STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
2020 CA 0602
S& P INVESTMENTS, LLC, ON TRACK INVESTMENTS, INC., AMORI DILA FAMIGLIA, LLC, SAM TALLO, AND PATRICIA TALLO
VERSUS
TRUNG NGUYEN, FRANCIS NGUYEN, SUPERKING SEAFOOD, LLC, MESA UNDERWRITERS SPECIALTY INSURANCE COMPANY, AND SCOTTSDALE INSURANCE COMPANY
CONSOLIDATED WITH
2020 CA 0603
nfl r SCOTTSDALE INSURANCE COMPANY AS SUBROGEE OF/ AND S& P INVESTMENTS, LLC, AND AMORI DILA FAMIGLIA, LLC
d VERSUS
SUPERKING SEAFOOD, LLC, TRUNG NGUYEN, DAU THI NGUYEN, FRANCIS NGUYEN, AND MESA UNDERWRITERS SPECIALTY INSURANCE COMPANY
Decision Rendered: . IAN 2 5 2021
APPEALED FROM THE 21St JUDICIAL DISTRICT COURT TANGIPAHOA PARISH, LOUISIANA DOCKET NUMBERS 2017- 0000020 and 2017- 1056
HONORABLE WILLIAM J. BURRIS, JUDGE PRO TEMPORE
Troy Allen Broussard Attorney for Defendant/ 1St Appellant, Lafayette, Louisiana Mesa Underwriters Specialty Insurance Company
Peter B. Sloss Attorneys for Plaintiffs/ 2nd Appellants, Timothy D. DePaula S& P Investments, LLC, On Track Tarryn E. Walsh Investments, Inc., and Amori Dila New Orleans, Louisiana Famiglia, LLC and Andre G. Coudrain Patrick G. Coudrain Hammond, Louisiana
Darrin M. O' Connor Attorneys for Defendant/ Appellee Ashley G. Haddad Lacox Propane Gas Company Covington, Louisiana
BEFORE: McDONALD, HOLDRIDGE, and PENZATO, 33. McDONALD, J.
In these consolidated suits, the district court rendered a summary judgment in
favor of a propane gas dealer, finding that the summary judgment evidence failed to
create a genuine issue of material fact as to the dealer's liability for fire -related
damages to the plaintiffs' business. The district court signed a judgment dismissing
all claims against the dealer with prejudice. The plaintiffs and a co- defendant insurer
separately appeal from the adverse judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 10, 2016, a fire occurred at Superking Seafood in Hammond,
Louisiana. The fire spread to Lee' s Drive Inn restaurant, an adjacent business.
Trung and Dau Thi Nguyen own the Superking Seafood building; Superking Seafood,
LLC operates a grocery and seafood business there; and, Francis Nguyen is a
member of Superking Seafood, LLC ( collectively, Superking). S& P Investments, LLC
and On Track Investments, Inc. own the Lee' s Drive Inn building and equipment
therein, and Amori Dila Famiglia, LLC operates Lee' s Drive Inn restaurant
collectively, S& P).
After the fire, it was determined the fire originated in Superking Seafood' s
boiling room, where Superking was using multiple burners to boil crawfish. The
burners were connected to an exterior propane tank installed at Superking Seafood
over five years earlier by Lacox Propane Gas Company ( Lacox), a propane gas
dealer. In January 2011, Lacox service technician Jody Wild installed a 250 -gallon
propane tank, and the Louisiana Liquefied Petroleum Gas Commission ( LPGC)
approved the installation. In March 2011, Mr. Wild returned, at Superking' s request,
and switched that tank out for a 500 -gallon tank. According to Mr. Wild, when he
switched the tanks, he ran the new tank's pressure up to 10 pounds per square inch
psi) to test for leaks, but he then lowered and set the tank's pressure to 5 psi, the
maximum allowed by applicable regulations. After the March 2011 installation, Mr.
Wild did not return to Superking Seafood. Lacox' s route salesmen, however,
continued to refill Superking Seafood' s propane tank on a regular basis. According to
2 Lacox route salesman Frank Brister, he last refilled the Superking Seafood tank on
April 3 and 7, 2016, seven and three days before the fire. After the fire, the propane
tank regulator showed the psi setting at 18 psi, 13 pounds over the allowable 5 psi
limit.
S& P filed suit against Superking and Mesa Underwriters Specialty Insurance
Company ( MUSIC), Superking Seafood, LLC' s insurer, and against Scottsdale
Insurance Company ( Scottsdale), S& P' s insurer, for fire -related damages to Lee' s
Drive Inn.' S& P later added Lacox as a defendant. Scottsdale filed a separate suit
against Superking, MUSIC, and also later added Lacox as a defendant. The district
court consolidated the suits.
