LESTER v. EXXON MOBIL Corp.

• Decision Date: 02 September 2010
• Docket Number: No. 09-CA-1105.,09-CA-1105.
• Citation: 42 So.3d 1071
• Parties: Warren LESTER, et al v. EXXON MOBIL CORPORATION, Chevron USA, Inc., Intracoastal Tubular Services, Inc., Alpha Technical Services, Inc., OFS, Inc., et al.
• Court: Court of Appeal of Louisiana — District of US

42 So.3d 1071

Warren LESTER, et al v. EXXON MOBIL CORPORATION, Chevron USA, Inc., Intracoastal Tubular Services, Inc., Alpha Technical Services, Inc., OFS, Inc., et al.

No. 09-CA-1105.

Court of Appeal of Louisiana, Fifth Circuit.

June 29, 2010.

Rehearing Denied September 2, 2010.

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Frank M. Buck, Jr., Attorney at Law, John Clegg, Barry & Piccione, Attorney at Law, New Orleans, Louisiana, Jeremiah A. Sprague, Timothy J. Falcon, Falcon Law Firm, Attorneys at Law, Marrero, Louisiana, for Plaintiff/Appellants.

Glen M. Pilie, Charles F. Gay, Jr., Martin A. Stern, Donald C. Massey, Valeria M. Sercovich, Raymond P. Ward, Adams & Reese, Attorneys at Law, New Orleans, Louisiana, Louis C. Woolf, Howard E. Jarvis, Woolf, McClane, Bright, Allen, & Carpenter, Knoxville, Tennessee, for Defendant/Appellee.

Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MARC E. JOHNSON.

CLARENCE E. McMANUS, Judge.

Plaintiffs originally filed these cumulated actions seeking to recover damages for personal injuries suffered as a result of exposure to radioactive material that accumulated in pipes used in oil production. In re Harvey Term Litigation was filed on May 10, 2002, and Warren Lester, et al v. Exxon Mobil Corp., (hereinafter Warren Lester) was filed on December 20, 2002, both in Civil District Court for the Parish of Orleans. Class certification of In Re Harvey Term Litigation was denied by the Civil District Court on April 14, 2008.

During the pendency of litigation, Civil District Court determined that the plaintiffs would be tried in flights according to pipeline location. A flight of 26 plaintiffs, who were allegedly exposed at the ITCO pipeline at Harvey, Louisiana, were severed and transferred to the 24th Judicial District Court (the instant case) on March 23, 2006.

On February 20, 2009, Olivia Bailey, et al c. Exxon Mobil Corp., et al, a wrongful death action, was filed in Civil District Court. Plaintiffs in that case included Evelyn Gautreaux and Donna Lee Meerman, who asserted wrongful death claims for their husbands, Murphy Gauthreaux and Leonardus Meerman. On March 16, 2009, Olivia Bailey, et al c. Exxon Mobil Corp., et al was filed in the 24th Judicial District Court, raising the same claims as the Olivia Bailey case in Civil District Court.

On April 30, 2009, the trial court in this case granted plaintiffs' motion for leave to file a "Clarifying and Amending petition," (hereinafter referred to as Clarifying Petition). Plaintiffs filed their Clarifying Petition into the record on May 5, 2009. This petition raises the same claims by Mrs. Meerman and Mrs. Gauthreaux for the wrongful death of their husband as was raised in the Olivia Bailey petition. This petition further raises the claims of Mr. Gauthreaux's children for his wrongful death.

Thereafter, defendants Exxon Mobil Corporation (Exxon) and ITCO filed exceptions of lis pendens and prescription, addressed to the Clarifying Petition. These exceptions were granted by the trial court. Plaintiffs have appealed from that decision.

In brief, appellee Exxon argues that the appeal should be dismissed as the judgment is not final for purposes of immediate appeal. We have already considered this issue and found that the judgment is a final judgment for purposes of immediate appeal. See Lester v. Exxon Mobil Corp., 09-679 (La.App. 5 Cir. 8/17/09) (unpublished writ.)

Initially, we note that the trial court made two threshold determinations that were necessary to the determination of the exceptions before it. First the court considered whether the plaintiffs effectively opted out of the class action by the filing of their petition for damages prior to the court ruling on class certification.¹ The court also considered whether the Clarifying Petition would relate back to the original Warren Lester petition.

