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Lennie v. Exxon Mobil Corp.

Court of Appeals of Louisiana, Fifth Circuit

June 27, 2018

PATRICIA LENNIE, BRETT LENNIE, AND MARCELLA FUESLIER
v.
EXXON MOBIL CORPORATION, ET AL.

          ON 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. Doguet

          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

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson

          ROBERT A. CHAISSON JUDGE

         In this 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.

         FACTS AND PROCEDURAL HISTORY

         From 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.

         On 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.

         In 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.[1] 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.

         In 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.[2] 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 perempted.

         At the 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.[3]

         On appeal, the Lennies raise the following four assignments of error:

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.

         DISCUSSION

         Because 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. Id.

         The 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.

         At the 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 unreasonable. Id.

         The 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 their claims.

         The 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 ...


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