PIPE v. AMERADA HESS Corp.

• Decision Date: 08 September 2010
• Docket Number: No. 2009–CA–0298.,2009–CA–0298.
• Citation: 47 So.3d 428
• Parties: EAGLE PIPE AND SUPPLY, INC. v. AMERADA HESS CORPORATION, et al.
• Court: Court of Appeal of Louisiana — District of US

47 So.3d 428

EAGLE PIPE AND SUPPLY, INC.

v.AMERADA HESS CORPORATION, et al.

No. 2009–CA–0298.

Court of Appeal of Louisiana,Fourth Circuit.

Feb. 10, 2010.

Order Granting Rehearing April 21, 2010.

Opinion Granting Rehearing and Vacating Opinion Sept. 8, 2010.

COPYRIGHT MATERIAL OMITTED.

Stephen B. Murray, Sr., Arthur M. Murray, Stephen B. Murray, Jr., Korey A. Nelson, Murray Law Firm, and Stuart H. Smith, Michael G. Stag, Lloyd S. Jolibois, Jr., Robert D. McMillin, Smith Stag, L.L.C., New Orleans, LA, for Eagle Pipe and Supply, Inc.

Mary S. Johnson, Jill T. Losch, Johnson Gray McNamara, LLC, Mandeville, LA, and Thomas M. McNamara, Johnson Gray Mcnamara, LLC, Lafayette, LA, and Chad J. Mollere, Johnson Gray McNamara, LLC, New Orleans, LA, for Shell Oil Company, Shell Offshore Inc., Swepi LP, and Kerr–McGee Oil & Gas Corporation.

F. Henri Lapeyre, Jr., Etienne C. Lapeyre, Lapeyre and Lapeyre, L.L.P., New Orleans, LA, for Berry Petroleum Company.

Patrick A. Talley, Jr., Louis M. Grossman, Frilot L.L.C., New Orleans, LA, for Chevron U.S.A. Inc.

Thomas A. Rayer, Jr., Michael H. Bagot, Jr., Jonathan D. Shaver, Wagner & Bagot, L.L.P., New Orleans, LA, for Patterson Truck Line, Inc.

Joseph E. LeBlanc, Jr., Meryl McLendon, Leblanc Bland, P.L.L.C., Houston, TX, and Elizabeth S. Wheeler, Amanda N. Moeller, Leblanc Bland, P.L.L.C., New Orleans, LA, for Hess Corporation.

Glen M. Pilie', Martin A. Stern, Ronald J. Sholes, Roland M. Vandenweghe, Jr., Lauren J. Delery, Adams and Reese LLP, New Orleans, LA, for Exxon Mobil Corporation.

Christoffer C. Friend, Brett F. Willie, Susan R. Laporte, Curry & Friend, APLC, New Orleans, LA, for Oxy USA, Inc.

Dale P. Martin, Martin Law Firm, Broussard, LA, for Ace Transportation LLC, Dynasty Transportation LLC, Venture

Transport Logistics, L.L.C., and Venture Transport Logistics Holdings, L.L.C.

Stanley A. Millan, Judith V. Windhorst, Jones Walker Waechter Poitevent Carrere & Denegre, L.L.P., New Orleans, LA, and Olivia S. Regard, Jones Walker Waechter Poitevent Carrere & Denegre, L.L.P., Lafayette, LA, for Packard Truck Lines, Inc.

Thomas L. Gaudry, Jr., Michael D. Peytavin, Gaudry Ranson Higgins & Gremillion, L.L.C., Gretna, LA, for ACME Truck Line, Inc.

Thomas E. Balhoff, Judith R. Atkinson, Carlton Jones, III, Roedel Parsons Koch Blache Balhoff & McCollister, Baton Rouge, LA, for Intracoastal Tubular Services, Inc.

(Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).

TERRI F. LOVE, Judge.

This appeal arises from the sale of land to the plaintiff, who later discovered that the land was allegedly contaminated with radioactive material. The plaintiff sought relief against the former landowners and the oil and trucking companies allegedly responsible for the contamination. The trial court granted the oil and trucking companies' exceptions of no right of action. We find that the trial court did not err, as the plaintiff has no right of action against the oil and trucking companies and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On April 22, 1988, Eagle Pipe and Supply, Inc. (“Eagle”) purchased property in Lafayette Parish, Louisiana from Robert Bridges, Patsy Tremble Bridges, and Edmund J. Baudoin, Jr. Union Pipe ¹ allegedly leased the land from 1981 to 1988, and operated an industrial pipeyard “that bought, stored, and sold used oilfield tubing.” Following an alleged field interview performed by the Louisiana Department of Environmental Quality (“LDEQ”), Eagle allegedly discovered that the land was contaminated with Technologically Enhanced Naturally Occurring Radioactive Materials (“TENORM”). The LDEQ found Eagle in violation of TENORM exposure regulations and allegedly ordered remediation. ²

After the alleged LDEQ actions, Eagle filed a petition for damages against four groups of defendants. First, Eagle sued a group of oil company defendants that it claims “either sold or tendered to Union Pipe used oil field equipment for cleaning or maintenance, which at all pertinent times contained hazardous, toxic, and carcinogenic radioactive materials.” ³ Second, Eagle alleged that the previous landowners, Mr. and Mrs. Bridges and Mr. Baudoin, “leased the property to Union Pipe, a pipe cleaning facility, which operated on the property” and that “[f]rom 1981 to 1988, Union Pipe bought, cleaned, inspected, handled, and stored a large number of pipe.” Third, Eagle avers that the transporter defendants transported TENORM contaminated pipe to the property and “conspired with all other defendants to commit acts that caused petitioner's damages.” ⁴ Finally, Eagle sued ABC Insurance Company, Inc. as an alleged insurer liable for Eagle's damages.

