APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 734-229, DIVISION
"F" HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, PATRICIA LENNIE, BRETT
LENNIE AND MARCELLA LENNIE FUSELIER Timothy J. Falcon
Jeremiah A. Sprague Jarrett S. Falcon
COUNSEL FOR DEFENDANT/APPELLEE, CHEVRON U.S.A., INC. Michael
R. Phillips Brett P. Fenasci Shannon A. Shelton Carol M. Wood
Lynn K. McKay
COUNSEL FOR DEFENDANT/APPELLEE, SHELL OIL COMPANY, SHELL
OFFSHORE INC. AND SWEPI LP Deborah D. Kuchler Janika D. Polk
Michele H. DeShazo Mark E. Best Skylar B. Rudin Joshua J.
COUNSEL FOR DEFENDANT/APPELLEE, BP PRODUCTS NORTH AMERICA, BP
AMERIC PRODUCTION COMPANY AND ATLANTIC RICHFIELD COMPANY
Michael P. Cash Wade T. Howard Mark L. McNamara Joseph I.
Giarrusso, III Lauren R. Bridges
COUNSEL FOR DEFENDANT/APPELLEE, INTRACOASTAL TUBULAR
SERVICES, INC. Thomas E. Balhoff Judith R. Atkinson Carlton
Jones, III Ryan R. Brown
composed of Judges Susan M. Chehardy, Jude G. Gravois, and
Robert A. Chaisson
A. CHAISSON JUDGE
survival and wrongful death suit, plaintiffs, who are the
children and surviving spouse of decedent, Julius Lennie,
appeal a judgment of the trial court that sustained
defendants' exceptions of prescription. For the reasons
that follow, we affirm the judgment of the trial court.
AND PROCEDURAL HISTORY
1961 to 1994, Julius Lennie worked as an employee of
Tuboscope, a company that was hired by various oil companies
and pipe cleaning contractors to clean and refurbish used
oilfield production pipe and tubing. The cleaning process
used by Tuboscope involved grinding scale out of the used
pipe, a process that allegedly caused the emission of
naturally occurring radioactive material ("NORM").
Mr. Lennie retired from Tuboscope in 1994.
January 28, 2010, approximately fifteen years after his
retirement, Mr. Lennie was diagnosed with lung cancer. Mr.
Lennie died less than a month later, on February 20, 2010.
Nearly four years later, on January 2, 2014, Mr. Lennie's
surviving spouse, Patricia Lennie, and his children, Brett
Lennie and Marcella Lennie Fueslier, filed a survival and
wrongful death suit against various oil companies and pipe
cleaning contractors that had hired Tuboscope to clean and
refurbish used oilfield pipe.
their petition, the Lennies alleged that Mr. Lennie was
exposed to dangerous levels of radiation from the scale and
dust while working in defendants' pipe yards, and that
this exposure caused Mr. Lennie's lung cancer and
ultimately his death. They further alleged that during the
time of Mr. Lennie's exposure, defendants were aware of
the dangers of NORM, that they failed to warn Mr. Lennie of
those dangers, and that they failed to correctly identify,
handle, contain, clean up, or dispose of NORM in their pipe
yards. The Lennies additionally alleged that in August 2013,
Mr. Lennie's son, Brett, discovered a newspaper article
regarding lawsuits involving radiation exposure in pipe
yards, and that they were not on notice of their wrongful
death or survival claims until September 30, 2013, when they
met with attorneys at the Falcon Law Firm regarding these
lawsuits. According to the Lennies, neither they nor
Mr. Lennie had any knowledge of their claims because
defendants actively worked to conceal the discovery of NORM
and the dangers it presented to oilfield workers. The Lennies
also alleged that defendants actively lobbied government
environmental regulators to adopt tests and standards that
were ineffective in correctly detecting NORM levels.
response to the Lennies' petition, because it was filed
more than one year after Mr. Lennie's death, various
defendants filed peremptory exceptions of
prescription. Regarding the Lennies' survival claims
in particular, defendants argued that the survival claims
were extinguished due to their failure to file suit within a
one-year peremptive period established by La. C.C. art.
2315.1. In opposition, the Lennies argued that because of
defendants' concealment, and/or because the Lennies had
no actual or constructive knowledge of their claims before
Brett Lennie found the newspaper article in April 2013, that
the prescriptive periods for their wrongful death and
survival claims had been suspended under the doctrine of
contra non valentem. Before the hearing on these
exceptions, the Louisiana Supreme Court rendered its opinion
in Watkins v. Exxon Mobil Corp., 13-1545 (La.
