Ford v. Murphy Oil U.S.A., Inc.

• Decision Date: 09 September 1997
• Citation: 703 So.2d 542
• Parties: 96-2913 La
• Court: Louisiana Supreme Court

Page 542

703 So.2d 542

96-2913 La. 9/9/97

Kenneth E. FORD, et al. v. MURPHY OIL U.S.A., INC., et al.

Nos. 96-C-2913, 96-C-2917 and 96-C-2929.

Supreme Court of Louisiana.

Sept. 9, 1997.

Charles S. McCowan, Jr., James P. Dore, Glenn M. Farnet, Baton Rouge, Donald F. Woods, Jr., Los Angeles, CA, Dewey Ballantine, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Baton Rouge, for Applicant in No. 96-C-2913.

George A. Frilot, III, James F. Shuey, Kenneth A. Mayeaux, Frilot, Partridge, Kohnce & Clements, New Orleans, for Applicant in No. 96-C-2917.

Nicholas F. Noriea, Jr., Gainsburgh, Benjamin, David, Meunier, Noriea & Warshauer; New Orleans, Gilbert V. Andry, III, Andry & Andry; New Orleans, Sidney D. Torres, III, Roberta L. Burns, Gerald E. Meunier, New Orleans, for Applicant in No. 96-C-2929.

George A. Frilot, James F. Shuey, Kenneth A. Mayeaux, Frilot, Partridge, Kohnce & Clements; New Orleans, Nicholas F. Noriea, Jr., Gainsburgh, Benjamin, David, Meunier, Noriea & Warshauer; New Orleans, Gilbert V. Andry, III, Andry & Andry; New Orleans, Julie A. Scheib, Sessions & Fishman; New Orleans, Mark S. Embree, Robert E. Couhig, Sam A. LeBlanc, III, Adams & Reese; New Orleans, Walter C. Thompson, Jr., Mark P. Seyler, Barkley & Thompson; New Orleans, Sidney D. Torres, III, Donald F. Woods, Jr., Los Angeles, CA, Hal C. Welch, New Orleans, Lemle & Kelleher; New Orleans, Roberta L. Burns, Gerald E. Meunier, Valeria M. Sercovich, New Orleans, for Respondent in No. 96-C-2913.

Charles S. McCowan, Jr., James P. Dore, Glenn M. Farnet, Baton Rouge, Donald F. Woods, Jr., Los Angeles, CA, Dewey Ballantine, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman; Baton Rouge, Nicholas F. Noriea, Jr., Gainsburgh, Benjamin, David, Meunier, Noriea & Warshauer; New Orleans, Gilbert V. Andry, III, Andry & Andry; New Orleans, Julie A. Sheib, Sessions & Fishman; New Orleans, Mark S. Embree, Robert E. Couhig, Sam A. LeBlanc, III, Adams & Reese; New Orleans, Walter C. Thompson, Mark P. Seyler, Barkley & Thompson; New Orleans, Sidney D. Torres, III, Donald F. Woods, Jr., Los Angeles, CA, Hal C. Welch, New Orleans, Lemle & Kelleher; New Orleans, Roberta L. Burns, Gerald E. Meunier, Valeria M. Sercovich, New Orleans, for Respondent in No. 96-C-2917.

George A. Frilot, James F. Shuey, Kenneth A. Mayeaux, Frilot, Partridge, Kohnce & Clements; New Orleans, Charles S. McCowan, Jr., James P. Dore, Glenn M. Farnet, Baton Rouge, Donald F. Woods, Jr., Los Angeles, CA, Dewey Ballantine, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman; Baton Rouge, Julie A. Scheib, Sessions & Fishman; New Orleans, Mark S. Embree, Robert E. Couhig, Jr., Sam A. LeBlanc, III, Adams & Reese; New Orleans, Walter C. Thompson, Jr., Mark P. Seyler, Barkley & Thompson; New Orleans, Donald F. Woods, Jr., Los Angeles, CA, Hal C. Welch, New Orleans, Lemle & Kelleher; New Orleans, Valeria M. Sercovich, New Orleans, Alan J. Berteau, Baton Rouge, for Respondent in No. 96-C-2929.

Rachalle D. Dick, Amanda A. Giering, Baton Rouge, for Amicus Curiae Louisiana Chemical Association and Louisiana Association of Business and Industry.

[96-2913 La. 2] VICTORY, Justice.

We granted writs to determine whether the lower courts were correct in certifying this action as a class action. After reviewing the record, we hold that this action is inappropriate for class certification.

