Elliott v. EL Paso Corp.

• Decision Date: 03 September 2015
• Docket Number: 2013–IA–01338–SCT.,Nos. 2013–CA–01173–SCT,s. 2013–CA–01173–SCT
• Citation: 181 So.3d 263
• Parties: Reggie ELLIOTT, Brenda Ejimofor, as Co–Administrator and Co–Administratrix of the Estate of Joe Elliott, Deceased: Orlando Elliott, Frankie Mitchell, as Co–Guardians of Olandrea Elliott, a Minor; Michael Elliott and Alma Elliott v. EL PASO CORPORATION, Tennessee Gas & Pipeline Company and Chevron Phillips Chemical Company, LP. Tri–State Meter and Regulator Service, Inc. v. Reggie Elliott and Brenda Ejimofor as Co–Administrator and Co–Administratrix of the Estate of Joe Elliott, Deceased, Orlando Elliott and Frankie Mitchell as Co–Guardians of Olandrea Elliot, A Minor, Michael Elliott and Alma Elliott, Chevron Phillips Chemical Company, LP and Allstate Insurance Company.
• Court: Mississippi Supreme Court

181 So.3d 263

Reggie ELLIOTT, Brenda Ejimofor, as Co–Administrator and Co–Administratrix of the Estate of Joe Elliott, Deceased: Orlando Elliott, Frankie Mitchell, as Co–Guardians of Olandrea Elliott, a Minor; Michael Elliott and Alma Elliott

v.EL PASO CORPORATION, Tennessee Gas & Pipeline Company and Chevron Phillips Chemical Company, LP.

Tri–State Meter and Regulator Service, Inc.

v.Reggie Elliott and Brenda Ejimofor as Co–Administrator and Co–Administratrix of the Estate of Joe Elliott, Deceased, Orlando Elliott and Frankie Mitchell as Co–Guardians of Olandrea Elliot, A Minor, Michael Elliott and Alma Elliott, Chevron Phillips Chemical Company, LP and Allstate Insurance Company.

Nos. 2013–CA–01173–SCT

2013–IA–01338–SCT.

Supreme Court of Mississippi.

Sept. 3, 2015.

Rehearing Denied Dec. 10, 2015.

Casey L. Lott, Jesse Mitchell, III, Ken F. Fitzgerald, Barbrae Lundberg, attorneys for appellants (No. 2013–CA–01173–SCT).

Orlando Rodriquez Richmond, Sr., Christy D. Jones, Michael E. McWilliams, Mark Alan Dreher, John Jeffrey Trotter, Bernard H. Booth, IV, Jason M. Zager, Paul A. Williams, attorneys for appellees (No. 2013–CA–01173–SCT).

Jay Marshall Atkins, H. Case Embry, attorneys for appellants (No. 2013–IA–01338–SCT).

Casey L. Lott, Jesse Mitchell, III, Ken F. Fitzgerald, Barbrae Lundberg, attorneys for appellees (No. 2013–IA–01338–SCT).

Before DICKINSON, P.J., PIERCE AND COLEMAN, JJ.

DICKINSON, Presiding Justice, for the Court:

¶ 1. A city pipeline buried beneath a road leaked odorless natural gas which infiltrated a nearby home, causing an explosion. Residents—who were not natural gas customers—alleged that the natural gas lacked its distinctive rotten egg smell, and that the odorant that is designed to provide the warning odor was defective because it faded. After reviewing Plaintiffs' products-liability and assorted negligence claims against the odorant manufacturer, odorant distributor, and transmission pipeline, we conclude that these claims fail as a matter of law. We affirm the circuit court's grant of summary judgment to the odorant manufacturer and transmission pipeline, and we reverse the circuit court's denial of the odorant distributor's motion for summary judgment and render judgment in its favor.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 8, 2008, Joe and Alma Elliott's home in Holly Springs, Mississippi, caught fire, which started in Joe and Alma's bedroom near a propane heater, and quickly spread to the ceiling, prompting the Elliotts to evacuate. As Joe, Alma, their grandson Michael, and their infant granddaughter Olandrea—whom Michael was carrying—tried to escape through the front door, the house exploded, killing Joe and seriously injuring Alma, Michael, and Olandrea.

¶ 3. When the fire started, the Elliotts' home was filled with high levels either of propane or natural gas. But neither Alma nor Michael recalled smelling natural gas or propane gas before the explosion. The Elliotts had a propane gas tank that supplied propane heaters throughout their home. And although the Elliotts did not use or purchase natural gas, the Holly Springs Utility Department maintained an odorized natural gas distribution pipeline running underneath Cuba Street in front of their home.

¶ 4. The morning after the explosion, an investigator noticed "some bubbling coming out of [a] crack in the [Cuba Street] asphalt," about "60 to 70 feet away from the house." The utility department later determined that its natural gas pipeline underneath Cuba Street was fractured. And soil tests revealed the presence of natural gas in the Elliotts' front yard.

¶ 5. The smell associated with natural gas—which is odorless, tasteless, and colorless—actually comes from an odorant that is added for safety purposes. Natural-gas pipeline distributors are required by federal regulation to inject this odorant, usually a mercaptan-based odorant, into natural gas so people can smell a gas leak.¹ Of course, the odorant works as an effective warning device only when people actually smell it. The Elliotts' expert believes the fractured pipeline allowed natural gas to infiltrate their home and that a phenomenon known as odorant fade explains why the Elliotts did not smell the odorant in the natural gas.

