Lafleur v. Entergy, Inc.

• Decision Date: 09 December 1998
• Docket Number: No. 98-344.,98-344.
• Citation: 737 So.2d 761
• Parties: Dwayne and Lynn LAFLEUR, Individually, and as Representatives of a Class of Those Similarly Situated, Plaintiffs-Appellants v. ENTERGY, INC., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

737 So.2d 761

Dwayne and Lynn LAFLEUR, Individually, and as Representatives of a Class of Those Similarly Situated, Plaintiffs-Appellants v. ENTERGY, INC., et al., Defendants-Appellees.

No. 98-344.

Court of Appeal of Louisiana, Third Circuit.

December 9, 1998.

William B. Baggett, Clayton Arthur Larsh Davis, Ernest C. Hunt, Jr., Lake Charles, Bernard Hugh McLaughlin, Jr., Hunter William Lundy, Robert C. McCall, James D. Cain, Jr., Jamie B. Bice, and Erin M. Alley, Lake Charles, for Dwayne and Lynn Lafleur, Indiv.

Kenneth Paul Carter, New Orleans, John B. Scofield, Lake Charles, and Eugene G. Taggart, New Orleans, for Energy, Inc. and Eduardo Melendreras.

Before DOUCET, C.J., and YELVERTON and AMY, JJ.

AMY, Judge.

This proposed class action is consolidated with three similar actions arising from a winter storm affecting southwest Louisiana in January 1997. The plaintiffs, residential and business property owners, allege damages as a result of power outages during the storm. Named as defendants in the class action are Entergy Corporation and its subsidiary, Entergy/Gulf States, Inc. The lower court denied class certification finding individual issues outweighed those common to the purported class. The plaintiffs appeal asserting that common issues of law and fact predominate. For the reasons which follow, we affirm.

Factual and Procedural Background

The instant matter stems from a winter storm affecting the southwest part of Louisiana for several days in January 1997. During this time period, the area encountered problems due to freezing precipitation. Estimates of accumulated precipitation during the winter storm ranged from .78 inches to as much as three inches. Following the storm, four petitions were filed by plaintiffs alleging damages sustained due to storm-related power outages.¹ Entergy Corporation and its subsidiaries were named as defendants in the four actions (hereinafter referred to collectively as Entergy). These four actions, two of which were comprised of business/commercial customers and two of which were comprised of residential customers, were subsequently consolidated for the lower court's consideration.

In the petitions instituting this matter, the plaintiffs allege that Entergy was inadequately prepared for the winter storm and, further, that the attendant power outages were caused by Entergy's inadequate vegetation maintenance along the power lines, i.e., inadequate tree-trimming. In the plaintiffs' pre-trial memorandum in support of their Motion for Class Certification, the plaintiffs argued that Entergy should have anticipated the storm and been better prepared for outages and, further, stated that "Entergy [was] negligent in failing to properly maintain its transmission and distribution systems, as well as having an inadequate vegetation management program in place." The plaintiffs alleged that "Entergy's failure in these areas contributed to the massive power outages suffered by residential and business/commercial customers, as well as prolonged the restoration of electrical service to these customers."

At the time of the plaintiffs' memorandum in support of their Motion for Class Certification, the plaintiffs maintained that two classes were required as follows:

All residents and domiciliaries who were customers receiving electrical service from defendant, Entergy, Inc., on or about Sunday, January 12, 1997, who are within Network 10² of Entergy's southwest franchise, whose power was unexpectedly and abruptly interrupted.

All businesses and/or commercial entities who were customers receiving electrical service from defendant, Entergy, Inc., on or about Sunday, January 12, 1997, who are within Network 10 of Entergy's southwest franchise, whose power was unexpectedly and abruptly interrupted.

The plaintiffs asserted that the matter was appropriate for class certification as the plaintiffs were so numerous as to make joinder inappropriate, the individual claims associated with the action were insubstantial, and that the plaintiffs shared common causation issues as the outages were due primarily to power outages caused by Entergy's inadequate vegetation maintenance.

