THOMAS D. BAYER AND LAURA D. KELLEY
STARR INTERNATIONAL CORPORATION, CIMARRON, LLC, ENTERGY NEW ORLEANS, INC., ENTERGY LOUISIANA, LLC AND ENTERGY GULF STATES LOUISIANA, INC. THOMAS D. BAYER AND LAURA D. KELLEY
STARR INTERNATIONAL CORPORATION, ET AL.
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-03806,
DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE
W. Bernberg COUNSEL FOR PLAINTIFF/APPELLANT
Peter Englande, Jeffrey E. McDonald, Randell E. Treadaway
TREADAWAY BOLLINGER, LLC COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Tiffany G. Chase
Cossich Lobrano, Judge.
sole issue presented for appellate review concerns the
recovery for emotional distress and mental anguish resulting
from fire damage to property. After reviewing the record and
applicable law, we affirm in part, reverse in part, and
remand the remaining issue to the district court for further
litigation arises out of a fire that occurred at a house
owned by plaintiff/appellant, Thomas D. Bayer, at 7418-7422
Maple Street in New Orleans, Louisiana. On April 23, 2014,
employees of Cimarron Underground, Inc.
("Cimarron"), were attempting to switch out a gas
meter underneath the house when they accidently started a
fire. Neither Bayer nor Laura D. Kelley, also
plaintiff/appellant, and a resident of the house, was present
at the property at any time during the fire. Bayer was at
Tulane University's Riley Center while Kelley was at
Tulane's Elmwood campus.
time Bayer and Kelley returned to the house, the fire had
been extinguished, however, Bayer testified "lots of
smoke" was still present. Bayer stated that minor damage
to the asbestos siding on the house was visible. He opened
the front door to let himself and firefighters into the
house. Inside he found small particles of ash, referred to by
him as soot or ash. Kelley was also able to access the house
after the incident. Kelley admitted in her deposition that
she did not lose any items in the fire, and left the property
before emergency personnel dispersed. Plaintiffs had complete
access to the house after the fire and during renovations.
filed suit against Cimarron, Starr Indemnity & Liability
Company, Entergy New Orleans, Inc., Entergy Louisiana,
L.L.C., and Entergy Gulf States Louisiana, Inc. in April
2015. On April 27, 2016, the defendants filed a motion for
summary judgment seeking to dismiss the claims for emotional
distress asserted by the plaintiffs. The motion was heard
on August 12, 2016 and the motion for summary judgment was
granted by the district court on September 26, 2016.
filed a motion for new trial on September 29, 2016, which was
denied on December 6, 2016. Plaintiffs appealed the denial of
their motion for new trial. On August 15, 2017, this court
found that the prior judgement lacked the necessary decretal
language and remanded the matter to the district court. The
district court signed a new judgment on October 10, 2017,
granting defendants' motion for summary judgment and
denying plaintiffs' motion for new trial. Plaintiffs have
appealed this most recent judgment.
reasons for judgment, the district court found that:
Thomas Bayer did not witness the destruction of his home, did
not take medication, or seem unusually upset. Thomas Bayer
alleged high blood pressure, but such had already manifested
itself prior to the incident. Thomas Bayer states he is going
to take a medical examination to determine if his tinnitus is
due to the incident. However, doctors in previous medical
examination of Thomas Bayer did not provide that the tinnitus
is a result of the incident.
Laura Kelley was not nearby or present at the incident and
Thomas Bayer only has the usual worry and inconvenience of
damage to his property.
standard of review of the granting of a summary judgment is
de novo. This court discussed the standard of review
for summary judgment in Ducote v.Boleware,
15-0764, p. 6 (La.App. 4 Cir. 2/17/16), 216 So.3d 934, 939,