In due course, Lacox filed a motion for summary judgment seeking dismissal from the suits. Lacox claimed the plaintiffs could not prove Lacox' s negligence
contributed to the fire, and, hence, there were no genuine issues of material fact as
to its lack of liability for fire -related damages. Superking Seafood, LLC, Francis
Nguyen, S& P, and MUSIC filed oppositions to Lacox' s motion. After a hearing, the
district court issued reasons for judgment, and, on January 15, 2020, signed a
judgment granting Lacox's motion for summary judgment and dismissing all claims
against Lacox with prejudice. MUSIC appealed and S& P appealed. Scottsdale did
not appeal.
ASSIGNMENTS OF ERROR
On appeal, S& P and MUSIC contend the district court erred in granting
summary judgment to Lacox because there are genuine issues of material fact as to:
1) Lacox's improper installation of the propane system at Superking Seafood, and
2) Lacox' s constructive knowledge of the unreasonable risks of harm associated with
the propane system. They also contend the district court erred in granting summary
judgment because: ( 1) the court failed to evaluate Lacox's liability under the higher
standard of care Lacox owed as a natural gas dealer; ( 2) the court erred in allowing
1 Sam and Patricia Tallo originally were also named plaintiffs, but the district court later dismissed their claims. On S& P' s motion, the district court also later dismissed S& P' s claims against Scottsdale.
3 Lacox to rely on affirmative defenses that Lacox waived by failing to adequately
plead them; and ( 3) even if adequately pled, Lacox failed to meet its burden of proof
under the affirmative defenses.
SUMMARY 3UDGMENT
Appellate courts review the grant or denial of a motion for summary
judgment de novo under the same criteria governing the district court' s
determination of whether summary judgment is appropriate. James v. Anderson, 16-
1361 ( La. App. 1 Cir. 6/ 29/ 17), 224 So3d 413, 417. 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. 966A( 3).
The summary judgment movant maintains the burden of proof. La. C. C. P. art.
966D( 1). Nevertheless, if the movant will not bear the burden of proof at trial on the
issue before the court on the motion, his burden is satisfied by pointing out an
absence of factual support for one or more elements essential to the adverse party's
claim, action, or defense. Thereafter, the adverse party must produce factual
support sufficient to establish he will be able to satisfy his evidentiary burden of
proof at trial. If the adverse party fails to meet this burden, there is no genuine
issue of material fact, and, if appropriate, the court shall
render summary judgment against him. La. C. C. P. arts. 966D( 1) and 9676;
Jefferson v. Nichols State Univ., 19- 1137 ( La. App. 1 Cir. 5/ 11/ 20), So. 3d ,
2020 WL 2315584 * 1, writ denied, 20- 00779 ( La. 11/ 4/ 20), 303 So. 3d 623.
DISCUSSION
Affirmative Defenses
We first address whether Lacox waived the right to assert affirmative defenses
in support of its motion for summary judgment by failing to adequately plead them in
its answers. S& P correctly points out that, under La. C. C. P. art. 1005, any matter
constituting an affirmative defense shall be set forth in a defendant's answer.
a] However, neither S& P nor any other party filed a copy of Lacox' s answers in support
of or in opposition to Lacox's motion for summary judgment. Under La. C. C. P. art.
966D( 2), we may consider only those documents filed in support of or in opposition
to the motion for summary judgment and shall consider any documents to which no
objection is made. Because Lacox's answers were not filed in accordance with La.
C. C. P. art. 966D( 2), we cannot determine if Lacox adequately pled affirmative
defenses and thus find this assignment of error meritless.
Burdens of Proof
To prevail in their negligence suit, the plaintiffs would bear the burden of
establishing Lacox was at fault in causing the fire, using a duty -risk analysis. This
analysis usually requires proof of five separate elements: ( 1) proof that the
defendant's substandard conduct was a cause -in -fact of the plaintiffs injuries ( the
cause -in -fact element); ( 2) proof that the defendant' s conduct failed to conform to
the appropriate standard ( the breach element); ( 3) proof that the defendant had a
duty to conform his conduct to a specific standard ( the duty element); ( 4) proof that
the defendant's substandard conduct was a legal cause of the plaintiffs injuries ( the
scope of liability or scope of protection element); and ( 5) proof of actual damages
the damages element). Bonin v. Ferre//gas, Inc., 03- 3024 ( La. 7/ 2/ 04), 877 So. 2d
89, 94; Jones v. Centerpoint Energy Entex, 11- 0002 ( La. App. 3 Cir. 5/ 25/ 11), 66
So. 3d 539, 545.