¶ 6. All natural gas odorants can fade for various reasons, making the presence of natural gas impossible to detect. Odorant fade can occur as a result of oxidation or adsorption when odorized natural gas migrates through soil.² So the Elliotts' expert theorizes that natural gas odorant fade occurred when the fugitive natural gas migrated underneath the Elliotts' front yard.

¶ 7. Following the explosion, the Elliotts sued the Holly Springs Utility Department ("HSUD") under the Mississippi Tort Claims Act,³ Tennessee Gas Pipeline and its parent company El Paso Corporation ("TGP"), Tri–State Meter and Regulator Service, Inc. ("Tri–State"), Chevron Phillips Chemical Company, LP ("CPChem"), who was joined as a defendant in March 2012 in Plaintiffs' Fifth Amended Complaint, and Amerigas Propane, LP, who Plaintiffs freely admit has been joined as a defendant only to avoid an "empty chair defense at trial." This case involves only the Elliotts' claims against CPChem, Tri–State, and TGP. The plaintiffs have settled their claims against the utility department.

¶ 8. CPChem manufactures odorant, including the Scentinal S–20 odorant used by the utility department. Tri–State, a regional distributor of CPChem's odorant, sells Scentinal S–20 odorant to the utility department, which also contracts with Tri–State to help it prepare its required public education program and provide natural-gas training to its employees. TGP operates an interstate natural-gas pipeline network, which transports deodorized natural gas to a transfer point on the outskirts of Holly Springs, known as the "city gate" junction, which is several miles from the Elliotts' home. The deodorized natural gas is then transferred to the utility department's distribution pipeline, where the utility department injects Scentinal S–20 odorant into the natural gas before transmitting the gas to its customers.

¶ 9. The Elliotts have asserted negligence, strict liability, and products liability claims against CPChem, TGP, and Tri–State. They seek recovery of damages caused by odorant fade and punitive damages. The Elliotts argue that all defendants had a duty to warn the affected public about the dangers of odorant fade and the need for the affected public to utilize in-home gas detectors.

¶ 10. CPChem, Tri–State, and TGP filed motions for summary judgment in the circuit court. The circuit court, without elaboration, granted CPChem's and TGP's motions for summary judgment but denied those filed by Tri–State and Amerigas. The Elliotts appealed the summary judgments, and we granted Tri–State's petition for permission to file an interlocutory appeal of the trial court's denial of summary judgment. We then consolidated the cases.

ANALYSIS

¶ 11. The issue presented is whether CPChem, Tri–State, and TGP, or any of them, are entitled to summary judgment. We review a trial court's grant or denial of a motion for summary judgment de novo, viewing all material facts and inferences in the light most favorable to the nonmovant.⁴ Where, as here, the nonmovant is the plaintiff who bears the burden of proof at trial, the nonmovant must produce "supportive evidence of significant and probative value" to avoid summary judgment.⁵ If the nonmovant fails in this task, and there are no genuine issues of material fact, summary judgment should be granted as a matter of law.⁶

¶ 12. Bearing in mind these standards, we now analyze the Elliotts' negligence and strict-liability-based claims, products-liability claims, and punitive-damages claims to determine whether there are any genuine issues of material fact that preclude summary judgment.

I. Plaintiffs' negligence and strict-liability claims fail as a matter of law.

¶ 13. The Elliotts have asserted numerous negligence and strict-liability claims against CPChem, Tri–State, and TGP, most of which are for damages caused by odorant fade, although the Elliotts allege that Tri–State also was negligent in failing to train the utility department about odorant fade and in negligently drafting the utility department's public-awareness program and including information about odorant fade. Still, odorant fade is a recurring theme in all of these claims.

A. The MPLA provides the framework for analyzing plaintiffs' negligence and strict-liability claims based on odorant fade.

¶ 14. To properly analyze the Elliotts' negligence and strict-liability claims, we must look to the Mississippi Products Liability Act (MPLA) that applies "in any action for damages caused by a product,"⁷ with deviation defects,⁸ warnings or instruction defects,⁹ design defects,¹⁰ and where a product breached an express warranty.¹¹ Subsection (a)(i)-(iii) establishes the plaintiff's prima facie elements in this case.¹²

¶ 15. In interpreting and applying the MPLA, we have explained that "the MPLA provides the exclusive remedy" for products-liability claims,¹³ and "since [the enactment of the MPLA], products-liability claims have been specifically governed by statute, and a claimant, in presenting his case, must pay close attention to the elements of the cause of action and the liability limitations enumerated in the statute."¹⁴ In other words, the MPLA has abrogated products-liability claims based on strict-liability or negligence theories, and the MPLA now provides the roadmap for such claims.¹⁵

¶ 16. Plaintiffs, citing language from O'Flynn v. Owens–Corning Fiberglass,¹⁶ repeat throughout their brief that "[u]nder Mississippi law, victims of defective products with inadequate warnings may bring negligence actions—separate and apart from claims under the MPLA—against the responsible parties, although courts have applied what is essentially a negligence analysis in MPLA failure to warn cases." We read O'Flynn and the MPLA differently.

¶ 17....