Opinion
2017 CA 1662, 2017 CA 1663, 2017 CA 1664, 2017 CA 1665, 2017 CA 1666
04-10-2019
Travis HIGGINS v. WILLIAMS ENERGY PARTNER, L.P., Williams Olefins, L.L.C., The Williams Company, Inc., XYZ Insurance Company, Chicago Bridge and Iron Company, and X Insurance Company Artie Hudson, Jeffery D. Wells v. Williams Olefins Development, L.L.C., Williams Olefins, L.L.C., Williams Olefins Feedstock Pipelines, L.L.C., XYZ Insurance Company, Cajun Paving & Construction of Acadiana, L.L.C., X Insurance Company, Turner Industries Holdings Company, L.L.C., Y Insurance Company, Brock Services, L.L.C., and X-Y Insurance Company Emile Wade and Patricia Wade v. The Williams Companies, Inc., Williams Partners L.P., Williams Olefins, L.L.C., Lummus Technology, Inc., CB & I, Inc. of Texas and/or CB & I, Inc., Turner Industries Group, L.L.C., Turner Industrial Maintenance, L.L.C., Delta Tech Service, Inc., Industrial Specialty Services, LLC, GEO Heat Exchangers, L.L.C., GEO Field Services, L.L.C., Honeywell International, Inc., Union Texas Petrochemicals Corporation, Union Texas Products Corporation, Union Texas Petroleum Corporation, Union Texas Petroleum Holdings, Inc. Leroy Mitchell v. Williams Companies, Inc., Williams Olefins, L.L.C., Williams Partners, L.P., Williams Partners HP, L.L.C., Black Marlin Pipeline LLC, Williams Ohio Valley Midstream, LLC, and Turner Industries Group, L.L.C. Mark Bateast, Terrence Crosby, Blake Jospeh, Tyrone Lawson, Alvin Long, Jr., Cheri Owens-Griffin, Mary Robinson, Bernard Sears, Aaron Stafford, Donitello Thomas, Calvin Vanner, Donald Wheaton, Asiag Williams, Marcus Wilson and Marcus Yates v. The Williams Companies, Inc., Williams Entergy Partners, L.P., Williams Olefins, L.L.C., The Williams Company, Inc., Williams Partners, L.P., Williams Partners GP, LLC, Williams Ohio Valley Midstream, LLC, Discovery Producer Services, LLC, Black Marline Pipeline, L.L.C., Turner Industries Group, L.L.C.
Maria A. Finley, Baton Rouge, LA, Attorney for Plaintiffs/Appellants Artie Hudson and Jeffery D. Wells Katie D. Bell, Lana D. Crump, Glenn M. Farnet, Amanda M. Collura-Day, Baton Rouge, LA, Attorneys for Defendant/Appellee Williams Olefins, L.L.C. Danial C. Vidrine, Baton Rouge, LA, Attorney for Plaintiff/Appellant Leroy Mitchell
Maria A. Finley, Baton Rouge, LA, Attorney for Plaintiffs/Appellants Artie Hudson and Jeffery D. Wells
Katie D. Bell, Lana D. Crump, Glenn M. Farnet, Amanda M. Collura-Day, Baton Rouge, LA, Attorneys for Defendant/Appellee Williams Olefins, L.L.C.
Danial C. Vidrine, Baton Rouge, LA, Attorney for Plaintiff/Appellant Leroy Mitchell
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
HOLDRIDGE, J.
Artie Hudson and Jeffery D. Wells (plaintiffs) appeal a trial court judgment granting summary judgment in favor of Williams Olefins, L.L.C., (defendant) and dismissing their claims with prejudice. For the reasons that follow, we reverse the trial court's grant of summary judgment and remand to the trial court for further proceedings.
We use the spelling set forth in the parties' petition, but note that during these proceedings the parties have also used the spelling "Jeffrey."
FACTUAL AND PROCEDURAL HISTORY
A companion case, Higgins v. Williams Energy Partner, L.P., 2017-1662 (La. App. 1 Cir. 12/12/18), 267 So.3d 1133, 2018 WL 6570801 rev'd, 2019-0049 (La. 3/6/19), 266 So.3d 897, 2019 WL 1150341, also rendered by this court, contains the factual and procedural background of the parties' litigation.