FACTS AND PROCEDURAL HISTORY

On June 25, 1990, six class representatives living in St. Bernard and Orleans Parishes filed a "Class Action Petition for Damages" in the 34th Judicial District Court, St. Bernard Parish, against four petrochemical plants located along the Mississippi River from Chalmette to Meraux, Louisiana. The petition was amended several times and now includes 26 class representatives, ¹ who have filed suit on behalf of thousands of residents who live near the four petrochemical plants and who claim physical and property damages as a result of the continuous emissions, combined and individual, of the defendant companies since 1989. Plaintiffs allege in their "Third Supplemental and Amending Class Action Petition for Damages" as follows:

The individual and/or combined activities of the defendants render them liable, jointly and in solido, unto petitioners for damages prayed for herein, each having caused or contributed and each continuing to cause or contribute to a condition or situation which significantly and materially affected and/or affects petitioners' legally protectable rights by virtue of a synergistic accumulation or combination of releases emissions, disbursements, placement, seepage, drainage, migration or otherwise non-consensual placing of pollutants on the exclusive properties or persons of the petitioners, which causes and continue to cause petitioners' loss, injury and damage, including but not limited to the following items of damage.

Plaintiffs also complain of noise, odor, heat, dust and flare releases from the individual defendants resulting in personal, property and business losses.

The named defendants are Murphy Oil USA, Inc., Mobil Oil Corporation, ChemCat Corporation and Calciner Industries, Inc. The Mobil facility, located in Chalmette, is a fully integrated oil refinery that Mobil has operated since December, [96-2913 La. 3] 1988, when Mobil purchased the facility from Tenneco. The Murphy facility, located in Meraux, is also a fully integrated oil refinery in operation since 1961. ChemCat, a smaller facility which is no longer in operation, regenerated spent catalyst. Calciner is a smaller facility which produces calcined coke by using a rotary kiln to heat green coke to remove moisture and impurities. The emissions of each defendant are different and the four companies are completely independent of each other. Although the emissions of the defendant companies have met all standards of the Louisiana Department of Environmental Quality and of the federal Clean Air Act, plaintiffs claim that the release of these emissions constitutes a nuisance under Louisiana Civil Code articles 667-669 and is negligent under 2315 and 2315.1.

In April of 1994, the trial court entered a judgment certifying a class action against Murphy and Mobil, but not ChemCat and Calciner. The trial court also ruled that the class would be divided into two subclasses with the geographic perimeters to be determined at a later date. On August 28, 1996, the Fourth Circuit affirmed, but held that the trial court erred in failing to define the geographic perimeters of the class. Ford v. Murphy Oil USA, 94-1218 (La.App. 4th Cir. 8/28/96), 681 So.2d 401. The Fourth Circuit defined the class as follows:

Those residents, property owners, and business owners in the St. Bernard Parish communities of Arabi, Chalmette, and Meraux, extending eastward to the Violet Canal, and that portion of Algiers directly across the Mississippi River bounded to the west by Holiday Drive, to the south by General deGaulle, and to the east by the Algiers Canal, who allege that they have sustained personal injury or property damage caused by the emission of hazardous, toxic, corrosive, or noxious odors, fumes, gases, or particulate matter as a result of the violation of Articles 667-669, 2315 and 2315.1 of the Louisiana Civil Code by Murphy Oil USA, Inc. and Mobil Oil Corporation.

Id. 681 So.2d at 409. We granted writs filed by plaintiffs and by Mobil and Murphy to determine whether the lower courts were correct in certifying the class against Mobil and Murphy [96-2913 La. 4] and denying certification against ChemCat and Calciner. Ford v. Murphy Oil USA, Inc., 96-2913, 96-2917, 96-2929 (La.2/7/97), 688 So.2d 483.

DISCUSSION

The class action is a nontraditional litigation procedure permitting a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common or general interest to persons so numerous as to make it impracticable to bring them all before the court. See Herbert B. Newberg & Alba Conte, 1 Newberg on Class Actions, § 1.01, p. 1-2, 1-3 (3d ed.1992). 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 representatives who 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 from the class action.

The class action originated in eighteenth century English equity courts, as an exception to the rule that joinder of all interested parties was necessary to obtain complete justice. In the United States, the class action procedure was available only in equity until 1938 when the Federal Rules of Civil Procedure were enacted. Original Rule 23 ² recognized the "true" class action, which concluded the rights of all class members, whether named in the suit or not; the "hybrid" class action, in which class members made separate claims against a common fund or property; and the "spurious" [96-2913 La. 5] class action, in which the members of the class made separate claims involving common questions of law or fact. The "true" class action was described by original Rule 23(a) as an action in which "the right to enforcement for ... the class was ... joint, or common, or secondary in the sense that the owner of primary right refuses to enforce it and class member thus becomes entitled to enforce it." As opposed to judgments in "true" class actions, judgments in "spurious" and "hybrid" class actions did not determine the rights of absent class members.

In 1961, Louisiana enacted Articles 591-597 of the Code of Civil Procedure, modeled after original Federal Rule 23. However, the redactors of the Code of Civil Procedure rejected the hybrid and spurious class action models, authorizing only "true" class actions. La. C.C.P. art. 591, Comment (c). ³ In 1966, Federal Rule 23 was amended, eliminating the three...