Marshall Ex Rel. Minor Chil. v. Air Liquide-Big Three, Inc.

2 So. 3d 541, 2008 La.App. 4 Cir. 0668, 2008 La. App. LEXIS 1827, 2008 WL 5263857
CourtLouisiana Court of Appeal
DecidedDecember 17, 2008
Docket2008-CA-0668
StatusPublished
Cited by8 cases

This text of 2 So. 3d 541 (Marshall Ex Rel. Minor Chil. v. Air Liquide-Big Three, 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
Marshall Ex Rel. Minor Chil. v. Air Liquide-Big Three, Inc., 2 So. 3d 541, 2008 La.App. 4 Cir. 0668, 2008 La. App. LEXIS 1827, 2008 WL 5263857 (La. Ct. App. 2008).

Opinion

DAVID S. GORBATY, Judge.

| defendants appeal a judgment wherein the trial court granted plaintiffs’ Motion for Class Certification. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Air Liquide America operated a facility at 6600 Old Gentilly Road, in eastern New Orleans. The company manufactured and bottled acetylene from the 1980⅛ until it ceased operations sometime in the 1990’s. As part of its operation, Air Liquide stored carbide lime, a by-product of the acetylene manufacturing process, in an on-site im-poundment area, also known as a “sludge pond.” Carbide lime contains calcium hydroxide, which at sufficient levels of exposure can potentially cause irritation to the respiratory, digestive and visual system.

The Air Liquide facility remained dormant from the 1990’s until 2003 when Air Liquide contracted with Global Lime to remove the approximately 31,000 cubic yards of carbide lime from the impoundment area. The actual removal process began on September 15, 2003, and continued until some time in 2004. The removal process involved excavating and transporting the carbide lime by truck | Jrom Air Liquide to another disposal site. This removal process is what triggered the instant litigation.

Plaintiffs, either persons who resided near the facility or persons who worked in the area of the facility, claimed generally that in the course of the plant operation, carbide lime dust became airborne and drifted into the surrounding neighborhood. Additionally, once the removal process began, the trucks used to transport the carbide lime further dispersed dust into the air causing it to be deposited in the surrounding neighborhood. Plaintiffs filed suit on 6/28/05.

Defendants named in the original petition were Air Liquide-Big Three, Inc., fik/a Lincoln Big Three, Inc., Air Liquide America Corporation, Air Liquide America L.P. (collectively referred to as “Air Liq-uide”), Global Lime Calciner of Louisiana, LLC, Global Lime, LLC (collectively referred to as “Global Lime”), David Berger-on, and E. Roy Baggett, d/b/a RBCHMM. Plaintiffs also sought to be certified as a class, and to that end, filed a Motion to Certify Class on 2/27/06.

In plaintiffs’ First Supplemental and Amending Petition, filed on 10/10/06, defendants American International Specialty Lines, Commerce & Industry Insurance, ACE American Insurance Company, ACE Property and Casualty Insurance Company, Highlands Insurance Company, National Union Fire Insurance Company, Pacific Employers Insurance Company, J & B Trucking of Cameron, L.L.C., d/b/a J & B Trucking, ABC Company (an unknown trucking company), and Three C’s Proper *545 ties, Inc., were added. 1

|sAir Liquide; Commerce and Industry Insurance Company (Commerce & Industry) and American International Specialty Lines Insurance Company (American Int’l — Global Lime) (alleged insurers of Global Lime); National Union Fire Insurance Company (National Union) and American International Specialty Lines Insurance Company (American Int’l — Air Liquide) (alleged insurers of Air Liquide); and, ACE American Insurance Company and ACE Property & Casualty Insurance Company and Pacific Employers Insurance Company (collectively “ACE”) (alleged insurers of Air Liquide); each filed oppositions to plaintiffs’ Motion to Certify Class.

Following a hearing, a judgment was rendered on March 3, 2008. The trial court granted the motion to certify the class, defining the class as:

Any person, including named plaintiffs and their minor children, who resided or regularly worked within a one-mile radius of the Air Liquide America Facility located at 6600 Old Gentilly Road, New Orleans, Louisiana between September 2003 and the end of 2004, and who may have been exposed to calcium hydroxide coming from the Air Liquide facility.

The judgment also named Michelle Marshall, Dorothy Jones, Tina Andrews and Jim Adams as the class representatives. The trial court gave reasons for judgment.

Air Liquide, Commerce & Industry, American Int’l — Global, and ACE each filed suspensive appeals. National Union and American Int’l — Air Liquide filed a devolutive appeal.

I ¿STANDARD OF REVIEW:

The review of certification of class actions is bifurcated. The findings of fact are reviewed under the manifest error/clearly wrong standard, whereas the trial court’s decision to certify a class based on the facts is reviewed under an abuse of discretion standard. Watters v. Dept. of Social Services, 05-0324, -0325, - 0326, p. 6 (La.App. 4 Cir. 4/19/06), 929 So.2d 267, 273; Boudreaux v. Dept of Trans. and Dev., 96-0137, p. 5 (La.App. 1 Cir. 2/14/97), 690 So.2d 114, 119.

Appellants argue that an appellate court may take a less deferential approach to reviewing the factual findings where the trial court fails to “articulate the theory or evidentiary facts upon which its conclusion is based,” They cite Leal v. Dubois, 00-1285 (La.10/13/00), 769 So.2d 1182, and Bloxom v. Bloxom, 512 So.2d 839, 843 (La.1987) in support of this position. Appellants specifically argue that the trial court was bound to explain its reasons for accepting Dr. William Zegel’s methodology, but instead only summarized it, thereby requiring this Court to review the facts de novo.

Plaintiffs counter that appellants do not cite to a single class-action case for this proposition. Rather, the cases cited by appellants discuss the deference given to a judgment in light of a complete trial record.

After reviewing the trial court’s reasons for judgment, we find that the trial court sufficiently articulated the facts upon which it based its decision. Accordingly, we will employ the manifest error/clearly wrong standard to review those factual findings.

*546 | Jn reviewing factual findings, the reviewing court should not set aside the factual findings of the trial court absent manifest error or unless those findings are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, if a court of appeal determines that the trial court committed a reversible error of law or manifest error of fact, the court of appeal must ascertain the facts de novo from the record and render a judgment on the merits. LeBlanc v. Stevenson, 00-0157 (La.10/17/00), 770 So.2d 766. Although appellate courts should accord deference to the factfinder, they nonetheless have a constitutional duty to review facts. Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099, p. 8 (La.7/5/94), 639 So.2d 216, 221. Because appellate courts must perform this constitutional function, they have every right to determine whether the trial court ruling was clearly wrong based on the evidence or clearly without evidentiary support. Id. at p. 8-9, 639 So.2d at 221. The reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.

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2 So. 3d 541, 2008 La.App. 4 Cir. 0668, 2008 La. App. LEXIS 1827, 2008 WL 5263857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-ex-rel-minor-chil-v-air-liquide-big-three-inc-lactapp-2008.