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NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS
SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeal of Louisiana,
Fourth Circuit.
Olivia BAILEY, on Behalf of the Deceased, William
BROWN, Grace Guidry, on Behalf of the Deceased,
Raymond J. Guidry, Maxine P. Harris, on Behalf of
the Deceased, Damion D. Harris, et al.
v.
EXXON MOBIL CORPORATION, Exxonmobil Oil
Corporation, Chevron USA, Inc., Conocophillips
Company, Marathon Oil Company, Shell Offshore,
Inc., et al.
No. 2011–CA–0177.
Aug. 31, 2011.
Appeal from Civil District Court, Orleans Parish,
No.2009–1973, Division “N–8” Honorable Ethel
Simms Julien, Judge.
Frank M. Buck, Jr., Mikalia M. Knott, New Orleans,
Louisiana and Jeremiah A. Sprague, Timothy J. Falcon, Falcon Law Firm, Marrero, Louisiana, for Plaintiffs/Appellants.
Glen M. Pilié, Martin A. Stern, Valeria M. Sercovich,
Raymond P. Ward, Adams and Reese LLP, New Orleans, Louisiana, for Exxon Mobil Oil Corporation,
Exxon Mobil Corporation, and Humble Incorporated,
Defendants/Appellees.
Mary S. Johnson, Jill T. Losch, Johnson Gray
McNamara, LLC, Mandeville, Louisiana and Thomas
M. McNamara, Johnson Gray McNamara, LLC,
Lafayette, Louisiana and Chad J. Mollere, S. Suzanne
Mahoney, Johnson Gray McNamara, LLC, and Roy J.
Rodney, Jr., Rodney & Etter, LLC, New Orleans,
Louisiana, for Shell Offshore Inc., Shell Oil Co., and
SWEPI LP, Defendants/Appellees.
Michael R. Phillips, Louis M. Grossman, Kean Miller
Hawthorne D'Armond Mccowan & Jarman, L.L.P.,
New Orleans, Louisiana, for Chevron U.S.A. Inc.,
Defendant/Appellee.
Richard S. Pabst, Julie Parelman Silbert, Stephen
Hanemann, Kean Miller Hawthorne D'Armond
Mccowan & Jarman, New Orleans, Louisiana, for
Marathon Oil Co., Defendant/Appellee.
Deborah D. Kuchler, Janika D. Polk, Michele Hale
Deshazo, Kuchler Polk Schell Weiner & Richeson,
LLC, New Orleans, Louisiana, for ConocoPhillips
Co., Defendant/Appellee.
Rene' A. Curry, Jr., Christoffer C. Friend, Molly
Steele, Shannon C. Burr, Curry & Friend, PLC, New
Orleans, Louisiana, for Occidental Chemical Corp.
and Placid Oil Co., Defendants/Appellees.
Ronald A. Johnson, Bettye A. Barrios, Gavin H.
Guillot, Johnson Johnson Barrios & Yacoubian, New
Orleans, Louisiana, for BP Exploration & Production
Inc., American Oil Company, and BP Corporation
North America Inc., Defendants/Appellees.
(Court composed of Judge JAMES F. McKAY III,
Judge MAX N. TOBIAS, JR., Judge DANIEL L.
DYSART).
JAMES F. McKAY III, Judge.
*1 The plaintiffs, Olivia Bailey, on behalf of the
deceased, William Brown, et al, appeal the trial court's
maintaining of an exception of no cause of action for
punitive damages in a wrongful death claim filed by
the defendants, Exxon Mobil Corporation, et al. We
affirm.
FACTS AND PROCEDURAL HISTORY
On December 20, 2002, over 700 named plaintiffs
filed suit in Warren Lester, et al v. Exxon Mobil Corp.,
et al, No.2002–19657, in Civil District Court for Orleans Parish. The plaintiffs alleged that either they or
their decedents were exposed to naturally occurring
radioactive material (NORM) at over 600 pipeyards
throughout Louisiana, six other states, and overseas.
The plaintiffs also alleged entitlement to punitive
damages under former Louisiana Civil Code Article
2315.3.FN1 The trial court ordered the cases be tried in
various flights. As one of these flights progressed to
trial, certain defendants filed a motion in limine to
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
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exclude evidence of damages attributable to the deaths
of persons alleged to have been exposed to NORM
based on the fact that no wrongful death claim had
been pleaded either in the original or in any of the
numerous supplemental and amending petitions filed.
FN1. Former La. C.C. art. 2315.3, effective
September 3, 1984 and repealed April 16,
1996, provided for punitive damages “if it
[were] proved that plaintiff's injuries were
caused by the defendant's wanton or reckless
disregard for public safety in the storage,
handling, or transportation of hazardous or
toxic substances.”
Thereafter, the plaintiffs filed two nearly identical
petitions, both styled Olivia Bailey, et al v. Exxon
Mobil Corp., et al. One was filed in the 24th Judicial
District Court, Jefferson Parish; the other was filed in
Civil District Court, Orleans Parish and is the case
currently before this Court. The plaintiffs then pursued
their wrongful death claims in the Bailey actions and
their survival claims in the Lester action. In the instant
case, the defendants filed numerous exceptions, including peremptory exceptions of no cause of action
for punitive damages for plaintiffs' wrongful death
claims based on this Court's holding in Bulot v. Intracoastal Tubular Services, Inc., 2004–1376
(La.App. 4 Cir. 11/3/04), 888 So.2d 1017. The trial
court sustained the defendants' exceptions of no cause
of action for punitive damages in a wrongful death
case. In its written judgment, the trial court designated
this judgment as final under Louisiana Code of Civil
Procedure Article 1915(B).FN2 It is from this judgment
that plaintiffs now appeal.
FN2. Although the defendants objected to the
trial court's designation of its ruling on the
exception of no cause of action as a final
judgment, we will address the issue of
whether punitive damages can be awarded in
a wrongful death action on the merits.
DISCUSSION
In their sole assignment of error, the plaintiffs
contend that the district court erred in granting defendants-appellants' exceptions of no cause of action
for punitive damages in a wrongful death claim.
Therefore, the issue before this Court is the purely
legal question of whether the plaintiffs' claims for
punitive damages in a wrongful death action are pre-
cluded by Bulot.FN3
FN3. Further developments in both the court
below as well as in the 24th Judicial District
Court occurred after the trial court's ruling on
the exception of no cause of action. The developments pertain to issues of prescription
and res judicata. These issues are not dealt
with in the judgment on appeal currently
before this Court and will not be discussed in
this opinion.
In Bulot, the widow and children of a deceased
employee brought survival and wrongful death actions
against his employer. They alleged that the deceased's
cancer was the result of occupational exposure to
radioactive waste while cleaning oilfield pipes. Id.
The trial court granted the employer's motion for
summary judgment on the punitive damages claims.
His widow and children then appealed. This Court
held that there were genuine issues of material fact
which precluded summary judgment on the punitive
damages claim in the survival action. Id. at 1021. This
Court also held that punitive damages could not be
recovered by way of a wrongful death action. Id. at
1023.
*2 Therefore, the plaintiffs in the instant case are
precluded from recovering damages in a wrongful
death action. Accordingly, we find no error in the trial
court's maintaining of the defendants' exception of no
cause of action.
CONCLUSION
For the foregoing reasons, we affirm the trial
court's judgment.
AFFIRMED.
La.App. 4 Cir.,2011.
Bailey ex rel. Brown v. Exxon Mobil Corp.
--- So.3d ----, 2011 WL 3853938 (La.App. 4 Cir.),
2011-0177 (La.App. 4 Cir. 8/31/11)
END OF DOCUMENT
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.