This litigation arises out of a June 13, 2013 chemical explosion at the Williams Olefins chemical plant near Geismar, Louisiana that is located in both Iberville and Ascension Parishes. The explosion occurred in connection with the production of propylene in the fractionation area of the plant. Specifically, a reboiler had been improperly cut off from a pressure-relief vent, causing it to over-pressurize and rupture. As a result of the explosion, numerous plaintiffs filed suit against various defendants for the injuries they sustained. The trial court consolidated the various suits for discovery purposes to division "D" of the trial court to be joined with the suit captioned "Travis Higgins v. Williams Energy Partners, L.P., et al., Suit No. 109,244. " At the time of the chemical explosion, the plaintiffs were employed by MMR Group, Inc., (MMR). Artie Hudson was working as a material and tool foreman and Jeffery D. Wells was working as a heavy equipment operator. MMR was a subcontractor of Chicago Bridge & Iron Company (CB & I), who had a contract with the defendant for construction work to be completed by CB & I, and its employees and subcontractors at the defendant's facility.
We note that while La. C.C.P. art. 1561 provides that two or more actions may be consolidated for trial, there is no provision that allows cases to be consolidated for discovery purposes. See Boh v. James Indus. Contractors, L.L.C., 2003-1211 (La. App. 4 Cir. 2/11/04), 868 So.2d 180, 186, writ denied, 2004-0456 (La. 3/5/04), 869 So.2d 801.
The consolidated cases in the instant matter consisted of Artie Hudson and Jeffery Wells, et al v. Williams Olefins Development, L.L.C., et al, Suit No. 109,301 and Leroy Mitchell v. Williams Companies, Inc., et al, Suit No. 110,285.
On February 12, 2014, the plaintiffs filed their petition for damages against the defendant alleging that the defendant failed to properly maintain, repair, and improve its pipeline and equipment on its premises, resulting in the explosion. The plaintiffs alleged that as a result of the defendant's negligence, they suffered severe injuries and damages. On March 12, 2014, the defendant filed a peremptory exception raising the objection of no right of action, arguing that the plaintiffs did not belong to the class of persons who had a right of action against it in tort under La. R.S. 23:1061(A)(3) because the plaintiffs were statutory employees of the defendant pursuant to the contract the defendant had with CB & I. Specifically, the defendant argued that the parties agreed that the defendant was the statutory employer of CB & I's employees and the employees of CB & I's subcontractors. Therefore, the defendant argued that the plaintiffs' exclusive remedy was limited under the Louisiana Workers' Compensation Act, La. R.S. 23:1020.1 et seq. (LWCA).
The plaintiffs named several other defendants in their petition for damages who were either dismissed from the suit or their claims are not being contested in the instant matter.
In support of its argument, the defendant submitted the affidavit of Larry Bayer, the Director of Operations and Technical Services for the defendant's facility, and the contract between the defendant and CB & I. The contract stated, in pertinent part:
[CB & I] and [the defendant] recognize[d], acknowledge[d], and agree[d] that in all cases where [CB & I's] employees (defined to include contractor's and subcontractors' direct, borrowed, special, or statutory employees) [were] performing work in the state of Louisiana or are otherwise covered by the [LWCA], LSA-R.S. 23:1021 et seq. ; the work [was] an integral part of and [was] essential to the ability of the [defendant] to generate [its] goods, products, and services for the purpose of LSA-R.S. 23:1061(A)(1), and [the defendant] and [CB & I] agree[d] that [the defendant was] the statutory employer of [CB & I]'s employees for purposes of LSA-R.S. 23:1061(A)(3) and that [the defendant was] entitled to the protections afforded a statutory employer under Louisiana law.
