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Caruso v. Chalmette Refining, LLC

Court of Appeals of Louisiana, Fourth Circuit

June 28, 2017

VINCENT CARUSO, JR., ET AL
v.
CHALMETTE REFINING, LLC AUDREY RAYMOND
v.
CHALMETTE REFINING, LLC

         APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 118-118 C\W 119-194, DIVISION "A" Honorable Robert A. Buckley, Judge

          Robert B. McNeal Charles B. Wilmore Matthew D. Simone LISKOW & LEWIS One Shell Square COUNSEL FOR DEFENDANT/APPELLANT, CHALMETTE REFINING, L.L.C.

          Thomas E. Schwab BARKLEY & THOMPSON, L.C. COUNSEL FOR DEFENDANT/APPELLANT, EATON CORPORATION

          Jeffrey Berniard BERNIARD LAW FIRM, -AND- Sidney D. Torres, III Roberta L. Burns Beau Camel LAW OFFICES OF SIDNEY D. TORRES, III, APLC Torres Park Plaza -AND- Gregory P. DiLeo Benjamin W. Gulick -AND- Jay Andry, Jr. COUNSEL FOR PLAINTIFFS/APPELLEES VINCENT CARUSO, JR., AUDREY RAYMOND AND KAREN REYNOLDS

          Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Terrel J. Broussard, Pro Tempore

          Terrel J. Broussard, Pro Tempore, Judge

         Chalmette Refining, L.L.C., and Eaton Corporation appeal the district court's amended judgment of June 17, 2016, which arose out of a June 15, 2015 bench trial. The trial was held to determine an award of cleaning cost damages in this class action proceeding.[1] For the reasons herein, we reverse the judgment of the district court.

         Facts and Procedural History

         This matter arose out of an industrial accident which occurred at Chalmette Refining's St. Bernard facility. Because of problems with some electrical equipment manufactured by Eaton, the refinery's fluid catalytic cracker unit was forced into an emergency shutdown. As a result of the emergency shutdown, nineteen tons of regenerated catalyst was released from the cracker unit's stack during the early morning hours of September 6, 2010.[2] The catalyst exited the cracker unit's stack at a height of 342.71 feet, with a velocity of 31.76 miles per hour, and at a temperature of 145° Fahrenheit. Winds deposited dust from the catalyst plume over a considerable portion of St. Bernard Parish and Orleans Parish's lower ninth ward.

         In response to the accident, Chalmette Refining issued a public notice that persons with claims or concerns about the catalyst dust release could call a toll-free telephone number to get information and/or make a claim. Chalmette Refining, accordingly, hired Crawford & Co. to adjust claims and investigate complaints related to the catalyst dust release. Shortly thereafter, Crawford began to contact those individuals making claims. Between the time of the public notice and October 11, 2010, Chalmette Refining responded to numerous claims for dust cleanup. Specifically, it arranged for the pressure washing of 130 structures and paid 1, 330 claims for the exterior cleaning of 1, 445 structures. Chalmette Refining also paid 1, 241 claimants to wash 1, 883 automobiles, and arranged for the individual cleaning of 136 additional vehicles.

         In response to the incident, plaintiff Audrey Raymond filed a petition for damages in Civil District Court for Orleans Parish on September 8, 2010, which was subsequently amended to add class allegations. Plaintiffs Vincent Caruso, Jr. and Karen Reynolds filed a class action petition in St. Bernard Parish on September 2, 2011. Ms. Raymond's claims were transferred from Orleans Parish to St. Bernard Parish and consolidated. Mr. Caruso, Ms. Raymond, and Ms. Reynolds all continued as plaintiffs; and each serves as a class representative. After the class representatives filed a motion for class certification, but prior to the certification hearing, the parties narrowed the issues by entering into several stipulations. First, the parties stipulated as to the class' geographic boundaries:

The class shall be defined geographically as the area that is bounded on the south by the northern bank of the Mississippi River, on the east by the center line of Louisiana Highway 47 (commonly referred to as Paris Road), on the north by the southern boundary of the marsh located south of Bayou Bienvenue, and on the west by the eastern bank of the Inner Harbor Navigation Canal (more commonly known as the Industrial Canal), as shown in Exhibit 1 attached hereto.

         Additionally, the parties stipulated that class certification would not be sought in this proceeding to adjudicate any claims for personal injuries. This matter, accordingly, is limited solely to claims for property damages. The district judge eventually granted the class representatives' motion and certified the class on September 27, 2013 as defined as:

Louisiana residents who lived or owned property located in the Parishes of St. Bernard and Orleans within a geographic area stipulated to by the parties and whose property, moveable and/or immovable, was impacted and/or contaminated as a result of the subject spent catalyst release from Chalmette Refining, L.L.C. facility on or about September 6, 2010 and who suffered property damage and/or were required to clean their properties due to the release.

         Following class certification, the parties again entered into several stipulations. First, the appellants stipulated that they would be "solidarily liable for any award of property damages to plaintiff Vincent Caruso, Jr., Audrey Raymond and/or Karen Reynolds at the Trial and/or to any class members/plaintiffs in any subsequent trials or adjudications, as a result of the September 6, 2010 catalyst release." Next, the class representatives, individually and on behalf of other class members, entered into three stipulations. First, they stipulated that none of them is claiming permanent damage to any property as a result of the September 6, 2010 catalyst release. They next stipulated that none of them is claiming any damage to the exterior or interior finishes of their residences, other buildings or automobiles (excluding any required cleaning) as a result of the September 6, 2010 catalyst release. Lastly, they stipulated that none of them is claiming any damage to their HVAC systems or any component thereof as a result of the September 6, 2010 catalyst release.

         The class representatives subsequently filed a motion for Partial Summary Judgment as to liability on March 13, 2015. After hearing oral argument from the parties on April 16, 2015, the district judge took the matter, under advisement. In a judgment issued ...


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