Brown v. New Orleans Public Service, Inc.

• Decision Date: 09 April 1987
• Docket Number: No. CA-5049,CA-5049
• Citation: 506 So.2d 621
• Parties: Jerry Boguille, wife of/and Oscar BROWN, et al. v. NEW ORLEANS PUBLIC SERVICE, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 621

506 So.2d 621

Jerry Boguille, wife of/and Oscar BROWN, et al. v. NEW ORLEANS PUBLIC SERVICE, INC.

No. CA-5049.

Court of Appeal of Louisiana Fourth Circuit.

April 9, 1987.

Writ Denied June 12, 1987.

Dwan S. Hilferty, Israel M. Augustine, Jr., Augustine, Bagert, McConduit & Hilferty New Orleans, for Jerry Boguille, wife of/and Oscar Brown, et al.

Edward J. Castaing, Jr., William L. Crull, III, Carol Lynn Doskey, Dymond, Crull, Castaing & Doskey, New Orleans, for intervenors-appellants Bernard Dornblatt, Robert Philibert, Edward Giroir and Edward K. Ellis.

Caleb H. Didriksen, Andrew P. Carter, Eugene G. Taggart, Appeal Counsel, Jeffrey M. Lust, New Orleans, for appellant, New Orleans Public Service Inc.

Before SCHOTT, WARD and WILLIAMS, JJ.

WARD, Judge.

The present appeal is from a judgment which certified this lawsuit as a class action, with the plaintiffs representing "the class of New Orleans Public Service, Inc. ratepayers affected by power outages on January 21, 1985." The lawsuit, filed on January 23, 1985, alleges personal and property damage sustained by the plaintiffs because they were without electrical power for several hours when the temperature in New Orleans allegedly was 16 degrees. In granting the plaintiffs' motion for certification of the class, the Trial Judge denied numerous exceptions filed by NOPSI and by four individual intervenors who are NOPSI customers who oppose the class action. In their appeal of the certification, NOPSI and the intervenors reassert their objections to the class action by raising numerous legal and ethical arguments which they contend militate against that form of proceeding in this case. We reverse the certification of the class, holding that the Trial Judge abused his discretion in finding that the statutory requirements for a class action had been met and in concluding that a class action offers the most appropriate means of adjudicating the claims and defenses in this case.

The statutory requirements for maintaining a class action under Louisiana law are set forth in C.C.P. arts. 591-595 and have been extensively discussed in several opinions of our Supreme Court, most notably Stevens v. Board of Trustees, 309 So.2d 144 (La.1975); Williams v. State, 350 So.2d 131 (La.1977); State ex rel. Guste v. General Motors Corp., 370 So.2d 477 (La.1979); and McCastle v. Rollins Environmental Services, Inc., 456 So.2d 612 (La.1984). We deem it unnecessary for purposes of this opinion to review in depth the statutory requirements for a class action and the judicial interpretations of those requirements except as to the third requirement which we find lacking in this case. Suffice it to say that a class action is available only when: (1) a class exists which is so large that joinder of all members is impractical; (2) the parties to the suit are (a) members of the class and (b) situated to provide adequate representation for absent members of the class; and (3) a common character exists between the rights of the representatives and the absent members of the class. La.C.C.P. arts. 591, 592.

We believe the requisite "common character" is lacking in this case. A common character among the rights of the representatives and the members of the class means more than the mere sharing of a common question of law or fact. Stevens, 309 So.2d at 151. A class action is appropriate only when common questions of law or fact predominate over questions affecting only individual members of the potential class. Guste v. General Motors, 370 So.2d at 489. The objective of this requirement is "to identify the cases where a class action promises important advantages of economy of effort and uniformity of result...." McCastle, 456 So.2d at 616. Accordingly, before a class action can be certified the Trial Court must determine that, as a practical matter, "the class action will be clearly more useful than other available procedures for definitive determination of a common-based right." Stevens, 309 So.2d at 151.

In our opinion the alleged common character of the rights of the plaintiffs in this case is not sufficient to warrant use of the class action. This conclusion is supported by a practical analysis of the cause of action and the relief sought by the plaintiffs. The petition filed against NOPSI states a claim in tort, alleging failure to deliver electrical power because of specified acts of negligence and other violations of the duty NOPSI owed to the plaintiffs. The petition further alleges injury caused by NOPSI's fault, including "loss of personal and business property, broken pipes and personal discomfort." Money damages are the sole relief sought.

These allegations along with other pleadings and the depositions of the class representatives do not show that rights of a common character predominate over individual issues in this case. NOPSI's duty to its customers and NOPSI's alleged negligence or other fault is the only issue common to all claims. If that issue is resolved in favor of the plaintiffs, then each member of the class must prove: 1) that NOPSI's fault caused his individual damages, and 2) the amount of those individual damages. We recognize that a class action may be appropriate for a mass tort such as a food poisoning, toxic chemical spill or plane crash, in which the element of quantum varies from plaintiff to plaintiff. See, for example, Williams v. State. In a mass tort class...