Oil Insurance Limited VS Dow Chemical Company, Dow Hydrocarbons and Resources, Inc., Frank's Casing Crew & Rental Tools, Inc. and Grey Wolf Drilling Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 0418 OIL INSURANCE LIMITED G VERSUS DOW CHEMICAL COMPANY DOW HYDROCARBONS AND RENTAL TOOLS RESOURCES INC FRANK S CASING CREW INC AND GREY WOLF DRILLING COMPANY W l Judgment Rendered November 2 2007 UWFV i On Appeal from the Twenty Third Judicial District Court In and For the Parish of Assumption State of Louisiana Docket No 29 217 Honorable Thomas Kliebert Judge Presiding Edward F Lebreton III Counsel for Plaintiffs Nonnan C Sullivan Jr Appellants Oil Insurance Limited George Fowler New Orleans Louisiana Counsel for Defendant Barry Marionneaux Plaquemine Louisiana Appellee Dow Company Resources Inc Counsel for Defendant Martin Triche Napoleonville Dow Chemical Hydrocarbons F Louisiana Dow Chemical Hydrocarbons E Lanier Edwards Jr Napoleonville Amy L Baird LA B Richard Moore Jr David M Whitaker Nicole M Duarte New Orleans Louisiana Appellee Company Dow Resources Inc Counsel for Defendant Dow Chemical Appellee Dow Company Hydrocarbons Resources Inc Douglas J Kurtenbach P C Counsel for DefendantAppellee pro hac vice Dow Chemical Chicago Illinois Hydrocarbons Richard J Counsel for Defendant Company Dow Resources Inc Hymel Jeffrey Riggs Lafayette Louisiana Frank Terrence K Knister New Orleans Louisiana Gulf South Appellee Counsel for Defendant BEFORE s Case Crew Rental Tools Inc Appellee Pipeline Company LP GAIDRY McDONALD AND McCLENDON JJ 2 McCLENDON J In this suit for Insurance Limited damages plaintiff Oil judgment in favor of Tools Inc Frank of the defendants Frank one of prescription objection Frank maintaining s Gulf South L P subrogated insurer for Gulf South Pipeline s Oil as appeals a Rental Casing Crew s the peremptory exception raising the We affirm FACTUAL AND PROCEDURAL BACKGROUND Oil filed suit claims paid on to s In 2001 On December 24 Conservation required determined to be 2003 cause one Gulf South to investigate and provide Allegedly Frank s prescription a cause s s tort claim not and over Root Cause a of the accident was and another company against discovered until 2005 causing the gas Frank s seeped was filed alleged that the true As of the date of the 20 000 000 00 in claims on prayed for judgment in its favor and against and other defendants Frank and the casing through which petition Oil asserted that it had paid behalf of Gulf South with Office of Resources year from the date of the accident Oil was s Napoleonville of well 13 out seeped improper back welding by Frank of the seepage Dow petition s 13 and 14 in the Department of Natural Although the petition shows that Oil than Oil contracted in the 1970 natural gas which caused the cracks in the well more to Gulf South leased the wells for storage of natural for the accident Analysis Dow for seeking reimbursement According casing for wells The Louisiana damages Inc Resources drill and install salt dome gas 2005 behalf of Gulf South Hydrocarbons and Frank 29 September on s filed and the exceptions peremptory objection dilatory exception raising of no cause the raIsmg the of action based objection of prematurity 3 objection on of peremption At the hearing exceptions Frank the on s the exception of prematurity the deposition determine the of Dr root partially relying court s peremptory exceptions but withdrew only evidence Both various sections of the claims court admitted at the hearing was Egan the expert hired by Gulf South R of the seepage October 5 2006 the trial dismissed Oil The Geoffrey cause on the argued against Frank 1 In its s parties presented arguments deposition sustained the to In exception reasons a of judgment dated prescription and for judgment the trial plaintiff s expert suspected that welding and casing work found that performed by Frank may have been the s cause of the leak as early as June 2004 Oil appeal On assigned arguing the discovery to error the trial was was not the true confident cause s ruling primarily recognized by the doctrine of rule and had not reasonably confirmed that Frank s of the seepage until November of 2004 Frank not meet by the 1 the suit provision invoked by Oil s asserts its burden contra non In the trial court s that the to prove for Thus even prescription timely filed on its face and Oil did applicability of the discovery rule provided valentem doctrine reasons was petition had prescribed the non s without the benefit of LSA R S 9 5822 the Hurricane Katrina extension contra Oil argues that Gulf South valentem agree nulla currit praescriptio expert court Frank judgment s posits that it is clear from the the court noted that its dismissal based on prescription rendered a ruling on Frank s exception of no cause of action based on peremption unnecessary In this court Frank s filed an answer to the appeal asking that the exception based on peremption be considered and maintained Peremption which may be raised by a party through an exception of no cause of action without the introduction of evidence or through an exception of prescription with supporting evidence need not be pleaded and can be raised by a court on its own motion Asher 2001 1038 p 4 n 5 La App 1 However as did the trial court based on our LSA