97-0793 La.App. 4 Cir. 4/1/98, Andry v. Murphy Oil, U.S.A., Inc.

• Decision Date: 01 April 1998
• Citation: 710 So.2d 1126
• Parties: 97-0793 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1126

710 So.2d 1126

97-0793 La.App. 4 Cir. 4/1/98

Newell H. ANDRY, et al. v. MURPHY OIL, U.S.A., INC., Louisiana Power & Light Co., and Ernest Cagle.

Carrie DEFFES, et al. v. MURPHY OIL U.S.A., INC.

John POLIZZI, et al. v. MURPHY EXPLORATION & PRODUCTION CO. & Murphy Oil U.S.A., Inc.

Anthony S. ANNINO, et al. v. MURPHY EXPLORATION & PRODUCTION CO., et al.

INSURANCE COMPANY OF NORTH AMERICA, et al. v. LOUISIANA POWER & LIGHT COMPANY and Walworth Company.

Bryan CASSAGNE, et al. v. ENTERGY LOUISIANA, INC., et al.

Clebert J. THERIOT, et al. v. MURPHY OIL U.S.A., INC.

Toni ALPHONSO, et al. v. MURPHY OIL U.S.A., INC. and Reliance National Insurance Company.

Nos. 97-CA-0793 to 97-CA-0800.

Court of Appeal of Louisiana Fourth Circuit.

April 1, 1998.

Kenneth P. Carter, New Orleans and Eugene G. Taggart, Taggart, Morton, Ogden, Staub, Rougelot, Brocato & O'Brien, L.L.C., New Orleans, for Defendant/Appellant Entergy Louisiana, Inc., Etc.

George A. Frilot, III, James F. Shuey, A.J. Krouse, III, Sidney A. Backstrom, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, for Defendant/Appellant Murphy Oil U.S.A., Inc.

Thomas E. Loehn, New Orleans, for Defendant/Appellant The Walworth Co.

Sidney D. Torres, III, Roberta L. Burns, Law Offices of Sidney D. Torres, III, Chalmette and Gerald E. Meunier, Irving J. Warshauer, Gainsburgh, Benjamin, David, Meunier & Warshauer, New Orleans and Gilbert V. Andry, III, Andry & Andry, New Orleans and Joseph M. Bruno, Bruno & Bruno, New Orleans, for Plaintiffs/Appellees.

Before LOBRANO, MURRAY and CIACCIO, JJ.

[97-0793 La.App. 4 Cir. 1] MURRAY, Judge.

Defendants, Murphy Oil U.S.A., Inc., and Louisiana Power & Light Company ¹, appeal a judgment of the trial court denying their exception to the use of class action, and certifying a class for the claims of residents of St. Bernard Parish. We affirm.

At approximately 1:50 a.m. on July 27, 1995, bad weather caused a circuit breaker to trip in an electrical substation owned by Louisiana Power & Light Company, and located in the physical plant of Murphy Oil U.S.A., Inc., in Meraux, Louisiana. LP & L employees were dispatched to close the breaker and to determine why the breaker's automatic closing mechanism did not work. At approximately 8:53 a.m., while they were working on the problem, a short circuit occurred. This caused several units within the plant, including the R.O.S.E. unit, to shut down. When Murphy Oil employees attempted to restart the unit at approximately 9:33 a.m., an explosion and fire erupted.

[97-0793 La.App. 4 Cir. 2] As a result of the incident, several class action lawsuits and an intervention were filed, all of which were consolidated by the trial court. The named plaintiffs are residents and business owners from the area surrounding the plant. Following discovery directed to the certification issue, a hearing on certification was held on May 29 and 30, 1996. The trial court rendered judgment certifying the class. It defined the class as:

All persons or entities who were present or owned property in the area bounded by Palmisano Boulevard to the west of the Murphy Oil Refinery operated by Murphy Oil, U.S.A., Inc., located in St. Bernard Parish, more particularly in Meraux, Louisiana, the Forty Arpent Canal to the north of the refinery; the Meraux pasture to the east of the refinery; and the Mississippi River to the south of refinery on July 27, 1995, who sustained physical injury, medical expenses, property damage, inconvenience, evacuation expenses, emotional distress, fear, fright, anxiety, economic loss, business loss or expenses, or who are entitled to exemplary damages, as a result of the explosion, fire, or emissions that occurred at Murphy Oil, U.S.A., Inc.'s, Meraux, Louisiana refinery on that date.

