Coleman v. Ofs, Inc.

• Citation: 771 F.3d 815
• Decision Date: 30 October 2014
• Docket Number: No. 13–30150.,13–30150.
• Parties: Levi COLEMAN, Sr., Deceased; Barbara Coleman; Shirley Coleman Moreland; Levi Coleman, Jr.; Stanley Newton; et al, Plaintiffs–Appellants v. OFS, INCORPORATED, individually and as successor in interest to Oil Field Sales and Service, Incorporated; Atlantic Richfield Company, individually and as successor in interest to Arco Oil and Gas Corporation, also known as Arco Oil; Gas Company; BP Products North America, Incorporated, individually and as successor in interest to Amoco Oil Company and American Oil Company; Chevron USA, Incorporated, individually and as the parent company and successor to Gulf Oil Corporation and Gulf Oil Exploration; Production Company, and Texaco, Incorporated, the successor to Texas Company; Exxon Mobil Corporation, individually and as successor in interest to Exxon Corporation and Mobil Exploration; Producing Southeast, Incorporated; Shell Offshore, Incorporated; Shell Oil Company; Swepi, L.P., individually and as successor in interest to Shell Western E;P, Incorporated; Union Oil Company of California; Superior Oil Company; Packard Pipe Terminals, L.L.C., formerly named as Packard Pipe Terminals, Incorporated, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

771 F.3d 815

Levi COLEMAN, Sr., Deceased; Barbara Coleman; Shirley Coleman Moreland; Levi Coleman, Jr.; Stanley Newton; et al, Plaintiffs–Appellants
v.
OFS, INCORPORATED, individually and as successor in interest to Oil Field Sales and Service, Incorporated; Atlantic Richfield Company, individually and as successor in interest to Arco Oil and Gas Corporation, also known as Arco Oil; Gas Company; BP Products North America, Incorporated, individually and as successor in interest to Amoco Oil Company and American Oil Company; Chevron USA, Incorporated, individually and as the parent company and successor to Gulf Oil Corporation and Gulf Oil Exploration; Production Company, and Texaco, Incorporated, the successor to Texas Company; Exxon Mobil Corporation, individually and as successor in interest to Exxon Corporation and Mobil Exploration; Producing Southeast, Incorporated; Shell Offshore, Incorporated; Shell Oil Company; Swepi, L.P., individually and as successor in interest to Shell Western E;P, Incorporated; Union Oil Company of California; Superior Oil Company; Packard Pipe Terminals, L.L.C., formerly named as Packard Pipe Terminals, Incorporated, Defendants–Appellees.

No. 13–30150.

United States Court of Appeals, Fifth Circuit.

Oct. 30, 2014

Reversed and remanded.

Michael Gregory Stag, Esq., Attorney, John L. Fontenot, Esq.,

[771 F.3d 816]

Robert D. McMillin, Smith Stag, L.L.C., New Orleans, LA, for Plaintiff–Appellant.

Marguerite K. Kingsmill, Charles Bruce Colvin, Kingsmill Riess, L.L.C., Bettye Anne Barrios, Gavin H. Guillot, Lauren Raili Bridges, Johnson, Johnson, Barrios & Yacoubian, Michael Raudon Phillips, Esq., Louis Matthew Grossman, Attorney, Kean Miller, L.L.P., Martin A. Stern, Glen Marion Pilie, Esq., Raymond Peter Ward, Adams & Reese, L.L.P., Nichole Mart Gray, Johnson Gray McNamara, L.L.C., Judith V. Windhorst, Jones Walker LLP, New Orleans, LA, Raymond A. Osborn, Jr., Esq., Osborn & Osborn, Harvey, LA, Mary S. Johnson, Esq., Ingrid Marina Kemp, Jill Thompson Losch, Johnson Gray McNamara, L.L.C., Mandeville, LA, Thomas M. McNamara, Johnson Gray McNamara, L.L.C., Lafayette, LA, for Defendant–Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.
Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges. JAMES E. GRAVES, Jr., Circuit Judge:

In a prior opinion and order, we certified to the Supreme Court of Louisiana the question of whether the one-year time period governing a survival action in Article 2315.1 of the Louisiana Civil Code is prescriptive or peremptive. See Coleman v. OFS, Inc., 554 Fed.Appx. 251 (5th Cir. Dec. 18, 2013). The Supreme Court of Louisiana denied certification, because in the interim, that court issued its opinion in Watkins v. Exxon Mobil Corp., 2013–1545 (La.5/7/14), 145 So.3d 237, reh'g denied (July 1, 2014), holding that the time period in Article 2315.1, as amended in 1986, is prescriptive. Applying this clear precedent, we reverse the district court's dismissal of the Plaintiffs' survival actions.

I. Factual and Procedural Background

We restate the factual and procedural background, drawn from our previous certification opinion. Plaintiffs–Appellants in this class action litigation are pipe yard workers and surviving beneficiaries of pipe yard workers. Plaintiffs' tort claims arise out of the pipe yard workers' occupational exposure to radioactive oil field waste materials including Technologically Enhanced Naturally Occurring Radioactive Materials (“TENORM”) and other hazardous substances. Plaintiffs allege that, unknown to the workers, pipe cleaning, pipe maintenance, and yard maintenance resulted in their exposure to TENORM, which caused or contributed to the development of various diseases, health problems, and deaths. Defendants–Appellees are multiple oil companies who contracted with employers of the workers. Plaintiffs allege that Defendants were aware of the dangers of TENORM and were aware of the workers' exposure, but failed to warn the workers or the public of the environmental and health dangers.

The Coleman family originally filed survival claims and...