Offshore Accidents

February 4, 2013

Kentucky Supreme Court Case Shows Need for Excellent Representation

A recent case within the Kentucky Court of Appeals demonstrates very extremely the need for quality counsel in all court proceedings. Regardless the subject or reasons you may find yourself in court, it is important that the lawyer you hire is not only able to represent you well in the courtroom and past it. While you would like to think the courts have the rule of law well established in the minds of their judges, a qualified attorney will also review the matters at hand to make sure all ‘facts’ are correct in the proceedings.

In the case of Bramer Crane Servs., LLC v. Structure Builders & Riggers Mach. Moving Div., LLC, a lien issue was reviewed by the superior court of the state. While the actual facts of the case are not important for this post, what is important is that the findings of the court were inherently flawed. Cited in the case was a fact that was severely outdated, as much as 20+ years and two revisions.

As the blog Zlien notes, instead of a clean finding, the court had lapsed in its research and failed to note updated law. The issue was that the ruling relied on judicial precedence rather than a review of legislation passed during this time. While one would like to consider the issue a simple lapse in judicial research, the fact remains that this unpublished decision could very easily have gone unnoticed without people stepping up.

January 28, 2013

Louisiana Liability Lawsuit Against Sand Supplier for Silicosis Dismissed

by Berniard Law Firm

In nearly all cases, sand on a beach is enjoyable and safe. Sand used for sandblasting, however, creates dust that, upon being inhaled by an unprotected worker, increases the risk of lung disease or other lung-based medical concerns. The Louisiana Court of Appeal decided in Bates v. E. D. Bullard Co., that the possibility of problems does not make the sale of a product like sand unreasonable, especially when that use is outside the normal, non-technical purpose.

Wilbert Bates worked for the SBA Shipyards during the 1980s doing tasks that included cleaning and sandblasting. Both types of duties exposed him to silica dust — pieces of sand so small that he inhaled them and they stuck in his lungs that led to silicosis. Silicosis is an industrial disease that leaves its victims short of breath due to small sand particles becoming lodged in the lungs. The presence of particles encourages the growth of fibrous tissue in the lungs, reducing lung capacity. A lifetime of work can result in wheezing and body strain in an attempt to get air.

Bates and his wife sued Specialty Sand Co. and Southern Silica of Louisiana, Inc., which provided sand to the shipyard. The Bateses claimed that the sand was unreasonably dangerous or defective because the sand companies failed to warn and instruct him and the shipyard of the potential hazards.

January 24, 2013

Admissibility of Photos One Part of Drive-Through Accident Involving Ambulance

by Berniard Law Firm

In the case of Johnson v. Smith, an ambulance driver drove his vehicle into the rear panel of another driver’s vehicle. This occurred in the drive-through lane of a Taco Bell. The defendant ambulance driver was determined to be at fault and lost at trial. On appeal, the defendants urged that certain pictures that had been deemed inadmissible at trial were crucial to their case. They claimed that it constituted reversible error on the part of the trial court not to admit the photographs in question. The appellate court disagreed and affirmed the trial court’s opinion.

The first reason for the appellate court’s decision on the matter of the admissibility of the photographs was that the photographs were not properly authenticated. While the law does not require photographs to be perfect representations of what they stand for, there is a standard that must be met. Photographs must be “sufficiently correct” before being admitted at trial. A trial court is permitted to admit photographs that have inaccuracies as long as the inaccuracies are explained. In this case, the police officer who was attempting to authenticate the photographs as taken by him may or may not have appeared in one of the photographs. This put the true origin of the photographs into question for the trial court. Because evidentiary rulings of a trial court are given great deference on appeal, the appellate court would only have disturbed this finding if it had found an abuse of discretion. Finding no such abuse of discretion, the court did not reverse on these grounds.

Another interesting reason for the appellate court’s decision in this case is that the court did not find that the photographs, if admitted, would have been at all helpful to the defendants who were urging the admission of those photographs. The court noted that the photographs may have been helpful to the plaintiffs in this case but found that the photographs would not have advanced the cause of the defendants. This type of harmless error is not going to result in a new trial for an aggrieved party. The appellate court found that the only real purpose that these photographs served was to establish the identity of the vehicles involved in this accident. None of the parties to the suit disputed the identity of the vehicles involved in the underlying accident.

