Oil & Gas Clean-Up Not "Capped"

Louisiana's long relationship with oil and gas has been profitable for both the oil and gas industry and Louisiana's citizens. However, the nature and extent of the duty to restore the land after drilling has often been a disputed and litigated issue. Recently, the Louisiana Supreme Court's decision in State v. Louisiana Land and Exploration Co., 2012-0884 (La. 1/30/13), - So.3d - added clarity to the law by establishing that the presence of a Court-approved remediation plan does not create a "cap" on damages.

The Louisiana Legislature passed La. R.S. 30:29 to provide a procedure for the clean-up, or "remediation," of oilfield, exploration and production sites. Before this statute, a plaintiff who was awarded monetary "remediation" damages to restore land was not obligated to actually use the money to perform remediation work. The purpose of La. R.S. 30:29 was to ensure that any money awarded to remediate polluted sites be used for this purpose. By the statute, any such award is to be deposited with the Court and spent under a Court-approved plan.

Even after the statute, it remained unclear whether a Court's approval of a remediation plan created a "damages cap" whereby the plaintiff landowner could not recover in excess of the plan. This issue was resolved in State v. Louisiana Land and Exploration Co.

The suit involved the State's action for remediation of land owned by the State and managed by the Vermilion Parish School Board. The property was allegedly polluted by oil and gas exploration performed pursuant to a mineral lease. Consistent with recovery allowed in earlier cases, the State sought to recover damages in excess of the remediation costs. Attorneys for one of the defendants filed a motion for partial summary judgment and argued that, under La. R.S. 30:29, the plaintiffs did not have a right to seek damages in excess of the amount necessary to complete the Court's remediation plan

The trial court held the plaintiffs could only recover damages equal to the amount listed in the Court's remediation plan. The appellate court overturned the trial court's decision and held that the landowner could recover damages in excess of the Court's plan, whether those damages are based on a contract or tort law. The Supreme Court affirmed the appellate court's decision and confirmed that there is no "cap" on damages.

Before and after State v. Louisiana Land and Exploration Co., an award for damages in excess of the remediation plan is available and arises from a private right in either contract or tort law. Contract damages are permitted if they are expressly provided by the contract. If contract damages are not available, tort damages may be recovered if the plaintiff shows that the defendant acted unreasonably or excessively in its exploration of gas, oil or minerals. See Terrebonne Parish School Bd. v. Castex Energy, Inc., 2004-0968, p. 10 (La. 1/9/05), 893 So.2d 789.

In view of the State v. Louisiana Land and Exploration Co. decision, oil and gas companies should be aware that they face exposure in excess of the statutory remediation plan, making them potentially liable for far more than just clean-up.

The “open and obvious” defense remains alive and well in Louisiana according to an article penned recently by Professor John M. Church of the LSU Law Center for the Louisiana Association of Defense Counsel. In April 2013, the Louisiana Supreme Court announced Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), 113 So.3d 175, which muddied the waters regarding use of the “open and obvious” defense. Some read Broussard as a pronouncement that the “open and obvious” defense was essentially dead in Louisiana. However, as reflected in Professor Church’s article, subsequent Louisiana Supreme Court decisions have given new life to the defense.

The defense is based upon the premise that an “open and obvious” defect is non-hazardous, because a reasonably-attentive plaintiff could or should have avoided the harm in the exercise of due care. Before Broussard, courts routinely ruled that a defendant owed no duty to a plaintiff when the alleged defect was “open and obvious.” Following Broussard, courts began to shift the analysis from a question of duty (an issue of law) to a factor that should be considered when analyzing a potential breach of that duty (an issue of fact). As such, some courts concluded that the defense was not properly addressed at the summary judgment stage.

In October 2014, the Supreme Court appeared to alter course when it affirmed a summary judgment granted on grounds that the alleged defect presented an open and obvious condition. See Bufkin v. Felipe’s Louisiana, LLC, 2014-0288 (La. 10/15/14), — So.3d — 2014 WL 5394087. In reaching this decision, the Bufkin Court focused on the duty element of plaintiff’s case, which seemingly contradicted prior interpretations of Broussard. Thereafter, the Court went even further, affirmatively stating that “[a]ny reading of Broussard interpreting it as a limit on summary judgment practice involving issues of unreasonable risk of harm is a misinterpretation of the Broussard case.” Allen v. Lockwood, 2014-1724 (La. 2/13/15), 156 So.3d 650.

According to Professor Church, Bufkin and Allen reflect a shift back to an analysis of the open and obvious defense on the duty level and remove any doubt regarding whether summary judgment is appropriate in this setting. Professor Church anticipates that the Supreme Court will continue to clarify this doctrine in future decisions. For now, Broussard remains an obstacle, albeit shrinking, in the defense of trip and fall claims.

Author: C. Reynolds LeBlanc

The Jones Act is a federal statute which enables maritime workers that are considered “seaman” to sue their employers for any injuries sustained while on the job. Sanchez v. Smart Fabricators of Texas, L.L.C., No, 19-20506, ____F.3d____, (2021). Because Congress never defined the term, courts have struggled to determine which maritime workers are “seaman.” The United States Fifth Circuit Court of Appeals is no stranger to this struggle. The Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) established a two factor test to determine seaman status. The first prong asked whether the plaintiff’s work contributed to the function of a vessel or fleet of vessels. The worker in Sanchez satisfied this first prong. The “second prong” asked whether a worker has a connection to a vessel or fleet of vessels that is substantial in terms of duration and nature. The recent decision in Sanchez helps to gauge when a worker’s connection to a vessel will be regarded as substantial in its nature.

Gabriel Sanchez was employed by Smart Fabricators of Texas, LLC (“SmartFab”) as a land-based welder. Sanchez worked for SmartFab on two jack-up barges owned by SmartFab’s customer, Enterprise Offshore Drilling LLC. On August 8, 2018, while working on the deck of one of the jack-up barges, Sanchez fell and sustained injuries. He filed suit in state court. SmartFab removed the case to federal court.

Sanchez moved to remand the suit to state court, citing to his seaman status under the Jones Act. The district court denied Sanchez’s motion to remand. It also granted SmartFab’s motion for summary judgment on the grounds that Sanchez was not a seaman and thus was not covered under the Jones Act. On appeal, a Fifth Circuit panel initially held that Sanchez satisfied the requirements of the seaman status test. In an en banc opinion, this analysis was called into question.

The full Fifth Circuit explored a trilogy of Supreme Court’s cases it found “enormously helpful” in giving meaning to the term seaman: (1) McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991), (2) Chandris, Inc. v. Latsis, and (3) Harbor Tug and Barge Co. v. Papai, 520 U.S. 548 (1997). After reviewing these cases, the Fifth Circuit concluded that simply asking whether a worker is exposed to the “perils of the sea” is not enough to resolve the nature element. Under Sanchez, courts must also consider the following:

(1) Does the worker owe his allegiance to the vessel, rather than simply to a shoreside employer;

(2) Is the work sea-based or involve seagoing activity; and

(3) (a) is the worker’s assignment to a vessel limited to performance of a discrete task after which the worker’s connection to the vessel ends, or

(3) (b) does the worker’s assignment include sailing with the vessel from port to port or location to location?

The established facts in Sanchez showed that the plaintiff’s work was not sea-based. He had no permanent connection to any vessel. Much of his work involved activities when the rig was “jacked-up” and therefore not in navigation. Following its redefined analysis, Sanchez held that seaman status was not present because the nature of the plaintiff’s work did not reflect a substantial connection to a vessel.