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Fontcuberta v. Cleco Corp.

Court of Appeals of Louisiana, First Circuit

June 2, 2017

ROBERT "BERT" L. FONTCUBERTA AND MAPMAN, LLC INDIVIDUALLY AND ON BEHALF OF ALL OTFIERS SIMILARY SITUATED
v.
CLECO CORPORATION AND PIKE ELECTRIC, LLC

         On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Trial Court No. 2014-15396 The Honorable Martin E. Coady, Judge Presiding

          Gary J. Gambel Michael D. Letourneau New Orleans, Louisiana and Jennifer N. Willis William P. Buckley New Orleans, Louisiana Attorneys for Plaintiffs/ Appellants, Robert "Bert" L. Fontcuberta and MapMan, LLC, individually and on behalfofall others similarly situated.

          W. Raley Alford, III William M. Ross Eva J. Dossier New Orleans, Louisiana Attorneys for Defendants/ Appellees, Cleco Corporation and Cleco Power, LLC.

          Charles J. Duhe, Jr. Jason D. Bone New Orleans, Louisiana Attorneys for Defendant/ Appellee, Pike Electric, LLC.

          BEFORE: PETTIGREW, McDONALD, AND PENZATO, JJ.

          PENZATO, J.

         Plaintiffs, Robert "Bert" Fontcuberta and MapMan, LLC (MapMan), [1]appeal a judgment denying a class certification against Defendants, Cleco Corporation, [2] Cleco Power, LLC (Cleco), and Pike Electric, LLC (Pike). For the reasons stated herein, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On December 11, 2013, a vehicle accident occurred that involved an automobile striking a utility pole adjacent to Ochsner Boulevard in St. Tammany Parish. As a result of the accident, plaintiffs and a number of other residents/businesses lost electrical power. The utility pole belonged to Cleco. The pole supported a 34.5 kV circuit (Circuit 4001) and a 13.2 kV circuit (Circuit 4186C). The force of the impact dislodged a wire on Circuit 4001, the higher voltage distribution circuit, which contacted or came into proximity with a wire on Circuit 4186C, the lower voltage circuit. This resulted in an abnormal electrical event, or "fault." As a result of the accident, approximately 2000 Cleco customers lost power. Specifically, some customers on Circuit 4001 lost power, and all of the customers on Circuits 4186A, 4186B, and 4186C lost power. Each of those four circuits had four "phases, " or distribution wires. Generally, each customer receives power from only one phase, and customers in the same neighborhood may be served by different phases.

         Pike provides skilled labor to customers such as Cleco to perform electrical maintenance and repair work. Pike's crew foreman, Mike Morel, Jr., testified that he learned of the accident while his crew was at another job. Cleco called and requested that his crew assist Cleco with the pole after the accident. Morel explained that when he arrived on the scene, the line was already de-energized, and his crew changed two lightning arresters, also known as surge protectors. Cleco and Pike performed repairs and "switching" operations to restore power in stages and approximately two hours after the accident. Mr. Morel testified that Pike was not involved in the actual restoration of power, and Pike's crew was not present when the power was restored.

         Mr. Morel[3] also explained that the surge took place when the 34.5kV line (higher-voltage line) fell on the 13.2 kV line (lower-voltage line), and that the surge is created when the electricity attempts to return to the source, the main substation.

         Plaintiffs allege that a surge occurred during the restoration of power. Plaintiffs specifically claim that defendants, Cleco and Pike, an independent contractor, while attempting to restore the power, "performed the restoration operation in a negligent fashion so that a massive electrical surge was created, damaging wiring, appliances, buildings, and other things belonging to plaintiffs and other residents/businesses/customers of defendants." The plaintiffs alleged that the "electrical surge destroyed appliances, damaged electrical systems, started fires, and caused other harm and losses."

         Cleco maintains that any surge would have coincided with the automobile crash that damaged the utility pole, as opposed to the restoration of power that followed. Cleco further asserts that the plaintiffs' expert also agreed that the surge occurred prior to the restoration.

         Plaintiffs filed a motion to certify the class on January 21, 2015. The trial court held a class certification hearing on May 11, 2016. On the same date, plaintiffs filed a motion to amend the class action petition. The motion sought to amend paragraph 5 of the original petition to read:

Due to defendants' negligence in designing, installing, maintaining and/or repairing their electrical equipment, and/or due to defendants' negligence in restoring power following the car accident, a massive electrical surge was created, damaging wiring, appliances, buildings, and other things belonging to plaintiffs and other residents/businesses/customers of defendants.

         The trial court issued written reasons on June 28, 2016, and signed a judgment on July 21, 2016, denying plaintiffs' motion for class certification. On June 29, 2016, the trial court held a hearing on the motion for leave to amend the class certification.[4] Because the trial court had already denied the class certification and because plaintiffs sought to add a new theory of liability after the deadlines set by the trial court, the trial court denied the motion to amend the petition for class certification and signed a judgment in accordance therewith on August 30, 2016. This appeal was originally brought referencing the date of June 28, 2016, the date of the trial court's written reasons. This court issued a rule to show cause, and the trial court issued a new appeal from the correct date of the July 21, 2016 judgment denying class certification.[5] The only judgment being appealed is the July 21, 2016 judgment denying the class certification. No appeal has been taken from the August 30, 2016 judgment denying the motion to amend the class certification.

         ERRORS

         Plaintiffs claim the trial court erred in finding that they did not meet their burden of satisfying the requirements to certify a class of commonality, numerosity, typicality, adequacy of representation, and predominance.

         LAW AND DISCUSSION

         A trial court has wide discretion in deciding whether to certify a class. An appeal of a judgment addressing class certification is reviewed under the manifest error standard; the trial court's factual findings can only be reversed upon finding, based on the entire record, no reasonable factual basis for the factual finding and the fact finder is clearly wrong. The ultimate decision of whether to certify the class is reviewed under the abuse of discretion standard. Baker v. PHC-Minder, L.P., 2014-2243 (La. 5/5/15), 167 So.3d 528, 538.

         The only issue to be considered by the trial court when ruling on certification, and by this court on review, is whether the case at bar is one in which the procedural device is appropriate. In determining the propriety of such action, the court is not concerned with whether the plaintiffs have stated a cause of action or the likelihood they ultimately will prevail on the merits, but whether the statutory requirements have been met. Baker, 167 So.3d at 537.

         Under Louisiana law, the requirements for class certification are set forth in La. C.C.P. art. 591. Article 591(A) provides five threshold prerequisites, often referred to as numerosity, commonality, typicality, adequacy of representation, and obj ective definability of class:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that joinder of all members is impracticable.
(2)There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or ...

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