MICHELLE MARSHALL, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN, AALIYAH JAMISON, BRANDI MARSHALL, AND JEREMY ROBERTS, DOROTHY JONES, JIM ADAMS, AND TINA ANDREWS, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN JEFFERY DARNADO, DANTE DARNADO, ET AL. Vs. AIR LIQUIDE-BIG THREE, INC., AIR LIQUIDE CORPORATION, AIR LIQUIDE AMERICA, L.P., GLOBAL LIME CALCINER OF LOUISIANA, INC., GLOBAL LIME, LLC, DAVID BERGERON AND E. ROY BAGGETT
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MICHELLE MARSHALL, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN, AALIYAH JAMISON, BRANDI MARSHALL, AND JEREMY ROBERTS, DOROTHY JONES, JIM ADAMS, AND TINA ANDREWS, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN JEFFERY DARNADO, DANTE DARNADO, ET AL. * NO. 2011-CA-0990 * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA ******* VERSUS AIR LIQUIDE-BIG THREE, INC., AIR LIQUIDE CORPORATION, AIR LIQUIDE AMERICA, L.P., GLOBAL LIME CALCINER OF LOUISIANA, INC., GLOBAL LIME, LLC, DAVID BERGERON AND E. ROY BAGGETT APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2005-8706, DIVISION “M” Honorable Paulette R. Irons, Judge ****** Judge Terri F. Love ****** (Court composed of Judge James F. McKay III, Judge Terri F. Love, Judge Daniel L. Dysart) (ON APPLICATION FOR REHEARING) Eric R. Nowak Shirin E. Harrell HARRELL & NOWAK, LLC 650 Poydras Street Suite 2107 New Orleans, LA 70130--6198 COUNSEL FOR MICHELLE MARSHALL, DOROTHY JONES, AND JIM ADAMS TINA ANDREWS, William T. McCall Erik N. Fain GUILLORY & McCALL, L.L.C. 901 Lakeshore Drive, Suite 1030 P. O. Drawer 1607 Lake Charles, LA 70602--1607 COUNSEL FOR ACE AMERICAN INSURANCE COMPANY Robert E. Kerrigan, Jr. Jonathan M. Walsh DEUTSCH, KERRIGAN & STILES, L.L.P. 755 Magazine Street New Orleans, LA 70130—3672 AND Louis C. LaCour, Jr. ADAMS AND REESE LLP 701 Poydras Street 4500 One Shell Square New Orleans, LA 70139 COUNSEL FOR CHARTIS SPECIALTY INSURANCE COMPANY F/K/A AMERICAN INTERNATIONAL SURPLUS LINES INSURANCE COMPANY AND COMMERCE AND INDUSTRY INSURANCE COMPANY, AS THE ALLEGED INSURERS OF GLOBAL LIME CALCINER OF LOUISIANA, LLC, AND GLOBAL LIME, LLC Erin Fury Parkinson Jose L. Barro, III McGLINCHEY STAFFORD, PLLC 601 Poydras Street 12th Floor New Orleans, LA 70130--3477 AND Richard W. Bryan, PRO HAC VICE Noel Edward Warren JACKSON & CAMPBELL, P.C. 1120 20th Street, N.W. South Tower Washington, DC 20036 COUNSEL FOR CHARTIS SPECIALTY INSURANCE COMPANY AND COMMERCE AND INDUSTRY INSURANCE COMPANY, AS THE ALLEGED INSURERS OF AIR LIQUIDE-BIG THREE, INC. F/K/A LINCOLN BIG THREE, INC. AND AIR LIQUIDE AMERICA L.P. F/K/A AIR LIQUIDE AMERICA CORPORATION James M. Garner Debra J. Fischman Timothy B. Francis Mary Beth Akin SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street Suite 2800 New Orleans, LA 70112 COUNSEL FOR AIR LIQUIDE-BIG THREE, INC. F/K/A LINCOLN BIG THREE, INC. AND AIR LIQUIDE AMERICA L.P. F/K/A AIR LIQUIDE AMERICA CORPORATION REHEARING GRANTED FOR CLARIFICATION October 5, 2012 Air Liquide-Big Three, Inc. f/k/a Lincoln Big Three, Inc. and Air Liquide America L.P. f/k/a Air Liquide America Corporation’s (“AL”) application for rehearing is granted solely for clarification. This Court’s original opinion failed to indicate that AL adopted the arguments and specifications of error raised by its insurers, Chartis Specialty Insurance Company f/k/a American International Surplus Lines Insurance Company (“Chartis”) and Commerce and Industry Insurance Company (“C&I”). Therefore, our opinion is clarified to reflect that AL also appealed causation for medical damages, the damages awarded to Michelle Marshall, class decertification, and class redefinition. ACE American Insurance Company’s (“ACE”) application for rehearing is granted solely for clarification. This Court referred to the insurance companies throughout the opinion as the “Insurance Defendants.” However, ACE did not appeal the trial court’s ruling regarding the number of occurrences and the application of non-cumulation clauses. Therefore, “Chartis and C&I” should have been utilized instead of “Insurance Defendants” in this Court’s analysis regarding the number of occurrences and the application of non-cumulation clauses. Chartis and C&I, in their capacity as alleged insurers of AL filed an 1 application for rehearing requesting that this Court correct its opinion regarding their appeal of taxation of costs. We stated that Chartis and C&I failed to brief the taxation of costs and deemed the issue abandoned. Chartis and C&I appealed the issue of taxation of costs in a separate appeal. However, this Court was unaware of the separate appeal, as it had not been lodged, briefing deadlines were not set, and the appeals were not consolidated. Therefore, we clarify that the issue of taxation of costs was not abandoned. In all other respects, Chartis and C&I’s application for rehearing is denied. Accordingly, our original opinion is clarified to reflect AL’s assignments of error, ACE’s appellate issues, and that Chartis and C&I did not abandon an appeal of taxation of costs. In all other respects, our original opinion remains unchanged. REHEARING GRANTED FOR CLARIFICATION 2
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