Defendants argue that the trial court abused its discretion in certifying a class action because none of the requirements for certifying a class action are present in this case. They alternatively argue that the class definition is overly broad.

DISCUSSION:

A class action is no more than a procedural device; it confers no substantive rights. The class action is designed to permit the institution and management of litigation involving a right of common character vested in a sufficient number of parties as to render their joinder impracticable in an ordinary proceeding. The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to the class representatives who [97-0793 La.App. 4 Cir. 3] bring the action but to all others who are similarly situated, provided they are given adequate notice of the pending class action and do not timely exercise the option of exclusion therefrom. La.Code Civ. Proc. art. 597; Williams v. State, 350 So.2d 131, 137-138 (La.1977).

The only issue to be considered by the trial court in ruling on certification, and by this Court on review, is whether the case at bar is one in which the procedural device is appropriate. In determining the propriety of a class action the court is not concerned with whether the plaintiffs have stated a cause of action or the likelihood that they ultimately will prevail on the merits. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Miller v. Mackey Int'l, Inc., 452 F.2d 424 (5th Cir.1971).

At the time the class in this case was certified, the basic requirements for a class action were: (1) a class so numerous that joinder is impracticable; (2) the joinder of parties who are members of the class and able to prove adequate representation for absent members; and (3) a "common" character among the rights of the representatives of the class and the absent class members. ² The party seeking to certify the class bears the burden of proving the required elements. McCastle v. Rollins Environmental Services of La., Inc., 456 So.2d 612, 616 (La.1984). The trial court may consider the pleadings, affidavits, depositions, briefs, exhibits and testimony presented at the certification hearing to determine if the elements for certification have been met. Cotton v. Gaylord Container, 96-1958, p. 13 (La.App. 1 Cir. 3/27/97), 691 So.2d 760, 768, writs denied, 97-0800 and 0830 (La.4/8/97), 693 So.2d 147.

[97-0793 La.App. 4 Cir. 4] We now consider whether the trial court properly exercised its discretion in certifying a class in this case.

A. Numerosity

Defendants argue that the number of individual plaintiffs involved in this case does not make joinder impracticable. They contend that the affidavit submitted by counsel for the Andry plaintiffs, which alleges that over 1,400 persons have engaged counsel to assert a claim, is insufficient proof of numerosity because proof of a "definable group of aggrieved persons" is required.

The numerosity element does not depend upon whether or not the plaintiffs can identify all potential class members. It is not essential that every member of a class can be identified prior to certification. In fact, difficulty in identifying the claimants is one of the factors that makes joinder impracticable and a class action appropriate. McCastle, supra.

At least four separate lawsuits seeking to proceed as class actions were filed. In addition, two suits were filed by individual plaintiffs. The court noted that the number of people asserting a claim could increase significantly once notice of the class action was publicized. Murphy Oil distributed two "informational" flyers regarding the incident to the community surrounding the refinery. One flyer was distributed to 10,000 people, and the other was distributed to 15,000 people. Although Murphy contends that the number of flyers distributed is not related to the number of potential plaintiffs, it is quite likely that this publicity alone could produce claims too numerous for the trial court to handle in any manner other than by a class action.

In Gaylord, supra, seventy-eight cases had been filed at the time of the certification hearing; the exact number of claimants was unknown. The court [97-0793 La.App. 4 Cir. 5] reasoned that due to the large number of potential claimants there was the possibility that the membership of the group would constantly change causing recurring interruption of the action. "The interested parties appear to be so numerous that the courts would be unduly burdened by separate suits or by their joinder, and class action would clearly be more useful and judicially expedient than the other available procedures." Id. at p. 14, 691 So.2d at 769.

The trial court's finding that the numerosity requirement was satisfied in the instant case is supported by the record, particularly in light of Murphy's actions in distributing its informational flyers. Although Murphy characterizes this action as a "community-relations effort," it determined that there were at least 10,000 members of the surrounding community who potentially were affected by the incident, at least to the extent that they would be concerned about why it happened, and would want to know what steps were being taken to prevent such incidents in the future.

The trial court explained that the defendants' argument against certifying the class was centered on minimizing the significance of the event and its impact on the community. The court found that this only bolstered the plaintiffs' position that a...