Dupree v. Texas Eastern Corp.

Decision Date25 June 1986
Docket NumberCiv. A. No. 84-1163-A,85-1092-A.
Citation639 F. Supp. 463
PartiesSusan Ball DUPREE, v. TEXAS EASTERN CORP., et al. consolidated with: TEXAS EASTERN TRANSMISSION CORPORATION, et al. v. CLARKCO CONTRACTORS, INC.
CourtU.S. District Court — Middle District of Louisiana

H. Alston Johnson, III, Phelps, Dunbar, Marks, Claverie & Sims, Baton Rouge, La., Esmond Phelps, II, Clayton G. Ramsey, Phelps Dunbar, Marks, Claverie & Sims, New Orleans, La., for plaintiff, Texas Eastern.

Felix R. Weill, William C. Kaufman, III, Seale, Smith & Phelps, Baton Rouge, La., for defendant, Clarkco.

Edwin K. Theus, Jr., Theus, Grisham, Davis & Leigh, Monroe, La., for third party defendant-Mary Lou Trawick Winters.

Clarence A. Frost, Faris, Ellis, Cutrone & Gilmore, New Orleans, La., for third party defendant-Lloyds of London.

William L. Schuette, Jr., Franklin, Moore & Walsh, Baton Rouge, La., for defendant, New Hampshire Ins. Co.

JOHN V. PARKER, Chief Judge.

This matter is before the court on the motion of third party defendant, Mary Lou Trawick Winters, to dismiss or alternatively, for summary judgment on the third party claims of Clarkco. The motion is not formally opposed, although Clarkco has moved to dismiss the third party demand without prejudice. No oral argument is necessary. This court has jurisdiction over the subject matter by virtue of 28 U.S.C. § 1332, all plaintiffs and all defendants being of diverse citizenship.

These actions arise out of a natural gas pipeline explosion which occurred on November 25, 1984, in West Feliciana Parish, Louisiana. The pipeline was owned and operated by Texas Eastern, and Clarkco was performing certain relocation work on the pipeline under a contract with Texas Eastern. The explosion caused death and personal injury and significant damage to property. The land upon which the pipeline was located was owned by third party defendant Winters. Clarkco, a defendant in this action to claims by Texas Eastern and also a defendant in actions filed by persons injured, asserts third party claims against Winters solely because of her ownership of the land upon which the Texas Eastern pipeline was located.

The motion is directed to two third party claims, asserted by defendant, Clarkco, against Mrs. Winters. One is a claim by Clarkco to recover damages to its property from the pipeline explosion which occurred. The other claim seeks indemnity or contribution for any damages which Clarkco might be found to owe to the plaintiffs. The court has reviewed the affidavit of Mrs. Winters and other documentary evidence submitted in support of the motion, and thus will treat it as a motion for summary judgment.

The undisputed facts relevant to this motion are that Mrs. Winters owned an interst in certain land in West Feliciana Parish, Louisiana, upon which a servitude was granted to Texas Eastern. Under an agreement dated May 26, 1955, Mary Lou Trawick and Thomas Steen Trawick granted to Texas Eastern, "... a right of way and easement to construct, lay, maintain, operate, alter, repair, remove, change the size of, and replace pipe lines and apourtenances thereto (including without limitation Corrosion Control equipment) for the transportation of oil, gas, petroleum products or any other liquids, cases, or substances which can be transported through pipe lines, the Grantee to have the right to select, change, or later the route under, upon, over and through" the land described. A gas pipeline has been constructed by Texas Eastern within that right-of-way. The pipeline was owned and operated by Texas Eastern as a part of its interstate natural gas pipeline system. Mrs. Winters did not own or have custody or control of the pipeline in any way. The pipeline exploded on November 25, 1984, causing serious damage to persons and property. The pleadings in this matter state only general allegations of negligence or strict liability on the part of Mrs. Winters; no factual statements are included, nor have any been offered by way of opposition to this motion.

Summary judgment is appropriate under Fed.R.Civ.P. 56(c) when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." The moving party has the burden of showing that these conditions are satisfied, United States Steel Corp. v. Darby, 516 F.2d 961 (5th Cir.1975), and in ruling on the motion, the court must look to the full record, including pleadings, affidavits, and other documentary evidence on file. Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir.1983). When the party moving for summary judgment supports his motion with sworn matter, the opponent bears the burden of presenting affidavits or other evidence sufficient to create a genuine issue of material fact. The opposing party cannot rest on general allegations in his pleadings. Golden Oil Co., Inc. v. Exxon Co., U.S.A., 543 F.2d 548 (5th Cir.1976). However, even when no opposing affidavits are presented to the court, the duty of establishing the absence of a genuine issue of material fact remains with the moving party. Boazman v. Economics Laboratory, Inc., 537 F.2d 210 (5th Cir. 1976).

A so-called pipeline right-of-way is a predial servitude under Louisiana law, one established upon one estate for the benefit of another estate. Article 646, Louisiana Civil Code of 18701; Nash v. Whitter, 326 So.2d 856 (La.1976). The creation of such a servitude is an alienation of a part of the property. Art. 731, La.CC.1870. The owner...

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2 cases
  • Brister v. Gulf Cent. Pipeline Co., Civ. A. No. 82-1069 to 82-1089
    • United States
    • U.S. District Court — Western District of Louisiana
    • April 28, 1988
    ...to indicate its location; unmarked gas pipeline created an unreasonable risk of harm to third persons). Cf. Dupree v. Texas Eastern Corp., 639 F.Supp. 463 (M.D.La.1986). Because of the hazardous nature of anhydrous ammonia to individuals and property, this particular vice created an unreaso......
  • Transcontinental v. 118 Acres of Land
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • June 19, 1990
    ...and state law. States and the federal government have concurrent authority over interstate natural gas companies. Dupre v. Texas Eastern Corp., 639 F.Supp. 463 (M.D.La. 1986). The court has considered the elements of expropriation under both federal and state law, and holds that Transco has......

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