HOGG v. CHEVRON USA. Inc. f/k/a Gulf Oil Co.

• Citation: 45 So.3d 991
• Decision Date: 03 September 2010
• Docket Number: No. 2009-CC-2632,2009-CC-2635.,2009-CC-2632
• Parties: David HOGG, John Hogg, George Hogg, III, Stephen Hogg and Sandra Defreese Hogg v. CHEVRON USA, INC. f/k/a Gulf Oil Company, E. Lee Young and E. Lee Young and Company, Inc., William Burt and ABC Insurance Company.
• Court: Supreme Court of Louisiana

45 So.3d 991

David HOGG, John Hogg, George Hogg, III, Stephen Hogg and Sandra Defreese Hogg

v.CHEVRON USA, INC. f/k/a Gulf Oil Company, E. Lee Young and E. Lee Young and Company, Inc., William Burt and ABC Insurance Company.

Nos. 2009-CC-2632, 2009-CC-2635.

Supreme Court of Louisiana.

July 6, 2010.

Rehearing Denied Sept. 3, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Oscar Price Barnes, III, for Applicant in No. 2009-CC-2632.

Barham, Warner & Bellamy, LLC, Richard G. Barham, Shreveport; Kean, Miler, Hawthorne, D'Armond, McCowan & Jarman, Leonard Louis Kilgore, III, Richard D. McConnell, Jr., Baton Rouge; Nalley & Dew, Dona Jeanne Dew, George J. Nalley, Jr., Metairie; Shotwell, Brown & Sperry, Clarence Allan Martin, III, Monroe, for Respondent in No. 2009-CC-2632.

Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Leonard Louis Kilgore, III, Richard D. McConnell, Jr., Baton Rouge; Shotwell, Brown & Sperry, Clarence Allan Martin, III, Monroe, for Applicant in No. 2009-CC-2635.

Oscar Price Barnes, III; Barham, Warner & Bellamy, LLC, Richard G. Barham, Shreveport; Nalley & Dew, George J. Nalley, Jr., Dona Jeanne Dew, Metairie, for Respondent in No. 2009-CC-2635.

WEIMER, Justice. ¹

We granted certiorari in this case to determine whether the plaintiffs' claims for damages to their immovable property resulting from the migration of gasoline from formerly leaking underground storage tanks located on neighboring property are prescribed. Finding that plaintiffs acquired constructive knowledge of the damage to their property more than one year prior to the institution of suit and that the doctrine of continuing tort does not apply to delay the commencement of prescription on plaintiffs' claims, we reverse the judgment of the district court denying the defendants' motion for summary judgment and find plaintiffs' claims have prescribed.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, David Hogg, John Hogg, George Hogg, III, Stephen Hogg and Sandra Hogg DeFreese (“the Hoggs”), own property located at 1204 Gaines Avenue in Ruston, Louisiana. The neighboring property owners are defendants, E. Lee Young and E. Lee Young and Company, Inc.(collectively, “Young”), who also own a gasoline service station located on the property. At all times pertinent to this litigation, the service station was operated by defendant, William Burt (“Burt”), as “Burt's Chevron.” The Hoggs' property is located west/northwest of Burt's Chevron.

Prior to February 1997, the service station had three underground tanks for the storage of gasoline. These tanks were allegedly provided and/or approved by defendant Chevron U.S.A., formerly known as Gulf Oil Company (“Chevron”); the stored gasoline was the property of Chevron. The tanks were replaced in 1997 after a gasoline leak from the tanks was discovered.

By letters written in December 2001 and April 2002, the Louisiana Department of Environmental Quality (“LDEQ”) informed plaintiffs and all surrounding property owners of environmental contamination in the vicinity of Burt's Chevron. The first letter, dated December 20, 2001, reported that “environmental contamination has been detected in the vicinity of Burt's Chevron,” as a result “of a leaking underground storage tank system.” The letter stated the contamination was “detected in the subsurface soil and groundwater,” migrating in a “west-northwesterly direction toward an unnamed stream that flows north of Gaines Avenue.” LDEQ reported that water samples collected from the unnamed stream, which is located on the Hoggs' property, indicated “the presence of chemicals commonly found in gasoline (i.e., Benzene, Toluene, Ethylbenzene, Xylene).” The letter specifically explained: “Due to the direction of groundwater flow, there is a possibility that gasoline may have migrated underground from the Burt's Chevron site to your property or that such migration may occur in the future.”

