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Churchman v. BP Exploration & Production, Inc.

United States District Court, E.D. Louisiana

June 11, 2019

ROBERT GERRALD CHURCHMAN
v.
BP EXPLORATION & PRODUCTION, INC. ET AL. Related to: 12-968 BELO in MDL 10-2179

         SECTION “J” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE

         On April 21, 2019, Robert Gerrald Churchman ("Decedent"), through counsel, filed a complaint in his own name pursuant to the Back-End Litigation Option (“BELO”) provisions of the BP/Deepwater Horizon Medical Benefits Class Action Settlement Agreement (“the Medical Settlement Agreement”). Record Doc. Nos. 6427-1 and 8218 in MDL No. 10-md-2179. Record Doc. No. 1. As later pleadings established, however, he had died more than three years earlier and obviously was incapable of pursuing the claim.

         One month later, on May 21, 2019, Defendants BP Exploration & Production Inc. and BP America Production Company (collectively “BP”) filed both an answer, Record Doc. No. 4, and a motion to dismiss plaintiff's complaint. Record Doc. No. 5. In the motion, BP argues that plaintiff failed to comply with the mandatory prerequisites of the Medical Settlement Agreement by not providing documentation in the Notice of Intent to Sue that verifies legal authority of plaintiff's widow, who had signed the required pre- lawsuit Notice of Intent to Sue, Record Doc. No. 5-2 at p.6, to file a lawsuit on Decedent's behalf. Record Doc. No. 5-1 at pp. 1, 4-5.

         One week later, on May 28, 2019, an amended BELO complaint was filed on Decedent's behalf without leave of court, as permitted by Fed.R.Civ.P. 15(a)(1)(B), by Decedent's widow, Betty A. Churchman ("plaintiff") purporting to act “as Personal Representative of the Estate of Robert G. Churchman.” Record Doc. No. 6 at p. 1. The amended complaint alleged that Decedent had been a resident of Alabama employed as a clean-up worker along the Alabama Gulf Coast after the BP/Deepwater Horizon explosion and oil spill on April 20, 2010. Record Doc. No. 6 at ¶¶ 4, 10. As noted above, exhibits to BP's then-pending motion to dismiss establish that Plaintiff's Notice of Intent to Sue and an attached death certificate indicate that Decedent had died almost three years earlier on June 18, 2016. Record Doc. No. 5-2 at pp. 7, 15. The amended complaint attached no documents establishing plaintiff's legal authority to act for Decedent. Like all BELO lawsuits, it seeks compensatory damages and related costs for later-manifested physical conditions that Decedent allegedly suffered as a result of exposure to substances released after the oil spill. Record Doc. No. 6 at ¶¶ 10-17.

         Local Rule 7.5 requires that a memorandum in opposition to a motion must be filed no later than eight (8) days before the noticed submission date. Plaintiff did not file an opposition to this motion. The motion is therefore deemed to be unopposed. Although it alleges Plaintiff's authority to act for Decedent, the amended complaint did not address the lack of legal authority documentation argument asserted in BP's motion to dismiss. Accordingly, unlike certain other pleading matters that I have addressed in the various BELO cases, Plaintiff's filing of the amended complaint, apparently in response to the filing of the motion to dismiss, did not render the motion moot.

         Having considered the motion, the complaint, the record and the applicable law, I recommend that BP's motion to dismiss be GRANTED and that plaintiff's complaint be DISMISSED WITHOUT PREJUDICE for the following reasons.

         ANALYSIS

         The court-approved Medical Settlement Agreement is not a case management order. Instead, it is an unambiguous, binding contract that cannot be modified or altered without the express written consent of the Medical Benefits Class Counsel and BP's counsel. Record Doc. No. 6427-1 at § XXX(C) in 10-md-2179. The BELO lawsuit process is the exclusive remedy for class members who did not opt out of the settlement and who seek compensation for Later-Manifested Physical Conditions, as defined in the agreement. Id. at § II(VV). The Medical Settlement Agreement establishes detailed conditions precedent that must be accomplished before filing a BELO lawsuit.

         The Case Management Order ("CMO") governs basic procedural matters at the outset of BELO cases. The CMO permits the parties to move to dismiss an individual BELO complaint without prejudice for failure to satisfy the conditions precedent to filing a lawsuit as required in the Medical Settlement Agreement. Record Doc. No. 3, CMO at ¶ IV(1)(A).

         When a Medical Benefits Settlement Class Member is deceased, his or her Authorized Representative "may act on his or her behalf" and "shall be bound by the same terms and conditions" of the Medical Settlement Agreement as the decedent would have been "if he or she were acting on his or her own behalf." Record Doc. No. 6427-1 at § III(A) in 10-md-2179. Under the Medical Settlement Agreement,

AUTHORIZED REPRESENTATIVE shall mean, as to a NATURAL PERSON who is (1) a minor, (2) lacking capacity or incompetent, or (3) an estate of a deceased human being, that NATURAL PERSON'S guardian, conservator, tutor, executor, personal representative, administrator, or other representative authorized under or by operation of applicable law to protect the rights and interests of that NATURAL PERSON.

Id. at § II(G).

         The Medical Settlement Agreement enumerates the steps that an Authorized Representative must satisfy as conditions precedent to filing a BELO lawsuit on behalf of a deceased Medical Benefits Settlement Class Member. An Authorized Representative must submit a Notice of Intent to Sue with "documentation confirming that suchAUTHORIZED REPRESENTATIVE is legally authorized to file a lawsuit on behalf of such MEDICAL BENEFITS SETTLEMENT CLASS MEMBER." Id. at ยง XXI(I)(10) (emphasis added). The Authorized Representative is required to identify the authority giving him or her the right to act on behalf of the decedent and "provide copies of documentation verifying [his or her] authority to act, such as a power of attorney or a court order stating his or her authority to act" or, if such documents are not available, "documents establishing [his or her] ...


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