Several defendants filed declinatory, dilatory, and peremptory exceptions. The trial court ruled on the exceptions following a hearing. However, the trial court's rulings granting the exception of no right of action, ⁵ dismissing Eagle's claims with prejudice, and denying motions based on forum non conveniens ⁶ are the subject matter of the case sub judice. Eagle filed a motion for a new trial, seeking, in part, to amend its petition, which the trial court denied. Eagle's devolutive appeal of the judgment followed. Nine defendants answered Eagle's appeal to preserve their appellate rights of the trial court's denial of forum non conveniens if this Court reversed the exceptions of no right of action. ⁷ Acme also filed exceptions of no right of action and no cause of action with this Court for the claims Eagle seeks to add by amending its petition.

EXCEPTION OF NO RIGHT OF ACTION

The exception of no right of action is peremptory. La. C.C.P. art. 927. The exception presents a question of law, which requires a de novo review by appellate courts. Hornot v. Cardenas, 06–1341, p. 12 (La.App. 4 Cir. 10/3/07), 968 So.2d 789, 798.

“The function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition.” Badeaux v. Sw. Computer Bureau, Inc., 05–0612, p. 6 (La.3/17/06), 929 So.2d 1211, 1217. The exception also “serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation.” Id., 05–0612, pp. 6–7, 929 So.2d at 1217. “Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.” La. C.C.P. art. 681. Thus, the question is whether the plaintiff has a right to sue the defendant. Id., 05–0612, p. 6, 929 So.2d at 1217.

The exceptor bears the burden of proof. Carter v. Haygood, 04–0646, p. 8 (La.1/19/05), 892 So.2d 1261, 1267. “[E]vidence is admissible on the trial of an exception of no right of action to ‘support or controvert any of the objections pleaded, when the grounds therefor do not appear from the petition.’ ” Indus. Co., Inc. v. Durbin, 02–0665, p. 12 (La.1/28/03), 837 So.2d 1207, 1216, quoting La. C.C.P. art. 931.

Eagle contends that the trial court's judgment was contrary to the law due to an incorrect interpretation of the Louisiana Civil Code and Prados v. S. Cent. Bell Tel. Co., 329 So.2d 744 (La.1976), and that it was a third party beneficiary to the alleged contracts between the oil company defendants and Union Pipe. Eagle also contends that its motion for new trial should have been granted because it was not given an opportunity to amend the petition, pursuant to La. C.C.P. art. 934.

ALLEGED TORTIOUS LIABILITY

Eagle avers that the trial court erroneously permitted the defendants to profit by “hiding” their alleged tortious actions. Citing La. C.C. art. 2315, Eagle complains that it is a “damaged” party, but that a cause of action based on its damages did not accrue until the LDEQ allegedly notified Eagle of the alleged contamination. Eagle alleges that it paid fair market value for the land and should be able to sue the defendants because it was allegedly unaware of the alleged TENORM contamination. Therefore, Eagle contends that it is the proper party to file suit, as the former land owners allegedly suffered no damage.

“[A] buyer is presumed to know the overt condition of the property and to take that condition into account in agreeing to the sales price.” Prados v. S. Cent. Bell Tel. Co., 329 So.2d 744, 751 (La.1976). “The general Louisiana rule is that a purchaser cannot recover from a third party for property damage inflicted prior to the sale.” St. Jude Med. Office Bldg. Ltd. P'ship v. City Glass and Mirror, Inc., 619 So.2d 529, 530 (La.1993).

Damages to the owner of the land occurring prior to the sale of land are personal to the owner and are not recoverable by the new owner without an express subrogation. Bradford v. Same, 16 So. 487, 488 (La.1894). “[T]he landowner at the time of the alleged damages is the person with the real and actual interest to assert the claim for damages to the land.” Dorvin Land Co. v. Parish of Jefferson, 469 So.2d 1011, 1013 (La.App. 5th Cir.1985). This personal right “is not transferred by a mere transfer of the title to the land,” but “a specific assignment of the right.” Id. “Thus, a claim for damages, whether it arises under a predial lease or a mineral lease, is a personal right which must be specifically assigned to run with the property.” LeJeune Bros., Inc. v. Goodrich Petroleum Co., 06–1557, p. 13 (La.App. 3 Cir. 11/28/07), 981 So.2d 23, 32.

Eagle contends that the sale included a “full subrogation” to all of the rights of the previous property owners because the act of sale included the following language:

for the consideration hereinafter mentioned they do by these presents sell, transfer and deliver, with full guarantee of title and free from all encumbrances, and with subrogation to all their rights and action of warranty against previous owners.

However, this is the same language the Louisiana Supreme Court examined and held was not a valid assignment...