January 21, 2013

Identifying the Wrong Defendant in Civil Suit Can Lead to Lost Opportunity

by Berniard Law Firm

The civil justice system has a few bare minimum requirements that must be met before a party can be successful in any given litigation. In order for a party to be successful in a civil action, that party’s case must make sense to the court in terms of the party accused, injury presented, etc. Initiating action against the correct defendant seems like it would be a given, however that is not always the case. Ms. Charise Thomas was injured in a particular location, eventually suing the owner of the location, Mr. Antonio Harris, due to the incident. Ms. Thomas also sued that man’s father, Mr. Aaron Harris. Unfortunately for Ms. Thomas, she did not initiate action against the estate of one Mr. Thirkield J. Smith, the owner of the property on the date of her accident.

The trial court granted Aaron Harris a peremptory exception of prescription and Antonio Harrris a summary judgment. These two different types of relief are granted for different reasons, having similar results but different standards of review on appeal. Each requires different elements in order to be granted to the moving party. In this case, they were also both upheld by the appellate court.

An exception of prescription is granted by a trial court when a certain time period has elapsed between the incident giving rise to a particular suit and the filing of that suit. Since Ms. Thomas never ended up filing against the appropriate party, Aaron Harris’ peremptory exception of prescription was granted and upheld on appeal. The trial court’s decision is given a fairly high amount of deference on appeal and is reviewed under the manifest error standard. If the trial court is found not to have abused its discretion, its decision will not be overturned.

December 17, 2012

Class Action Involving Plant Releases Demonstrates How Certification Occurs

by Berniard Law Firm

Creating laminated veneer lumber and I-Joists, which are used in residential and commercial construction, require toxic chemicals such as formaldehyde, phenol, and methanol. The chemicals also end up in the waste products of plants that produce these goods. In the Parish of Natchitoches, hundreds of individuals discovered the damage that these chemicals could cause. These individuals stated “that sawdust from the plant fell like snowflakes upon them, their children, their homes and their cars.” The plant admitted that accidental release of admissions were fairly common, and they were all observed and recorded.

As a result of this exposure, hundreds of plaintiffs joined to form a class action lawsuit. A class action lawsuit involves numerous individuals who have suffered in a similar manner, usually resulting from the same incident or series of incidents. Class action lawsuits allow individual people to get compensation for damages where they may not have been able to if they just sued by themselves.

The damages in this case not only included the obvious mess that sawdust would create in a home, but also included an array of medical issues. Some examples include conjunctivitis, difficulty breathing, wheezing, coughing, bronchial pneumonia, and asthma. The side effects of exposure to the chemicals in the plant were relatively the same as those claimed by hundreds of nearby residents.

October 25, 2012

Toxic Spill Creates Range of Plaintiffs, No Clear Limit on Class

by Berniard Law Firm

A Louisiana Court of Appeals remanded a class action case back to the trial court for further determination on the size of a class of plaintiffs affected by a Livingston Parish hazardous waste dump. The case, while unfortunate in subject matter, is an excellent overview of the appeals process.

In this case, the trial court had decided to certify a class of all people living within 2.5 miles of a dump site of Combustion, Inc., that had released toxic chemicals into the air and water. Initially, over 14 lawsuits had been filed by 1200 people, but the trial judge had consolidated the cases to a single class action case. The defendants in the case appealed the trial judge’s decision on two grounds: first, that a class action lawsuit was not the appropriate means of deciding the matter because separate lawsuits would be better; and second, that the judge incorrectly set the eligible class of plaintiffs at all those people living within 2.5 miles of the site.

