Perkins v. Entergy Corp.

• Decision Date: 28 December 1999
• Docket Number: No. 98 CA 2081 to 98 CA 2083.
• Parties: Don PERKINS, et al. v. ENTERGY CORPORATION, et al. Joseph Bujol, III, et al. Joseph Bujol, III, et al. v. Entergy Corporation, et al. Robert Hracek, et al. v. Entergy Corporation, et al.
• Court: Court of Appeal of Louisiana — District of US

756 So.2d 388

Don PERKINS, et al. v. ENTERGY CORPORATION, et al.

Joseph Bujol, III, et al.

Joseph Bujol, III, et al. v. Entergy Corporation, et al.

Robert Hracek, et al. v. Entergy Corporation, et al.

Nos. to .

Court of Appeal of Louisiana, First Circuit.

December 28, 1999.

Opinion Granting Rehearing for Limited Purpose April 13, 2000.

Kenneth P. Carter, New Orleans, LA, John A. Braymer, Baton Rouge, LA, Mack E. Barham, Robert E. Arceneaux, Travis B. Bourgeois, New Orleans, LA, for Entergy Corp. and appellants: Entergy Services, Inc., Gulf States Utilities Company and Louisiana Power & Light Company.

Victor L. Marcello, Donald T. Carmouche, Gonzales, LA, for appellees, Don A. Perkins, et al.

Donald W. Price, Paul H. Due, Baton Rouge, LA, Patrick W. Pendley, Plaquemine, LA, David W. Robertson, Dripping Springs, TX, for appellees, Joseph E. Bujol, III, et al.

Edward J. Walters, Jr., Baton Rouge, LA, for appellees, Eric Hracek, et al.

Phillip L. Canova, Jr., Plaquemine, LA, for Air Liquide America Corp. Robert H. Wood, Jr., Metairie, LA, for Exxon Corporation.

Stephen W. Glusman, Baton Rouge, LA, Lyon H. Garrison, James F. Holmes, New Orleans, LA, for Intervenor Highlands Underwriters Insurance Company.

J. Michael Veron, Lake Charles, LA, for Dresser Industries.

David F. Bienvenu, New Orleans, LA, Jeffrey A. Goldwater, Chicago, IL, for Westchester Fire Insurance Company.

George B. Hall, Jr., Jay Russell Sever, New Orleans, LA, for Agricultural Insurance Company.

H. Lee Leonard, LaFayette, LA, for Reliance Insurance Company of Illinois.

T. Justin Simpson, Metairie, LA, W. Shelby McKenzie, Baton Rouge, LA, for Lexington Insurance Company and Hartford Casualty Insurance Company.

J. Clayton Davie, Jr., Claude F. Bosworth, Loree Peacock Leboeuf, New Orleans, LA, W. Shelby McKenzie, Baton Rouge, LA, for The Aetna Casualty and Surety Company.

John P. Wolff, III, Baton Rouge, LA, W. Shelby McKenzie, Baton Rouge, LA, for Federal Insurance Company.

Jerry L. Saporito, Michael D. Sledge, New Orleans, LA, W. Shelby McKenzie, Baton Rouge, LA, for Royal Indemnity Company.

Julia A. Dietz, Sidney W. Degan, III, New Orleans, LA, D. Russell Holwadel, New Orleans, LA, for National Union Fire Insurance Company of Pittsburgh, PA.

Walter C. Thompson, Jr., New Orleans, LA, for X.L. Insurance Company.

BEFORE: LeBLANC, GONZALES, GUIDRY, WEIMER, and PETTIGREW, JJ.

WEIMER, J.

This appeal involves a negligence case brought pursuant to LSA-C.C. art. 2315, et seq. The plaintiffs are two individuals who were severely burned in an industrial accident, Don A, Perkins and Joseph E. "Jeb" Bujol, III, and their families, and the survivors of Ray Hracek, who received fatal burns. The plaintiffs sued Air Liquide America Corporation ("ALAC"), the employer of Mssrs. Bujol, Perkins, and Hracek; Big Three Industries, Inc. ("Big Three") and its insurers; Entergy Services, Inc. ("ESI"), Gulf States Utilities Company ("GSU"), and Louisiana Power and Light, Inc. ("LP & L"), (collectively, "electric utility companies"); Entergy Corporation;¹ Exxon Corporation ("Exxon"); Dresser Industries, Inc. ("Dresser"); and Masoneilan International.²

A bench trial on the merits was held against the electric utility companies only, the plaintiffs having settled with the other defendants, and the matter was taken under advisement. As stated in written reasons, the trial court determined that the negligence of ESI, LP & L, and GSU was a cause of the accident. The court assessed the electric utility companies with 40 percent of the fault for the plaintiffs' injuries. Additionally, the court determined that ALAC and Big Three were at fault and assessed these defendants with 40 percent and 20 percent of the fault, respectively. Total damages determined by the trial court were $22,728,450.00 (subject to reduction for fault allocations).