94 S.Ct. 756, 38 L.Ed.2d 713 (1974). In American Pipe, the Court held that "the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status." American Pipe, 414 U.S. at 553, 94 S.Ct. 756. The Supreme Court later extended this rule when it considered the issue of whether all members of the putative class should be allowed to file individual actions in the event that class certification is denied, and found that "Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action." Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 354, 103 S.Ct. 2392, 2397-2398, 76 L.Ed.2d 628 (1983). These cases however, did not discuss the issue of whether a plaintiff who files an action before class certification is denied is also entitled to benefit from tolling.

In Fezzani v. Bear, Stearns & Co., Inc., 384 F.Supp.2d 618, 632 (S.D.N.Y.5/6/04), the court noted the purpose of the tolling rule:

The Supreme Court crafted its rulings to uphold "the principal purposes of the class-action procedure-promotion of efficiency and economy of litigation." Crown, Cork, 462 U.S. at 349, 103 S.Ct. 2392, 76 L.Ed.2d 628. Federal Rule of Civil Procedure 23 was meant to encourage putative class members to allow the named plaintiffs to pursue their claims for them. See id. at 350-51, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628. Failing to toll the statute of limitations would force class members to intervene or take other action to protect their rights, and would disenable the efficient function of the class-action system. See id. at 350, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628. Thus, tolling the statute of limitations until after a determination on class certification is made means that putative class members are not forced to bring separate suits or seek to intervene in anticipation of certification being denied.

The court then determined that allowing a plaintiff who has filed a claim prior to a ruling on class certification does not promote the rationale behind the tolling rule:

Tolling the statute of limitations for those individuals who file separate suits before class certification is determined does nothing to promote judicial efficiency. Instead, holding as Plaintiffs urge the Court to do would simply allow putative class members the benefits of the American Pipe doctrine free of the concomitant burden; that is, Plaintiffs here could rely on the class action plaintiffs without having to put their faith in the class representatives to adjudicate their rights. At page 632-633.

In Puttick v. America Online, Inc., 2007 WL 1522612 (S.D.N.Y.5/23/07) (not reported in F.Supp.2d), the court noted that "The majority of courts to address this issue have concluded that the policy underlying class action tolling mitigates against applying the tolling rule prior to the class certification stage." (See citations listed therein.) The court then noted that although it was not bound by the majority position as stated, "The Court finds much of the reasoning for that position persuasive and joins those courts in holding that a plaintiff filing an individual action may not benefit from class action tolling if he files suit prior to a decision on class certification." At page 3.

In Calvello v. Electronic Data Systems, supra, cited by plaintiffs herein, the court considered the American Pipe case and found that its rationale is that class actions are designed to avoid, no encourage, repetitious filings, and that putative class members should not be punished for waiting to file an action, relying (whether knowingly or not) on the class litigation, only to find out after the time limitations for their independent actions had expired, that the class was not certified. The court further considered, however, that "a plaintiff who chooses to file an independent action without waiting for the determination of class certification is not entitled to enjoy the benefit of the tolling rule [of American Pipe.]" Calvello, at page *4. When a plaintiff files a petition while the issue of class certification is still open, that plaintiff waives the toll [of prescription] that the pending class certification created. Id. "Applying the tolling doctrine to separate actions filed prior to class certification would create the very inefficiency that American Pipe sought to prevent." Id. at page 4. See also In re Enron, 465 F.Supp.2d 687 (S.D.Tex. 12/8/06).

Louisiana's tolling provision has been codified. See LSA-C.C.P. art. 596, cited supra. Louisiana's tolling provision likewise does not specifically address those persons who opt out of a class action by the filing of an independent suit before a ruling on class certification.³ We find the rationale set forth in Fezzani, Puttick and Calvello to be applicable, and therefore we apply it to the instant case. In this case the plaintiffs, by filing the Warren Lester case prior to a ruling on class certification, in the In Re Harvey Term Litigation opted out of the class action suit, and therefore the pendency of that suit did not serve to suspend prescription.

Second, plaintiffs allege that the Clarifying Petition relates back to the filing of the Warren Lester suit, pursuant to LSA-C.C.P. art. 1153, and therefore the action is not prescribed.

The record reflects that Mr. Meerman died on December 7, 2002. Mr. Gauthreaux died on July 30, 2003. Therefore, barring any suspension or interruption of prescription, the claims for wrongful death prescribed on December 7, 2003 and July 30, 2004. The Clarifying Petition was filed on April 30, 2009, over six years later. Unless the Clarifying Petition related back to the original Warren Lester petition filed on December 20, 2002, it is clearly...