The Court of Appeals sided with the plaintiffs on the first issue. The Court noted that, under Louisiana civil procedure, a case is appropriately decided by class action if the plaintiffs are numerous enough, the named plaintiffs will adequately represent all plaintiffs in the class, and if there is a common character between the claims of all plaintiffs. The Court reasoned that, there being over 1200 plaintiffs in the initial class, there were clearly enough plaintiffs for the trial court to decide that a class action was fair. Also, the Court reasoned that the plaintiffs would likely all have similar damage from the toxic chemicals—namely, bodily injury and property damage—that would make the named plaintiffs adequate representatives of everyone in the class. Finally, the Court reasoned that the legal issues encountered by the plaintiffs were similar enough that there was a common character between them. For these reasons, the Court held that class action was appropriate to resolve the issues in the case.

October 17, 2012

Importance is What, Not Who, in School Mineral Lease Case

by Berniard Law Firm

Recently, the Vermillion Parish School Board sued various oil, gas, and mineral companies based on mineral leases that were established over a period of nearly 70 years. The companies included Union Oil Company of California, The Pure Oil Corporation, and ConocoPhillips Company. After the school’s argument was rejected at the lower level in separate lawsuits, the school filed to appeal the trial court’s decision. The State of Louisiana Court of Appeal for the Third Circuit reversed the lower court’s findings and its justification for doing so is quite interesting. That court addressed the mineral leases generally, the use of Section 16 lands, and the school’s role in the use of Section 16 lands.

This case involved several unique concepts under the law. First, the dispute centered around mineral leases, which are an curious concept themselves. Basically, mineral leases allow another person or company the ability to mine or take the minerals that are on or underneath a portion of land. In order to take those minerals, the person or company has to pay for their use as if they are renting the entire property. The land above ground might also be used for another purpose that is completely unrelated to mining of minerals, oil, or gas underneath the surface. In addition to a specified rent, many times the person or company who owns the land may also require that they receive a portion of the profits that the land produces. This profit portion is commonly referred to as royalties. These royalties are the topic of discussion in the Vermillion Parish School Board case.

In this case, a school owned lands that they had leased to various oil, gas, and mineral companies. The school was situated on Section 16 land. This concept is also unique and deserves some historical explanation. The State of Louisiana Court of Appeals for the Third Circuit provides some background on the status of this land. It explains that in 1806, the United States government set aside some land for the use of public education. Therefore, when Louisiana joined the Union in 1812, the land that was set aside was passed to the State to establish public education. These lands are separate from other public lands because they are completely under the control of the state school authorities; therefore, they are held in trust for the benefit of Louisiana school children. The court further explains that although the school authorities control the use of the land, the land is actually owned by the State of Louisiana.

October 9, 2012

Chlorine Gas Leak Case Offers Lesson on Products Liability Claims

by Berniard Law Firm

Four workers who were employed by the Prairieville-based Proserve Hydro Co. were working on at a Honeywell International facility when a hose carrying chlorine gas ruptured, causing them injury. The workers sued Triplex, Inc., the company that had sold the hose to Honeywell, under the theory that it was liable for their injuries as the manufacturer of the hose. The U.S. District Court for the Middle District of Louisiana, applying the Louisiana Products Liability Act (LPLA), granted summary judgment in favor of Triplex, and the workers appealed.

In its review, the U.S. Court of Appeals for the Fifth Circuit noted that The Louisiana Supreme Court has identified four elements that a plaintiff must establish in a products liability suit under the LPLA. It focused particualrly on the requirement that the defendant must be the “manufacturer” of the product according to the state’s definition. The lower court’s summary judgment was based on Triplex’s position that it was not a manufacturer of the hose within the meaning of the LPLA. The hose in question was a “Resistoflex Chlorine Hose Part # HB30HB30HB-1560.” It consisted of a Teflon inner-core surrounded by a braided material jacket. The core and jacket were assembled by the Crane Resistoflex Company and shipped in bulk to Triplex for distribution. Upon receipt of an order from Honeywell, Triplex cut the hose to the requested length, installed Resistoflex-approved fittings to either end, and pressure-tested the hose. Triplex recorded the specifications of this work on an assembly test certificate which listed “Resistoflex” as the manufacturer of the hose.