C C P art 931 LSA C C art 3460 Saia Cir 7 10 02 finding 825 So 2d 1257 that the action has In addition we 1259 prescribed note that we n 5 we v pretermit do not accept the issue of peremption new evidence or we 4 deny Oil s motion to review evidence not supplement the record with the trial court s reasons for its ruling on a different party s exception rendered after the judgment on appeal here See Willis v Letulle 597 So 2d 456 464 La App 1 Cir 1992 Shahla v City of Port Allen 601 So 2d 746 751 n 3 La App 1 Cir 1992 properly admitted in the court below and in the allegations or petition coupled with Gulf South knew running within of one June of 2004 prescription by that Oil deposition of Dr Egan should have known of facts sufficient or year of that the the Thus petition to the trigger filed not was discovery date APPLICABLE LEGAL PRECEPTS Delictual actions This prescription sustained unless C C La be are to commences LSA C C to a liberative Prescription exception is established by legislation art App 3467 Griffin 812 So 2d 726 may not be the peremptory However if exception the pleadings the burden shifts interrupted Water Sewerage La 1993 Board Succession of So 2d 83 822 the 88 plea year persons rule LSA 2000 2122 of prescription p the court LSA C C P proof at prescription is evident Orleans 2001 1777 on the trial of the face of writ denied 611 So 2d 6 7 2002 2389 La La was Williams prescribed pp 9 must plaintiff to show that prescription of New Daigle Inc the burden of and the action has not suspended or to The supplied by Ordinarily the exceptor bears 927 B 6 21 02 734 against all runs P one damage is or jurisprudential BSFI Western E v 1 Cir 2 15 02 or of prescription day injury from the run 3492 art specifically pleaded and art subject 1386 1383 1 App 1122 02 v Cir 829 So 2d 1045 Prescriptive favor of the statutes are obligation sought constructions the one 1972 prescriptive to Further in statutes prescription our contra to be which favors barring should be adopted 529 strictly construed against prescription and in an Foster attempt courts non v have valentem extinguished thus maintaining an of two action as possible opposed to Breaux 263 La 1112 270 So 2d 526 to soften the occasional harshness of recognized non 5 a jurisprudential exception currit praescriptio which means that prescription does Carter v Harvey Dixie contra be asserted by plaintiffs 211 filed See Lima Campo person who could not La 1 19 05 11 that to prove Gatch 93 2361 v 595 So 2d 624 on exceptor if contra 627 29 or statute not before suit run 635 So 2d 206 and compare La 1992 828 So 2d 502 valentem non The theories that may 94 11 4 La 6 21 02 article applicable prescriptive codal La had 1268 La 1992 354 suspensive prescription Correa 2001 2707 pp 6 9 v of the one bring his suit 892 So 2d 1261 So 2d 351 593 valentem is Wimberly burden remains the non Schmidt v against a Inc Graphics doctrine of was run 2004 0646 p Haygood v not 507 09 codified into principle Our supreme court has recognized four instances where contra non valentem is applied to prevent running of prescription 1 where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action 2 where there the was condition some with the with the acting effectually and 4 where the cause of action is reasonably knowable by the plaintiff ignorance is not induced by the defendant or Carter 2004 0646 at pp does prescription of category four not commence that he is the victim of a tort negligence caused the damage 2122 at p 9 812 So 2d at 734 sufficient to incite minded person 812 So 2d on curiosity guard at 734 some act In not known though even this 11 12 892 So 2d at 1268 often called the until a knowledge of facts that would constructive suing prevent the creditor from availing himself of his of action For purposes connected or where the debtor himself has done 3 to contract the creditor from proceedings which prevented or cause coupled a rule actual or reasonable person damage occurred and the defendant Harvey 593 So 2d at 354 Constructive to obtains plaintiff indicate to discovery an Griffin 2000 knowledge consists of the facts excite attention and call for s inquiry or to put a reasonably Griffin 2000 2122 at p 9 deciding whether the plaintiff had constructive 6 knowledge App La 5 26 06 diligence 1 Cir 12 22 05 930 something is deemed to know what he could have discovered plaintiff reasonable through 6 a So 2d 20 Tramontin 928 So 2d 29 32 writ denied 2006 0155 However unless the prescription plaintiff knew exercise of reasonable tortious added acts 2001 2707 at p issue is the reasonableness of the education and level of prescription manifest 9 892 and error or 2d So clearly at 1267 Development appellate the at the district court s see Stobart may have been caused by emphasis The overriding 439 La 1983 after act light of the nature hearing on considering his of the defendant s the peremptory fact are State Department 882 83 v La 1993 even exception reviewed under the of Transportation The manifest Liability La 1987 light of the record reviewed in its per curiam Insurance Essentially if the entirety Company findings an weighed the evidence differently 892 So 2d at 1267 Stobart 617 So 2d at 882 83 as Virgil v 507 So 2d 825 are appellate though convinced that had it been sitting 7 error when the