil filed exceptions of lispendens in the instant suit, which were granted by the trial court. Plaintiffs have appealed, alleging that the trial court erred in granting the exceptions of lispendens as to both plaintiffs' wrongful death and survivorship claims.[1]

" When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto...." La. C.C.P. art. 531. The test for lispendens is to determine whether a final judgment in the first suit would be res judicata in the second suit. Robert L. Manard III PLC v. Falcon Law Firm PLC, 12-0147 (La.App. 4 Cir. 11/16/12), 119 So.3d 1, 4 (citing Glass v. Alton Ochsner Medical Foundation, 02-0412 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 406). Thus, three requirements must be satisfied for dismissal of a suit pursuant to an exception of lispendens:(1) there must be two or more suits pending; (2) the suits must involve the same transaction or occurrence, and (3) the suits must involve the same parties in the same capacities. Krecek v. Dick, 13-0804 (La.App. 4 Cir. 2/19/14), 136 So.3d 261; Pittman v. Velez, 09-305 (La.App. 5 Cir. 12/29/09), 30 So.3d 953.

The first requirement for granting an exception of lispendens is that there are two or more suits pending. Here, there are two suits pending, namely the Brittany Roache [14-524 La.App. 5 Cir. 4] proceedings and the present matter. Thus, the ...


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