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Bayer v. Starr International Corp.

Court of Appeals of Louisiana, Fourth Circuit

May 2, 2018

THOMAS D. BAYER AND LAURA D. KELLEY
v.
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
v.
STARR INTERNATIONAL CORPORATION, ET AL.

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-03806, DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE

          David W. Bernberg COUNSEL FOR PLAINTIFF/APPELLANT

          L. Peter Englande, Jeffrey E. McDonald, Randell E. Treadaway TREADAWAY BOLLINGER, LLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase

          Joy Cossich Lobrano, Judge.

         The 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 proceedings.

         This 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.[1] 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.

         By the 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.

         Plaintiffs 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.[2] The motion was heard on August 12, 2016 and the motion for summary judgment was granted by the district court on September 26, 2016.

         Plaintiffs 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.

         In its 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.

         The 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, ...


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