evidence before the trier solely of written reports records and depositions 826 would have through the 828 So 2d at 511 findings of 617 So 2d 880 American Guarantee and reverse even of running wrong standard of review Carter 2004 0646 at p standard of review applies of fact consists the that 12 828 So 2d at 511 2001 2707 at p If evidence is introduced of commence plaintiff s in intelligence La apprehension mere should have known 12 Plauche 439 So 2d 437 v Campo or to diligence that his problem Campo Gunter conduct plaintiffs a be wrong is insufficient may Tramontin 2004 2286 pp 5 v reasonable in court may not the trier of fact it Carter 2004 0646 at p 9 ANALYSIS The fourth category However we maintained 5 comprising the discovery rule is asserted here mindful that are contra that apprehension Although the plaintiff something of the Campo damage is certified 2001 2707 at p defendant to ability s offers the plaintiff curiosity has notice and suit was was to the filed sustained or or non or valentem on September 29 Thus on See had put 2005 Cichirillo v 9 La 11 29 05 917 parties the discovery rule but of facts sufficient only to person on until incite guard 812 So 2d at 734 at p 9 plaintiff more than a year after the damage petition the action had prescribed to show that 4 6 93 2361 prescription had been 635 So 2d at 210 12 928 So 2d at 32 33 La App were as Sandoz v Tramontin Dolphin Services 1 Cir 1989 primary facts supporting the trial prescribed jeopardize the claims reasonably minded a the face of the Wimberly 555 So 2d 996 998 The and a suspended by the theory asserted under the doctrine of contra 2004 2286 at pp Inc to wait until the petition the accident occurred in December of 2003 and the burden shifted to the intenupted constructive mere delay could erode a evidence Griffin 2000 2122 inquiry According relevant than at p through extensive testing Such the needs of both real to excite attention and call for confirmed or plaintiff to plaintiff by interrupting prescription to the protection allow the 2004 2894 2004 2918 p Balancing 430 not more are begin the running of to 828 So 2d at 511 preserve Avondale Industries Inc So 2d 424 must have by prescription against stale afforded protection 12 2004 2286 be wrong may prescription the discovery rule does cause exceptions Tramontin only under special circumstances 928 So 2d at 32 valentem non follows 8 court s finding that the action 1 the end of cracks in the been February casing near By the which the to the cracks as pointed 2 root cause a After the the our we were the by petition and the at the court incite and a curiosity use be the of back should have known of or the end of June 2004 was as evidence manifestly or subrogated excite attention likely responsible defendant as to at clearly We agree that the facts known or a the trial court hearing June of 2004 to Gulf South and thus its to the deposition accepted that the trial cannot say to thought as investigation ensued and found that Oil knew factual determinations sufficient damages was begin the running of prescription by review of the wrong in its knowable discovered and additional discovery rule hearing s In addition welding leakage stopped had been considered and Frank reviewing the facts presented facts sufficient to From welding of the seepage was also known that the well had of the leaks possible cause company contracted with for the welding for the job was of the lowest crack and that the point No later than June of 2004 potential applied It couplings at plugged the video of the well showed of 2004 or insurer Oil the cause of Griffin 2000 2122 at p 9 812 So 2d at 734 Based inquiry on which those facts eventually Gulf South did indeed led to the mind of the cause of the seepage would be advantageous prerequisite at p 9 812 impediment to the another contra a trial at 734 alleged confirmation While on commencement So 2d or at further in Gulf South the merits that level of certitude is of prescription Nor did exception for evidentiary confirmation of a our ignorance induced by Frank non call Thus See Griffin s cause not a 2000 2122 review reveal evidence of any s even acts that could have triggered though Oil showed that the discovery rule applied to extend prescription beyond the date of the accident 9 in December of 2003 and ended no Oil 3456 prescription later than June 30 2005 however months after the one did not provides finding of fact and the finding may not 617 So 2d at 882 particular the appeal are reasons assessed period had 3492 arts 29 3454 several 2005 run reasonable basis for the trial not manifestly erroneous findings of the trial error the court court s of See Stobart court of fact or law in this basis for reversal we to before June 30 2004 September Thus in the absence of any case we see no For these was the factual reverse a on or See LSA C C file suit until year prescriptive When the record appeal commenced affirm the plaintiff judgment of the trial court Costs of Oil Insurance Limited AFFIRMED 2 Although the suit was filed after Hurricane Katrina the suspension of prescription provided by LSA R S 9 5822 has no application if the prescriptive period had run before the statutory threshold date of August 26 2005 10 See LSA R S 9 5822A
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