Labbe Serv. Garage Inc. v. LBM Distributors, Inc.

650 So. 2d 824, 1995 WL 36283
CourtLouisiana Court of Appeal
DecidedFebruary 1, 1995
Docket94-1043
StatusPublished
Cited by15 cases

This text of 650 So. 2d 824 (Labbe Serv. Garage Inc. v. LBM Distributors, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Labbe Serv. Garage Inc. v. LBM Distributors, Inc., 650 So. 2d 824, 1995 WL 36283 (La. Ct. App. 1995).

Opinion

650 So.2d 824 (1995)

LABBE SERVICE GARAGE INC., Claude Labbe, Esta Labbe and Isadore Labbe, Plaintiffs-Appellants,
v.
LBM DISTRIBUTORS, INC., et al., Defendants-Appellees.

No. 94-1043.

Court of Appeal of Louisiana, Third Circuit.

February 1, 1995.

*825 Jeffrey Ackermann, Lafayette, for Labbe Service Garage Inc., et al.

Steven J. Dupuis, Lafayette, for LBM Distributors Inc., et al.

Thomas Martin McNamara, Lafayette, for Chevron USA Products Co.

Ian Douglas Lindsey, Baton Rouge, for Kai Midboe, Secretary, Dept. of Environmental Quality.

William C. Kaufman, III, Baton Rouge, for Federated Ins. Co.

Before DOUCET, C.J., and THIBODEAUX and SULLIVAN, JJ.

SULLIVAN, Judge.

This suit concerns damage to immovable property. Plaintiff, Labbe Service Garage, Incorporated,[1] sued defendants, LBM Distributors, Inc., Federated Mutual Insurance Company (LBM's insurer), Chevron USA and the State of Louisiana, Department of Environmental Quality (DEQ), alleging that these defendants were liable for soil and groundwater contamination caused by leaking underground storage tanks on plaintiff's property in Duson, Louisiana. The trial court granted defendants' motions for summary judgment, based on pleas of the peremptory exception of prescription, and dismissed plaintiff's suit. In so ruling, the trial court determined that the plaintiff knew of the damages with sufficient certainty more than one year prior to the filing of this suit. After its motion for new trial was denied, plaintiff appealed.

On appeal, plaintiff contends that summary judgment on the prescription issue in this case was improper. After thoroughly reviewing the record, we conclude that the trial court erred in granting summary judgment. Accordingly, we reverse.

FACTS AND PROCEDURAL HISTORY

Plaintiff operated a gas station/automotive repair shop from 1946 to 1987 on the property at issue, which is located on U.S. Highway 90 in Duson. Gulf Oil Corporation had originally installed the tanks and owned them until March 1, 1982, when the tanks were sold to LBM, a regional bulk distributor. Gulf was later dissolved in a corporate merger with Chevron. At some point after the 1987 closure of the business, the Labbe brothers decided to attempt to lease the premises to a third party for use as a convenience store. The premises underwent refurbishment, *826 including the removal of the three underground storage tanks.

On September 20, 1990, the three tanks, which LBM owned, were removed from the ground by Boss Construction Company. Claude and Isadore Labbe were present for the removal, as were Richard Goudeau of DEQ and Russell LeBlanc of LBM. The environmental contracting division of John E. Chance and Associates removed soil samples from four points surrounding the site after the tanks were removed on that date. Thereafter, during October and November of 1990, approximately 100 cubic feet of dirt which had surrounded the tanks was removed from the property.

On March 11, 1991, Claude Labbe called Richard Goudeau of DEQ to express his concern about possible contamination left on the site in unremoved product line trenches and near the gas pump dispenser island. DEQ investigated the site on April 10, 1991 and found contamination. The product lines were removed. On May 7, 1991, Richard Goudeau of DEQ wrote a letter to LBM to confirm the April 10, 1991 test results. Goudeau also ordered LBM to hire a Response Action Contractor from a DEQ approved list to perform an Environmental Site Assessment (ESA). The Labbe brothers were not sent a copy of this letter nor were they made aware of the April 10 preliminary test results.

LBM hired Acadian Environmental, Incorporated (Acadian) to perform the ESA. Andre Aucoin of Acadian removed soil samples from the property and performed tests thereon in July of 1991. His first report indicated that the tests performed revealed evidence of contamination. He recommended further testing. A second, more thorough ESA was thereafter performed by Acadian. As a result of this ESA, which was detailed in an August 29, 1991 report, Acadian concluded that the property suffered from both soil and groundwater contamination. Acadian proposed a series of environmental remediation techniques designed to decontaminate the site. The Labbe brothers were informed of the conclusions reached in both ESA reports as each was completed.

This suit was filed on May 4, 1992 against LBM, Chevron and the DEQ. Sometime thereafter, plaintiff filed an amended and supplemental petition which added Federated Mutual Insurance Company as a defendant.[2] On June 30, 1992, Chevron filed an exception of prescription in this matter. Chevron is the only defendant to have filed this exception. No hearing on this exception was ever held, and the trial court did not rule on the merits of this exception.

The parties proceeded with discovery. On March 15, 1993, the depositions of Claude, Isadore and Esta Labbe were taken. Claude was questioned and answered, in part, as follows:

Q. Mr. Labbe, when did you first become aware of this contamination that's alleged?
A. November 20—I'm sorry, September 20, 1960 [sic] is when they took the tanks off.
Q. I'm sorry, I didn't get the year.
A. 1990, in September.
Q. Is that when you first became aware that there was a problem?
A. No, no. I didn't—I was not aware. It's DEQ that was aware of it.
Q. But when did you first become aware of it?
A. The same day Richard Gaudet [sic, Goudeau] came over.

Additionally, during Esta's deposition, the following colloquy occurred:

Q. When did you first become aware that someone was claiming that tanks out on your property might have leaked?
A. The best I can recollect is when the tanks were removed.
Q. Do you remember when that was?
A. Let's see. I'm sorry, I don't remember, sir.
Q. That's fine. Just so we're clear, when you say the tanks were removed, do you mean the gasoline tanks at the northwest corner that were removed by Mr. Patin. Is that what you're referring to?
*827 A. The gas tanks were dug out by Boss. I think it was Boss Construction.
Q. But that's when you first became aware that someone said there might have been some leakage; is that right?
A. As far as I'm concerned, sir.

Based primarily upon the Labbe brothers' testimony, Chevron moved for summary judgment on the prescription issue on June 15, 1993. Chevron contended that, because the Labbes admitted to actually knowing of the contamination on September 20, 1990 (the date the tanks were removed), it was entitled to judgment pursuant to La.C.C. art. 3493 because this suit was not filed until May 4, 1992, over one year after this knowledge was obtained. In other words, the motion for summary judgment was based upon the plea of prescription. LBM followed with a motion for partial summary judgment on July 7, 1993. Thereafter, on July 15, 1993, DEQ filed a motion for summary judgment, and Federated Mutual filed a motion for partial summary judgment. The trial court scheduled a hearing on the motions for summary judgment for August 16, 1993.

During the interim period, the parties took the depositions of Richard Goudeau of DEQ on July 22, 1993 and Andre Aucoin of Acadian Environmental on August 9, 1993.

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Bluebook (online)
650 So. 2d 824, 1995 WL 36283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/labbe-serv-garage-inc-v-lbm-distributors-inc-lactapp-1995.