Additionally, Larry Bayer's affidavit stated that the work being performed by the plaintiffs at the defendant's facility at the time of the chemical explosion was part of an expansion project. The affidavit further stated that "the work being performed by CB & I's employees and subcontractors at the time of the incident was an integral part of [the defendant's] ethylene production capabilities and essential to [the defendant's] capacity to produce its core product, ethylene." Thus, the defendant argued that La. R.S. 23:1032 was the plaintiffs' exclusive remedy, which provided that LWCA was an employee's only remedy for a work-related injury, except for a suit based on an intentional act. See La. R.S. 23:1032(A). On May 7, 2014, the plaintiffs filed a "Motion and Order to Amend Petition for Damages" requesting to amend their petition for damages to include that the defendant intentionally caused the explosion through its acts and omissions. The plaintiffs argued that the intentional act of the defendant was an exception to the exclusive remedy provision provided by La. R.S. 23:1032. On May 23, 2014, the trial court held a hearing on the defendant's peremptory exception raising the objection of no right of action and the plaintiffs' motion to amend their petition for damages. In its oral reasons, the trial court noted that there was a contract between the defendant and CB & I for the work being performed by its employees and subcontractors, which included the plaintiffs. The trial court stated that the contract recognized a statutory employment relationship between the plaintiffs and the defendant. Thus, there was a rebuttable presumption in favor of statutory employment under La. R.S. 23:1061(A). The trial court further stated that the presumption could only be overcome by showing that the work undertaken by the defendant was not part of its trade, business, or occupation. La. R.S. 23:1061(A)(1). Because the contract between the parties specified that the construction work being done at the defendant's facility was an integral and essential part of the defendant's ability to generate its products and services, the trial court concluded that the plaintiffs failed to rebut the presumption of a statutory employer/employee relationship by the law mandated in La. R.S. 23:1061.
Louisiana Revised Statutes 23:1061(A)(3) provides:
"[A] statutory employer relationship shall not exist between the principal and the contractor's employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee's immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor's employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal's goods, products, or services."
On June 5, 2014, the trial court signed a judgment recognizing that the defendant was the statutory employer of the plaintiffs pursuant to La. R.S. 23:1061(A)(1) and (3), thereby granting the defendant's peremptory exception raising the objection of no right of action. The judgment further dismissed with prejudice the plaintiffs' negligence claims, but granted the plaintiffs' motion to amend their petition for damages to allege a claim for an intentional tort against the defendant.
On June 17, 2014, the plaintiffs fax-filed a motion for reconsideration of the trial court's judgment. On September 2, 2014, the trial court signed a judgment denying the plaintiffs' motion. The plaintiffs further sought supervisory writs on the trial court's judgment with this court and the Louisiana Supreme Court; both were denied.
On August 8, 2014, the plaintiffs filed their first amending petition for damages against the defendant, adding the following language to their petition, in pertinent part:
Defendant ... intentionally caused the explosion through [its] acts and omissions and [it] knew or should have known that the explosion was certain or substantially certain to occur and that Plaintiffs were certain or substantially certain to sustain injuries and damages from the explosion and due to the gate to the facility being locked.
On January 19, 2016, the defendant filed a motion for summary judgment arguing that there remained no genuine issue of material fact and that it was entitled to judgment as a matter of law. The defendant argued that the plaintiffs could not satisfy their burden of proving their claims for an intentional tort because "[t]he facts show[ed] that the June 13, 2013 incident was a tragic accident" that was caused by the over-pressurization of an out-of-service reboiler that ruptured. The defendant submitted a statement of uncontested material facts which revealed that the defendant's facility consisted of two reboiler heat exchangers at the base of its cooling tower. One reboiler was in operation (EA-425A) while the other was out-of-service (EA-425B). The defendant stated that the out-of-service reboiler (EA-425B) contained liquid propane and because the pressure relief was blocked, the reboiler ruptured causing the chemical explosion.
We note that the Louisiana Code of Civil Procedure was amended by 2015 La. Acts, No. 422, § 1, effective January 1, 2016. Section 2 of the 2015 La. Acts, No. 422, provides that: "[t]he provisions of this Act shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date of this Act." Here, the filing of the motion for summary judgment was filed after the effective date of 2015 La. Acts, No. 422. Thus, the new version of La. C.C.P. art. 966 applies to the instant matter.
A reboiler is a pressure vessel that operates as a heat exchanger to heat a process fluid to separate the gases from the heavier components.
In support of its motion for summary judgment, the defendant submitted an additional affidavit of Larry Bayer to explain the cause of the chemical explosion. In his affidavit, Larry Bayer stated, in pertinent part:
The over-pressurization of the out-of-service reboiler [ (EA-425B) ] was caused by the union of three separate and distinct events occurring simultaneously: (1) the out-of-service reboiler (EA-425B) unexpectedly contained liquid propane/propylene despite having its process valves closed; (2) a valve was improperly opened that allowed heated quench water to flow into the out-of-service reboiler [ (EA-425B) ]; and (3) the pressure relief path for the out-of-service reboiler [ (EA-425B) ] was blocked due to the process inlet and outlet valves being closed. All three of these factors had to occur simultaneously for this accident to occur. If any one of them had not happened, the fire would not have occurred. The simultaneous occurrence of three events like this had never occurred in the history of the Geismar facility.