In a second letter, dated April 26, 2002, LDEQ transmitted to plaintiffs the results of ambient air sampling conducted as part of an ongoing investigation into the release at Burt's Chevron; the sampling revealed the presence of chemicals associated with gasoline in the area adjacent to the unnamed stream. A map attached to the letter revealed the tests were conducted on the Hoggs' property. Based on the test results, LDEQ recommended that landowners limit the time spent in the area immediately adjacent to the stream. Both LDEQ letters informed the landowners they might be contacted in the future requesting permission to access their property to determine the extent of the contamination.

On or around September 12, 2006, the Hoggs received correspondence from a company with which LDEQ had contracted requesting permission to access the Hoggs' property for purposes of conducting remediation on the property. On September 6, 2007, the Hoggs filed this tort suit against Young, Burt and Chevron, seeking damages for diminution of the value of their property, the stigma of owning contaminated property, loss of enjoyment of use of the property, and exemplary damages. ²

Responding to the petition, defendants filed motions for summary judgment asserting the plaintiffs' claims had prescribed pursuant to the one-year liberative prescription of LSA-C.C. arts. 3492 and 3493. ³ Basically, defendants argued that plaintiffs acquired, or should have acquired, knowledge of the contamination and damage to their property with the receipt of the 2001 and 2002 letters from LDEQ, but failed to file suit until 2007.

Plaintiffs opposed the motions, arguing that the letters from LDEQ are subject to more than one interpretation, making the reasonableness of plaintiffs' interpretations of and responses to those letters a disputed issue of material fact which precludes a determination via summary judgment that plaintiffs acquired or should have acquired knowledge of the contamination and damage more than one year prior to September 6, 2007. In support of their position, plaintiffs submitted extracts from their depositions which acknowledged receipt of the letters, but denied any knowledge of subsurface or groundwater contamination on their property. Further, plaintiffs argued that the presence of contamination on their property is a continuing trespass on which prescription does not begin to run until the trespass is abated. Finally, they argued the defendants' failure to remediate the contamination before it reached and damaged plaintiffs' property is a separate and distinct claim, and that knowledge of the existence of that claim was not communicated to the plaintiffs in the LDEQ letters.

Following a contradictory hearing, the district court denied defendants' motions for summary judgment, finding the existence of genuine issues of material fact regarding whether the LDEQ letters of 2001 and 2002 provided constructive knowledge of tortious conduct and damage sufficient to commence the running of prescription. The defendants sought supervisory review of the adverse ruling in the Court of Appeal, Second Circuit. A unanimous panel of the court of appeal denied writs, explaining “[u]pon the showing made, the exercise of this Court's supervisory jurisdiction is not warranted.” Hogg v. Chevron USA, Inc., 45,131(La. App. 2 Cir. 11/5/09) (unpublished).

Defendants Chevron and Young applied for supervisory review in this court. ⁴ We granted certiorari to consider whether the lower courts' denial of summary judgment was contrary to established law and jurisprudence. Hogg v. Chevron, USA Inc., 09-2632, 09-2635 (La.2/26/10), 28 So.3d 263.

DISCUSSION

Summary Judgment

Appellate courts review summary judgments de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). The summary judgment procedure, which is designed to secure the just, speedy, and inexpensive determination of civil actions, is now favored in our law. LSA-C.C.P. art. 966(A)(2). Pursuant to that procedure:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

LSA-C.C.P. art. 966(C)(2). As this court has explained, a “genuine issue” is a “triable issue,” or one as to which reasonable persons could disagree. Champagne v. Ward, 03-3211, p. 5 (La.1/19/05), 893 So.2d 773, 777. A “material fact” is a fact, the existence or non-existence of which may be essential to a cause of action under the applicable theory of recovery. Id.

Although typically asserted through the procedural vehicle of the peremptory exception, the defense of prescription may also be raised by motion for summary judgment. ⁵ Doe v. Jones, 02-2581, p. 4 (La.App. 1 Cir. 9/26/03), 857 So.2d 555, 557; Labbe Service Garage, Inc. v. LBM Distributors, Inc., 94-1043, pp. 9-10 (La.App. 3 Cir. 2/1/95), 650 So.2d 824, 829; Lasseigne v. Earl K. Long Hospital, 316 So.2d 761, 762 (La.App. 1 Cir.1975); Duhon v. Boustany, 239 So.2d 180, 181 (La.App. 3 Cir.1970). See also, Alcorn v. City...