The electric utility companies appealed. The plaintiffs answered the electric utility companies' appeal; however, we need not address the plaintiffs' answers because of our disposition of this case. Finding that the trial court was manifestly erroneous in holding the electric utility companies³ liable for plaintiffs' damages, we reverse.

BACKGROUND

On April 6, 1994, ALAC⁴ operated an air separation facility near Plaquemine, Louisiana, which produced oxygen, nitrogen, and argon. Three of the four air separation plants within the facility were producing salable oxygen which was transported via pipeline to customers. An oxygen flash fire and explosion occurred at the ALAC facility approximately three hours after a GSU transmission line located at the Exxon refinery in Baton Rouge, approximately 15 miles away, experienced an electrical fault. The GSU system had recently become part of the Entergy system, which included LP & L and ESI.

The plaintiffs' theory is that the electrical fault caused a voltage sag at the ALAC facility which, in turn, loosened debris in the form of metallic particles contained within the ALAC piping system that transported oxygen. Approximately three hours later, after the ALAC facility was restarted, this debris, which had begun to move about within the pipeline, became an ignition agent by what was referred to as "particle impact or frictional induction." The flash fire and explosion occurred at the site of an automatic pressure control valve.

FACTS

At 1:52 a.m., a static shield wire, held together with only one of its original seven strands and suspended above a 230,000-volt line at the Exxon refinery in Baton Rouge, separated in a 10-knot wind,⁵ causing an "A phase to ground" electrical fault. The initial electrical fault was successfully cleared by high speed primary relaying systems in seven cycles,⁶ that is, 7/60ths of a second. However, attempts to reclose a breaker caused an escalation to a full three-phase fault. Improperly set and poorly maintained relaying equipment failed, resulting in a 58-cycle, three-phase electrical fault that caused significant loss of voltage on the grid⁷ and loss of generation of electricity in the area. The ALAC facility suffered a voltage sag of 47.5 percent.

When ALAC experienced the voltage sag, its facility shut down. The nature of the shutdown was the subject of considerable testimony at trial, which we will address later in detail. According to the Schmidt report,⁸ three of the four plants had been restarted when a problem was noted in an oxygen pipeline automatic pressure control valve located at the ALAC facility's letdown station. Mr. Perkins was working the shift when the shutdown occurred.⁹ Mr. Hracek and Mr. Bujol were among other employees¹⁰ who were called in by ALAC to restart the plants. In an attempt to counteract the problem, the three men went to the letdown station. Shortly thereafter, a large flash fire occurred at the letdown station. Mr. Bujol and Mr. Perkins were blown in different directions by the force of the fireball and suffered burns on approximately 90 percent of their bodies. Mr. Hracek, suffering burns on approximately 95 percent of his body, died five days later.¹¹

Both lay and expert witnesses testified by deposition and at trial concerning three events on the fateful morning in question: 1) the Entergy transmission system fault at the Exxon refinery, including what preceded and what followed the fault; 2) the shutdown of the ALAC facility; and 3) the startup of the ALAC facility, including the flash fire at the letdown station.

1) Electrical fault at the Exxon Station:

Roger L. Owens, vice-president of engineering at McDowell Owens Engineering, a firm specializing in "failure analysis," was called by the plaintiffs and accepted as an expert in electrical engineering and in casualty control. He stated his assignment was to look in detail at the electrical disturbance and then to "look generically... at the explosion fire incident" to see if there was a cause-and-effect relationship.

Mr. Owens' description of the electrical fault that caused the voltage sag was basically unrefuted. The first incident was of short duration and consisted of the failure of the static shield wire above the 230,000-volt transmission wires. The static shield wire failed, separated, and fell onto the transmission wires. When contact was made with phase A, the relaying equipment triggered appropriately within seven cycles, which Mr. Owens acknowledged was a "very fast response."

Within two minutes, the local operator for the electric utility company attempted reclosure of the line, which is normal procedure. However, the line was reenergized with the downed static shield wire still in contact with the transmission wires. An escalation into a three-phase electrical fault occurred. This time the protective relaying equipment did not perform as designed. The electrical fault continued for 58 cycles which, according to Mr. Owens, was a "huge amount of time in the electrical world." The second incident ended when a manually-recycled breaker was reopened and the fault cleared.

Mr. Owens stated the static shield wire fell because the ground strap at the tower, which is a support mechanism, became worn over time. The static shield wire consisted of seven strands, six of which had broken prior to that day. Wind caused the remaining one strand to give way. The static shield wire had been in place 17 to 18 years and was designed to withstand 40- to 45-knot winds, but it gave way in a 10-knot wind. Additionally, the degree of sag in the static shield wire was not within specifications, causing too much tension in the wire. It was Mr. Owens' opinion that the tension was an aggravating factor, not an initiating factor of the failure of the static shield wire.

The second electrical fault continued because of a problem with the relay equipment.¹² The noise settings on the relay equipment were set too high, at minus 52 decibels instead of the proper minus 37-decibel setting, and the relay did not sense the electrical fault and signal the breaker. The...