5/7/14), 145 So.3d 237, where it determined, under facts very
similar to the case sub judice, that the one-year
period for survival actions set forth in Article 2315.1 is
prescriptive rather than peremptive. Following this ruling,
defendants refiled their exceptions of prescription and
argued that the survival claims were prescribed, if not
hearing of defendants' exceptions, the Lennies argued
that, under the theory of contra non valentem, their
claims had not prescribed. The trial court, finding that the
Lennies failed to meet their burden of proof for the
application of contra non valentem, sustained
defendants' exceptions of prescription and dismissed the
Lennies' claims with prejudice. It is from this judgment
that the Lennies now appeal.
appeal, the Lennies raise the following four assignments of
I. The trial court erred as a matter of law because it based
constructive notice on what the Lennies could have known
rather than what they actually did know.
II. The trial court committed legal error in its analysis of
constructive notice because it did not consider that the
Lennies must have knowledge of facts indicating to a
reasonable person that they were the victim of a tort.
III. The trial court erred in its factual finding that the
Lennies possessed sufficient information to begin an
investigation of their cause of action.
IV. The trial court erred in not finding defendants'
concealment impeded the Lennies from acquiring knowledge of
their cause of action.
a peremptory exception raises a legal question, appellate
courts review a judgment sustaining the exception de
novo. Vicari v. Window World, Inc., 14-870
(La.App. 5 Cir. 5/28/15), 171 So.3d 425, 435. However, if
evidence is introduced at the hearing on the peremptory
exception of prescription, the trial court's findings of
fact are reviewed under the manifest error-clearly wrong
standard of review. Rando v. Anco Insulations Inc.,
08-1163 c/w 08-1169 (La. 5/22/09), 16 So.3d 1065,
1082. If the findings are reasonable in light of the record
reviewed in its entirety, an appellate court may not reverse
even though convinced that had it been sitting as the trier
of fact, it would have weighed the evidence differently.
Lennies concede that, because their petition for wrongful
death and survival claims was filed on January 2, 2014,
nearly four years after Mr. Lennie's death on February
20, 2010, it appears on the face of the petition to have
prescribed. Ordinarily, the party urging prescription bears
the burden of proof at the trial of the exception; however,
if the petition is prescribed on its face, the burden shifts
to the plaintiff to show that the action has not prescribed.
Palazola v. IMC Consulting Eng'rs, Inc., 16-22
(La.App. 5 Cir. 6/30/16), 197 So.3d 782, 784.
trial of the exceptions of prescription and on appeal, the
Lennies maintain that the prescriptive periods on their
claims were suspended pursuant to the doctrine of contra
non valentem. The doctrine of contra non valentem
agere nulla currit praescriptio ("prescription does
not run against the party unable to act") is an
exception to La. C.C. art. 3467, which states that
prescription runs against all persons unless an exception is
established by legislation. Guillot v. Daimlerchrysler
Corp., 08-1485 (La.App. 4 Cir. 9/24/10), 50 So.3d 173,
181 (citing Wimberly v. Gatch, 93-2361 (La.
4/11/94), 635 So.2d 206, 212). Pursuant to the doctrine of
contra non valentem, prescription does not run
against a claimant who is ignorant of the existence of facts
that would enable him to bring a cause of action, provided
that his ignorance is not willful, negligent, or
doctrine of contra non valentem may apply when: 1)
there is some legal cause which prevented the court or its
officers from taking cognizance of and acting on the
plaintiff's actions; or 2) where there is some condition
coupled with the contract or coupled with the proceedings
which prevented the plaintiff from suing or acting; or 3)
where the defendant has done some act effectually to prevent
the plaintiff from availing himself of his cause of action;
or 4) where the cause of action is not known or reasonably
knowable by the plaintiff, even though his ignorance is not
induced by the defendant. Tenorio v. Exxon Mobil
Corp., 14-814 (La.App. 5 Cir. 4/15/15), 170 So.3d 269,
274-75. The Lennies contend that the third and fourth
categories of contra non valentem are applicable to
Lennies have brought both survival claims and wrongful death
claims, which are separate and distinct causes of action.
See Watkins, 145 So.3d at 241; Guidry v.
Theriot, 377 So.2d 319, 322 (La. 1979). Although both
actions arise from a common tort, survival and wrongful death
actions are separate and distinct, arise at different times,
and address themselves to the recovery ...