To prevail on the summary judgment here, Lacox' s burden does not require
that it negate all essential elements of the plaintiffs' negligence claim; rather, Lacox' s
burden is satisfied by pointing out, with proper supporting documents, an absence of
factual support for only one or more elements essential to the plaintiffs' claim - i.e.,
cause -in -fact, breach, duty, legal cause, damages. See La. C. C. P. art. 966D( 1); La.
C. C. P. art. 966, Comments — 2105, Comment ( j). The burden then shifts to S& P and
MUSIC, the non- moving parties, to produce factual support, through the use of
proper documentary evidence attached to their oppositions, which establishes the
existence of a genuine issue of material fact or that Lacox is not entitled to judgment
E as a matter of law. La. C. C. P. art. 966D( 1).
Duty of Liquefied Petroleum Gas Dealer2
Because it is the applicable substantive law that determines materiality,
whether a particular fact in dispute is material can be seen only in light of
the following substantive law applicable to this case. Jones v. Anderson, 16- 1361
La. App. 1 Cir. 6/ 29/ 17), 224 So. 3d 413, 417. The LPGC makes and enforces rules
and regulations governing the installation of liquefied petroleum gas tanks or
systems and the installation and use of liquefied petroleum gas appliances. See La.
R. S. 40: 1846A. The LPGC rules provide that a dealer shall not serve any liquefied
petroleum gas system that the dealer knows is improperly installed or in a dangerous
condition. La. R. S. 40: 1846B( 3); LAC 55: IX. 139A. All improper systems shall be
corrected before the dealer services such system with fuel for the first time. LAC
55: IX. 139A. However, a servicing dealer shall not be responsible for unauthorized
changes in or failures of an existing system or connected appliances that have been
tested, checked, and found in compliance with LPGC rules and regulations. LAC
55: IX: 139A. In an action for damages against a liquefied petroleum gas supplier, it
shall be an affirmative defense that the damage was caused by the alteration,
modification, or repair of liquefied petroleum gas equipment/ appliances, if the
alteration, modification, or repair was done without the supplier' s knowledge. See
La. R. S. 40: 1846H( 1).
Citing to case law, including Price v. Coypus Engineering Assoc., 515 So. 2d
589 ( La. App. 1 Cir. 1987), S& P and MUSIC claim the district court failed to consider
that Lacox had a ' heightened duty" as a propane gas dealer to protect its customers
and the public. However, neither S& P nor MUSIC can refute that the current
applicable law and regulations only impose liability on Lacox if it has know/edge of a
dangerous condition, or an unauthorized change in or failure of an existing propane
system or connected appliances, or of an alteration or modification of propane
2 The parties do not dispute that propane is a " liquefied petroleum gas" within the definition set forth in La. R. S. 40: 1842( 1) and that Lacox is a " liquefied petroleum gas dealer" and a " supplier" within the definitions set forth in La. R. S. 40: 1842( 2) and 40: 1846H( 1), respectively. 6 equipment. See La. R. S. 40: 1846B( 3) and 40: 1846H( 1); LAC 55. IX. 139A. There is
no question that liquefied petroleum gas is an inherently dangerous substance, and
must be handled with a care commensurate with its dangerous qualities; however,
those who handle such commodities are not insurers of any mishap. Liability
attaches only on due proof that the handler violated a duty owed to the person
harmed. See iCnockum v. Amoco Oil Co., 402 So. 2d 90, 97 ( La. App. 1 Cir. 1980).
Thus, as set forth in La. R. S. 40: 1846B( 3) and LAC 55: IX. 139A, a liquefied gas
handler is not responsible for the consequence of a defect in a plaintiff's gas system
of which he had no knowledge or control. See Price, 515 So. 2d at 598 ( finding gas
supplier correctly dismissed by directed verdict when there was no evidence that
supplier knew or should have known of customer's unsafe practices with gas after
delivery); Mitchell v. Cohen, 432 So. 2d 922, 924- 25 ( La. App. 4 Cir. 1983) ( noting
that a gas supplier is not liable for defects beyond the meter, if there is no proof that
he knew or was obliged to know of the defect). In sum, as applicable here, a
propane gas supplier must have knowledge of a dangerous condition or of
unauthorized changes in or failure of an existing system or connected appliances, or
of an alteration or modification of propane equipment, before it can be responsible
for damages caused by any such condition.
Summary Judgment Evidence
In support of its motion, Lacox claims it had no knowledge of and did not set
the Superking Seafood regulator pressure at 18 psi, did not know of anyone else who
set the pressure at 18 psi, was not aware at any time that the pressure was at 18
psi, and had received no complaints or requests from Superking regarding the
regulator pressure. Lacox's summary judgment evidence shows as follows.