Thus, the defendant argued that the simultaneous occurrence of the three factors solely caused the chemical explosion. The defendant stated as to the first factor, the investigating committee was unable to determine the precise cause of the presence of the liquid hydrocarbons in the out-of-service reboiler (EA-425B). For the second factor, "the quench water flow valve to the out-of-service reboiler (EA-425B) was improperly opened just minutes before the reboiler ruptured. It was opened by an operations department employee who was trouble-shooting quench water problems through the in-service reboiler." According to the defendant, it argued that for the third factor, "the pressure relief path was blocked because of an ... Process Hazard Analysis ("PHA") recommendation by the [defendant's] management team was inadvertently implemented in the field in a different manner than recommended" and this error in implementation was not detected until the chemical explosion occurred. In response, the plaintiffs filed a memorandum in opposition to the defendant's motion for summary judgment, which included expert affidavits from Gregg S. Perkin, an independent engineering consultant employed by Engineering Partners International, LLC, and Greg McCormack, an engineer consultant. The experts' affidavits provided the history of the reboilers' modifications at the defendant's facility. Gregg S. Perkin stated in his affidavit that around 2001, block valves were added to the inlet and outlet process flow lines for the reboilers. According to Gregg S. Perkin, this modification left the reboilers in an unsafe condition because they were isolated from the pressure relief system of the defendant's facility, a hazard that would substantially result in over-pressurization.
Additionally, Gregg S. Perkin stated in his affidavit that the employees of the defendant knew the substantial risk of over pressurization of the reboilers because the defendant was warned multiple times that pressure relief was needed to the reboilers or they would fail. He stated that in 2006 the defendant underwent a PHA for safety management at its facility. The PHA provided a recommendation to the defendant that it needed to consider locking open at least one of the manual valves associated with each of the reboilers, so that the relief valves on top of the propylene fractionator could provide thermal relief protection for the reboilers. Gregg S. Perkin further stated in his affidavit that in 2008, CDI Engineering Solutions was hired by the defendant to perform a pressure relief valve study on the facility. The study concluded, in pertinent part:
There [were] block valves at the inlet and outlet to the shell side of the EA-425 A/B. Because those valves [were] not [car-sealed open], SV-421QA/QA w[ould] not provide overpressure relief protection to the shell side of the reboilers in the event of a fire or in the event of liquid expanding/vaporizing due to heat input from the hot side. Unless these valves [were] car[-] sealed open, additional overpressure protection w[ould] be needed for the shell side of EA-425A/B.
SV-421QA/QA is the tag number for the pressure relief valves on top of the propylene fractionator.
A car-seal is a device that is placed on a valve in the designated position as an administrative control to keep the valve in the designated position.
The plaintiffs further argued that the defendant was aware of the hazardous condition because in 2010 the defendant reported that it car-sealed open the process outlet valves for both reboilers. However, in 2012 while updating the facility's piping and instrumentation diagram (P & ID), an employee of the defendant noted that one of the reboilers (EA-425B) was not connected to the pressure relief system. The employee noted on the P & ID revision approval form that only the in-service reboiler (EA-425A) was car-sealed open. This form was approved by the defendant's management, acknowledging that one of the reboilers (EA-425B) was not car-sealed open as recommended. Thus, the plaintiffs averred that the defendant knew that the out-of-service reboiler was not car-sealed open despite the numerous warnings it was given that one of the reboilers (EA-425B) was not connected to the pressure relief system. As a result, the plaintiffs argued that the defendant was aware of the hazardous condition of the reboilers for years, but never did anything about it, resulting in the chemical explosion.
The P & ID was a drawing that showed what was installed in the field, all of the piping and equipment, and any instrumentation and electrical components.
The defendant's management who approved the P & ID included: Larry Bayer (plant manager), Parker Tucker (operational manager), Erick Comeaux (technical manager), and Jake Beret (safety manager).
Additionally, the plaintiffs argued in their memorandum in opposition to the defendant's motion for summary judgment that they did not have an opportunity to perform discovery pursuant to La. C.C.P. art. 966(A). The plaintiffs argued that although the Document Discovery Plan (DDP) was adopted in January of 2015 by the parties, they did not receive discovery requests that were made to the defendant. The plaintiffs further argued that they did not have an opportunity to comply with all of the requirements of the DDP prior to the defendant's motion for summary judgment being filed.