The court looked to the LPLA to determine whether, based on its cutting the Resistoflex hose and installing the end fittings, Triplex fit the definition of “manufacturer.” It noted that the workers’ expert conceded that the hose rupture occured a significant distance away from any end fitting and did not appear to result from the modifications Triplex performed. It also affirmed the point that “the simple act of testing a product after modifications,” as Triplex did, “does not transform a seller into a statutory ‘manufacturer.’” The court was not persuaded that Triplex exercised any “control over… a characteristic of the design, construction or quality of the product,” given that Honeywell specified the exact Resistoflex part number and the end fittings it required. Accordingly, the court concluded that Triplex was not a manufacturer under the state law definition, and therefore could not be found liable for the workers’ injuries under the LPLA.

October 7, 2012

Louisiana’s Third Circuit Upholds Prescription Finding in Kinder Property Contamination Case

by Berniard Law Firm

In 1960, Hunt Petroleum Corporation (“Hunt”) entered into a surfaces lease with the Reynolds family. In 1997, Kinder Gas Processing Corporation (“Kinder Gas”), one of Hunt’s successors in interest, notified the Reynolds of an environmental study “that showed a few things [Kinder Gas] wanted to clean up,” and that it was “in the process of cleaning them up.” Over several years, Kinder Gas discussed with the Reynolds the possibility of buying part of the property and cancelling the entire lease. On January 14, 2008, the Reynolds (through a real estate appraiser) offered to sell the entire property to Kinder Gas. The offer referred to environmental problems on the property caused by Kinder Gas or its predecessors.

In 2010, Kinder Gas brought suit for a declaratory judgment against the Reynolds to avoid liability for damage to the Reynolds’ property. In turn, the Reynolds sought damages against Kinder Gas and other successors (“the Gas Companies”) in connection with toxic wastes that were spilled or disposed on the property. The Reynolds relied on theories of strict liability, nuisance, continuing trespass, and breach of contract. They asserted that the lease was cancelled as a result of the Gas Companies’ breach of contract. The Gas Companies countered that the tort claims had prescribed, and that the breach of contract claim was premature.

The Kinder Gas v. Reynolds trial court agreed with the Gas Companies, finding that the Reynolds’ had constructive knowledge of possible contamination prior to the real estate agent’s January 14, 2008 offer. Citing Marin v. Exxon Mobil Corp. and Hogg v. Chevron USA, the court held that the Reynolds’ failure to file their tort claims within a year from this date resulted in prescription. The court also found that the lease was still in effect. Relying on Dore Energy Company v. Carter-Langham, Inc., the court held that the Reynolds’ contract claim for restoration of land on which operations were ongoing was premature.

October 5, 2012

Louisiana’s Third Circuit Overturns Decision Limiting Landowners’ Recovery of Damages in Vermillion Parish Pollution Case

by Berniard Law Firm

In Louisiana v. Louisiana Land and Exploration, the State of Louisiana and the Vermilion Parish School Board brought suit against Union Oil Company of California (“Unocal”) and other oil companies for remediation of polluted state property in Vermilion Parish. Unocal admitted that it was responsible for environmental damage on the property and filed a motion to refer the case to the Louisiana Department of Natural Resources (LDNR) pursuant to Act 312 of 2006, La.R.S. 30:29. Plaintiffs objected, arguing that such a referral could not take place until all Defendants admitted responsibility and the private claims were tried to the jury. The trial court agreed with Plaintiffs.

Unocal filed a motion for partial summary judgment limiting Plaintiffs’ remediation damage claims to the amount determined by LDNR to be “the most feasible plan to evaluate or remediate the environmental damage” under La.R.S. 30:29(c)(3). Unocal argued that this language served as a cap on remediation damages resulting from a tort or the implied restoration obligation of a mineral lease. The trial court agreed.Plaintiffs appealed to the Louisiana Third Circuit Court of Appeals, which issued a decision on the case on February 1, 2012.

In considering whether La.R.S. 30:29 limited Plaintiff’s recoverable remediation damages to the cost of a “feasible plan,” the appeals court first looked to the language of the statute. The court quoted the first sentence of La.R.S. 32:29(H): “This section shall not preclude an owner of land from pursuing a judicial remedy or receiving a judicial award for private claims suffered as a result of environmental damage, except as otherwise provided in this Section.” The court found that this language clearly contemplated the landowner receiving an award in addition to that provided by the feasible plan.