Following a hearing lasting several days, the trial court denied certification, vacated the order of consolidation, and noted that, pursuant to La.Code Civ.P. art. 593.1, amendment of the pleadings would be allowed to permit maintenance as ordinary proceedings. In written reasons for ruling, the trial court noted that, although commonality existed as to some aspects of the plaintiffs' case, class certification was inappropriate as the plaintiffs failed to prove that any breach of duty by the defendant was common as to the members of the putative class. The trial court pointed to testimony indicating that there were a variety of causes for power outages during the storm. Following the denial of class certification, the plaintiffs' filed a motion for reconsideration or new trial. Alternatively, the plaintiffs asked that the trial court certify a more limited class. Namely, the plaintiffs asked that the class be certified "to all those residents and commercial businesses that were out of power for more than twelve hours and whose power outage was a result of a feeder being rendered useless due to a fallen tree and/or tree limb within the Entergy/GSU right of way and/or jurisdiction." This motion was subsequently denied by the trial court.

The plaintiffs appeal asserting the following assignments of error:

1. The district court erred in denying plaintiffs/appellants' motion for class certification.

2. The district court erred in denying plaintiffs/appellants' motion for reconsideration and/or new trial for a more limited class.

Discussion

Denial of Class Certification

In their first assignment of error, the plaintiffs maintain that they offered sufficient proof of each of the factors required for a class action and, therefore, the trial court erred in denying class certification.

As explained by the Louisiana Supreme Court in Ford v. Murphy Oil U.S.A., Inc., 96-2913, p. 4 (La.9/9/97); 703 So.2d 542, 544, class actions are a nontraditional litigation procedure which allow 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."

At the time this matter was filed, La.Code Civ.P. art. 591³ provided as follows:

A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to be joined as parties, and the character of the right sought to be enforced for or against the members of the class is:

(1) Common to all members of the class; or

(2) Secondary, in the sense that the owner of a primary right refuses to enforce it, and a member of the class thereby becomes entitled to enforce the right.

La.Code Civ.P. art. 592 instructed that:

One or more members of a class, who will fairly insure the adequate representation of all members, may sue or be sued in a class action on behalf of all members.

Thus, it is apparent that, in order to obtain class certification, Articles 591 and 592 require the presence of the following elements: "(1) a class so numerous that joinder is impracticable; (2) the joinder of parties who are members of the class and able trove adequate representation for absent members; and (3) a "common" character among the rights of the representatives of the class and the absent class members." Andry v. Murphy Oil, U.S.A., Inc., 97-0793, p. 3 (La.App. 4 Cir. 4/1/98); 710 So.2d 1126, 1129, writ not considered., 98-1204 (La.6/19/98); 719 So.2d 473, writs denied, 98-1158 (La.6/19/98); 720 So.2d 1213; 98-1178 (La.6/19/98); 720 So.2d 1214.

In the present matter, the trial court provided written reasons for ruling and, after noting that the purported class met the numerosity requirement, focused on the commonality requirement. Finding that the plaintiffs had not met their burden as to this element, the lower court explained, in part, as follows:

In the instant case, absolute commonality exists in some areas. There was an ice storm. The ice storm affected all the members of the putative class. There were power outages. The power outages affected all members of the putative class. Entergy/GSU had a duty to provide electrical service to all the members of the putative class.

These common issues are not sufficient in and of themselves to justify a finding of commonality because, henceforth, the common issues are not clear. As to each member of the class, the Plaintiffs must prove a breach of duty by Entergy/GSU. Each member must show that Entergy/GSU's breach of duty caused the individual damages and the amount of individual damages.

The Plaintiffs have failed to carry their initial burden of proving that a breach of duty by Entergy/GSU was pervasive enough within the putative class to be considered common. Rank speculation would be required to conclude that the entire putative class suffered all of its damages due to the negligence of Entergy/GSU in the power outages or restoration. Furthermore, Entergy/GSU has put forward plausible, substantiated, alternate causes of the power outages for which Entergy/GSU was not at fault.

Without doubt, fallen trees and tree limbs or lines caused a great number of outages. However, each class member in this category of outage cause would have to prove that the "offending" tree was under Entergy/GSU's "jurisdiction." Additionally, issues such as the contribtary negligence of the class member, other class members, or third parties in interfering with Entergy/GSU's tree trimming efforts would have to be determined.

The evidence adduced through the testimony of Dudley Clark, Todd Kyle, and Dr. Frederick Brooks showed numerous other causes of the outages caused by the ice storm which...