Matheny v. Ludwig

742 So. 2d 1029, 1999 WL 735872
CourtLouisiana Court of Appeal
DecidedSeptember 22, 1999
Docket32,288-CA
StatusPublished
Cited by17 cases

This text of 742 So. 2d 1029 (Matheny v. Ludwig) 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
Matheny v. Ludwig, 742 So. 2d 1029, 1999 WL 735872 (La. Ct. App. 1999).

Opinion

742 So.2d 1029 (1999)

Roy W. MATHENY and Sara Matheny, Plaintiffs-Appellees.
v.
Dennis Ray LUDWIG and Shelley Renee Ludwig, Defendants-Appellees.

No. 32,288-CA.

Court of Appeal of Louisiana, Second Circuit.

September 22, 1999.

*1031 Joseph B. Stamey, Natchitoches, Counsel for Third Party Defendant-Appellant First Financial Ins. Co.

Davenport, Files & Kelly by Thomas W. Davenport, Jr., Monroe, Counsel for Defendants-Appellees.

Travis M. Holley, Bastrop, Counsel for Plaintiffs-Appellees.

Before STEWART, CARAWAY and DREW, JJ.

STEWART, J.

Roy and Sara Matheny (the "Mathenys") filed suit against Dennis and Shelley Ludwig (the "Ludwigs") after waste grease stored by the Ludwigs drained onto their property causing damages and a foul odor. The Ludwigs filed a third party demand against First Financial Insurance Company ("FFIC"), their liability insurer, after FFIC denied coverage and declined to provide a defense to the Mathenys' suit. The trial court rendered a judgment awarding the Mathenys $3,486 in damages. The trial court also determined the damages were within the coverage afforded by FFIC's policy and ordered FFIC to pay the Ludwigs $2,856.43 for attorney fees, costs, and expenses incurred in defending the suit. FFIC now appeals the trial court's finding of coverage and award of expenses to the Ludwigs. The Ludwigs answer the appeal to seek an increase in the amount awarded for their expenses in defending the suit and pursuing the appeal. We reverse the trial court's judgment in part and affirm in part.

FACTS

The Ludwigs own property on the north side of U.S. Highway 80 in Calhoun, Louisiana. The Mathenys own property on the south side of U.S. Highway 80, directly across from the Ludwigs' property. The Ludwigs' property is at a higher elevation than the Mathenys' property. The natural drainage flows from the north side of the highway into a culvert that passes beneath the highway and then along the west side of the Mathenys' property into an old creek bed. The Mathenys, after purchasing their property in February 1997, began improving the property to open a restaurant. Improvements included leveling the property, creating a parking area, and seeding the west side of the property with rye grass.

Dennis Ludwig collects waste grease from various businesses. He stores the waste grease in three tanks located on his property. When enough grease is collected, Ludwig sells it for recycling into animal feed. Near the end of February 1997, Roy Matheny noticed an offensive smell on his property and found grease along the south side of his property. Matheny informed Ludwig of the problem and contacted the Ouachita Parish Health Department which referred the matter to the Department of Environmental Quality ("DEQ").

Doug Wheelington ("Wheelington"), an environmental coordinator for DEQ's Office of Solid and Hazardous Waste—Solid Waste Division, investigated the incident on March 7, 1997. Wheelington found accumulations of waste grease residue on the Mathenys' property. The residue was of sufficient quantity to cause odors and possibly damage recently planted vegetation. Ludwig did not deny that the grease came from his property. He claimed that the cover had been left off of one of the tanks located beneath the roof of a building and heavy rainfall had caused the tank to overflow and drain beneath the highway and onto the Mathenys' property. Ludwig also claimed that the Mathenys' improvements to their property had impeded the natural drainage resulting in the waste grease covering a greater portion of the property. Wheelington accepted Ludwig's explanation. However, Wheelington also determined that Ludwig had violated a number of environmental regulations pertaining to the failure to properly dispose of solid waste, the failure to notify of unauthorized *1032 discharges, and the failure to comply with solid waste regulations.[1]

Wheelington suggested ways to remedy the damage to the Mathenys' property. The suggestions included either removing the top two inches of contaminated soil and transporting it to a solid waste disposal facility or incorporating the contaminated area into the soil to allow bacteria to break down the waste grease. Both options also required the addition of new topsoil and reseeding of the contaminated area. Wheelington also contacted DEQ's Air Quality Division to determine whether a brush pile containing grease residue located at the rear of the Mathenys' property could be burned on-site. Ludwig agreed to remedy the situation to the Mathenys' satisfaction and in accordance with DEQ guidelines. Ludwig then contacted his liability insurer, FFIC. FFIC investigated Ludwig's claim and denied coverage pursuant to a "Total Pollution Exclusion Endorsement" contained in Ludwig's policy. Ludwig also contacted a contractor, John D. Huddleston, who agreed to remove the contaminated soil, add new topsoil, and reseed the area for $1,000 plus the cost of the seed. However, Huddleston was unable to do the job because of other obligations.

When Matheny learned that Ludwig's insurer would not cover the claim and nothing further was done by Ludwig to remedy the problem, Matheny contracted with others to clear and bury the contaminated soil, burn the brush pile, spread new dirt, and reseed the area. The Mathenys also filed the instant suit against the Ludwigs in April 1997, seeking damages for the expenses incurred in remedying the contaminated area, the delay in the opening of their restaurant, and the inconvenience caused by the noxious odors from the waste grease. The Ludwigs then filed a third party demand against FFIC challenging the denial of coverage and seeking reimbursement for expenses incurred in defending against the Mathenys' suit.

After a bench trial, the trial court determined that the Mathenys were entitled to damages in the amount of $3,486 to cover the costs of remedying their property. The trial court also determined that the pollution exclusion contained in the Ludwigs' liability policy did not exclude coverage. The basis for the trial court's determination was that DEQ did not categorize the waste grease as either a pollutant or a hazardous material, but rather referred to it as a waste product. The trial court concluded that waste grease is biodegradable and can be simply plowed into the ground without causing environmental damage. Additionally, the trial court noted that the particular situation at issue did not involve the clean up of classic hazardous waste and did not arise from the illegal handling of any products. Because the Ludwigs had to hire an attorney to represent them when FFIC denied coverage and declined to defend the suit, the trial court awarded them $2,856.43 on their third party demand. This appeal followed.

DISCUSSION

Insurance Coverage

The first issue to be addressed is FFIC's contention that the trial court erred in finding that the pollution exclusion endorsement contained in the Ludwigs' liability policy did not exclude coverage and in finding that the waste grease was not pollution which would be excluded from coverage. FFIC asserts that the recent Louisiana Supreme Court decision in Ducote v. Koch Pipeline Co., L.P., 98-0942 (La.1/20/99),730 So.2d 432, interpreting the same pollution exclusion at issue here favors a finding of no coverage. We agree.

In Ducote, supra, a release of anhydrous ammonia occurred when a tractor overturned and its blade struck a pipeline. Ramona Ducote filed suit alleging that she sustained personal injuries as a result of *1033 the ammonia exposure.

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Bluebook (online)
742 So. 2d 1029, 1999 WL 735872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matheny-v-ludwig-lactapp-1999.