The defendant filed a reply memorandum, arguing that the plaintiffs failed to present any competent evidence of the specific material facts it claimed were disputed pursuant to La. C.C.P. art. 967(B). The defendant further argued that the plaintiffs' contention that they did not have a sufficient opportunity for discovery was false because the DDP was adopted in January of 2015 and its motion for summary judgment was filed in January of 2016. Therefore, the defendant argued that the plaintiffs had sufficient time to obtain discovery. The defendant further stated that it offered to provide the plaintiffs a hard drive containing all document production for the case; however, the plaintiffs were required to sign a protective order authorized by DDP. Because the plaintiffs refused to sign the protective order, this resulted in them not receiving the information.
On May 24, 2016, the trial court held a hearing on the defendant's motion for summary judgment. At the hearing, the defendant argued that in December of 2008, the defendant's management implemented the 2006 PHA recommendation and it assigned this task to the operations department to implement. In January of 2010, the operations department reported that the 2006 PHA recommendation had been implemented. The defendant argued that it discovered that a mistake was made during the implementation of the 2006 PHA recommendation. This mistake included failing to car-seal open the out-of-service reboiler (EA-425B). However, this mistake was not discovered until after the chemical explosion. The defendant argued that although it made a mistake, it did not fail to address the hazardous condition of the reboilers, as Larry Bayer's affidavit affirmed that the defendant was under the impression that it had addressed the reboiler pressure-relief problem by January 2010.
At the conclusion of the hearing, the trial court took the matter under advisement. On July 11, 2016, the trial court signed a judgment granting the defendant's motion for summary judgment and dismissing the plaintiffs' claims with prejudice. The trial court provided reasons for judgment on July 12, 2016. The plaintiffs devolutively appealed from the July 11, 2016, judgment assigning as error that the trial court erred in finding that the defendant was the statutory employer of the plaintiffs at the time of the accident pursuant to La. R.S. 23:1032, and that the trial court erred in granting the defendant's motion for summary judgment.
In this court, the plaintiffs filed a motion to amend their original brief, which we grant.
STANDARD OF REVIEW
Summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action ... and shall be construed to accomplish these ends." La. C.C.P. art. 966(A)(2). In reviewing the trial court's decision on a motion for summary judgment, this court applies a de novo standard of review using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750.
The initial burden of proof is on the mover. If the mover will not bear the burden of proof at trial, the mover's burden does not require him to negate all essential elements of the adverse party's claim, but only to point out to the court the absence of factual support for one or more of the elements necessary to the adverse party's claim. Thereafter, the burden is on the adverse party to produce factual support that is sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).
"After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Larson v. XYZ Insurance Company, 2016-0745 (La. 5/3/17), 226 So.3d 412, 416.
DISCUSSION
On March 6, 2019, the Louisiana Supreme Court granted a writ of certiorari in Higgins, 267 So.3d 1133, 2018 WL 6570801. In its ruling, the Supreme Court reversed this court's ruling that found no intentional tort on behalf of the defendant in the instant matter. The Supreme Court used the following language in granting the writ application: "Granted. The district court's judgment and the decision of the court of appeal are reversed, because there remain genuine issues of material fact as to whether the defendant is liable to this plaintiff as the result of an intentional act pursuant to La. Rev. Stat. 23:1032(B). See La. Code Civ. Proc. art. 966(D)(1). The matter is remanded to the district court for further proceedings." Higgins v. Williams Energy Partner, L.P., 2019-0049 (La. 3/6/19), 266 So.3d 897, 2019 WL 1150341.
Although discussed in different opinions, Higgins, 267 So.3d 1133, 2018 WL 6570801, and this case are companion cases arising out of the same factual background before this court. See footnote 3.
In accordance with the Supreme Court's opinion, we find that there remain genuine issues of material fact as to whether the defendant's conduct rises to the level of an intentional tort. Specifically, there remains a genuine issue of material fact as to whether the defendant knew with substantial certainty that the chemical explosion was to occur, causing harm to the plaintiffs pursuant to La. R.S. 23:1032(B). Therefore, the trial court's judgment is reversed and this case is remanded to the trial court for further proceedings.
CONCLUSION
Based on the foregoing, the July 11, 2016 judgment appealed from is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed evenly between the parties.