Mr. Wild, the Lacox employee who installed the original 250 -gallon propane
tank, testified in his deposition that he set the regulator at 5 psi in January 2011 as
required by National Fire Protection Association regulations, 3 and an LPGC inspector
approved the installation. At Superking' s request, Mr. Wild returned in March 2011
3 Generally, the LPGC has adopted National Fire Protection Association regulations NFPA 54 2018 and NFPA 58 2017. See LAC 55: IX. 181A and C. 7 to switch the original tank to a 500 -gallon tank. Although Mr. Wild raised the
pressure to 10 psi to test for leaks, he testified that he then lowered the new tank's
pressure to 5 psi before leaving. Mr. Wild also testified that, on the two occasions he
was at Superking Seafood, he did not see any unsafe propane usage or any propane
equipment misuse or abuse. After March 2011, Mr. Wild did not return to Superking
Seafood.
Mr. Brister, the Lacox route salesman who regularly filled the propane tanks at
Superking Seafood for several years leading up to the April 2016 fire, testified in his
deposition that his duties included checking a percentage gauge on a customer's
tank to determine how much propane to add; but, his duties did not include checking
the regulator pressure gauge, which was located near the percentage gauge. He
added that he did not know the appropriate pressure setting for a propane tank
regulator. He also testified that he did not enter the Superking Seafood boiling room
when refilling the propane tanks; Superking never alerted him to any problem with
their propane system; and he did not see any unsafe practices or situations while
there.
Lacox corporate representatives, Pellon Maddox and Bryan Talley, also
testified by deposition. According to Messrs. Maddox and Talley, Lacox policy was to
comply with National Fire Protection Association standards, including the requirement
that a propane tank regulator such as that at Superking Seafood be set no higher
than 5 psi. They denied knowing how the subject regulator got to 18 psi and stated
that a Lacox employee would not have set the regulator at 18 psi. They confirmed
that Lacox route salesmen, such as Mr. Brister, were not required to check regulator
pressure gauges. They confirmed that Lacox did not recheck the regulator pressure
after the initial installations in 2011, and Lacox had no record of Superking
requesting a pressure test at any time after that. Messrs. Maddox and Talley
admitted that, upon initial installation of the propane tanks, Mr. Wild would have
checked Superking Seafood' s set up to make sure everything was in "[ g] ood working
order, the right valves, the right hoses, [ and] in a safe place[,]" but after that, Lacox
E: 3 would not have again checked Superking Seafood' s set up unless Lacox was notified
of a change.
By separate affidavit, Mr. Maddox testified that Lacox did not receive any
complaints and/ or requests for service from Superking during their entire business
relationship, nor was Lacox ever notified by the LPGC nor anyone else, of any rule
non- compliance relating to the gas system, tank, or tank regulator at Superking
In opposition to Lacox' s motion for summary judgment, S& P and MUSIC
claimed there are disputed factual issues as to who set the regulator at 18 psi; as to
Lacox' s constructive knowledge of Superking' s improper use of outdoor burners
inside its boiling room and improper placement of those burners too close to a
combustible wall; as to Lacox' s failure to lock the pressure regulator; and, as to Mr.
Brister's failure to discover the improper 18 psi regulator setting on his frequent
visits. S& P' s and MUSIC' s evidence in opposition shows as follows.
Mr. Wild admitted in his deposition that he raised the regulator' s pressure
above 5 psi when he installed the 500 -gallon tank in March 2011. When
hypothetically asked if Mr. Wild could have forgotten to lower the pressure to 5 psi,
one of the Lacox corporate deponents stated that it was " a possibility that anybody
could make a mistake." And, in deposition testimony, all relevant Superking
representatives, including Francis Nguyen, Tuan Nguyen, Trung Nguyen, and Dau Thi
Nguyen, denied changing the propane tank's regulator setting.
James Mazerat, S& P' s fire and origin expert, outlined several potential causes
of the fire in his affidavit, which S& P filed in support of its opposition. In his
attached report, Mr. Mazerat said the increased pressure from the propane tank
increased the BTU output from Superking Seafood' s burners and produced a greater
amount of heat on the boiling room' s exterior wall, all of which contributed to the
fire. Additionally, LPGC Inspector Terry McLain and Louisiana State Fire Marshal' s
Office Captain Henry Rayborn both testified by deposition that the increased pressure
could have" contributed to the fire.
oil In his deposition, Mr. McLain also stated that LPGC' s responsibilities include
inspecting natural gas installations, primarily commercial installations, to insure
compliance with LPGC regulations as set forth in LAC 55. IX. He qualified his
statement, however, by stating "[ t] he dealer is primarily responsible for making sure
everything is right." The excerpts of Mr. McLain' s deposition submitted in opposition
to Lacox' s motion for summary judgment give no further details regarding LPGC' s
duties, a propane dealer's duties, or about LPGC' s 2011 inspection and approval of
the Superking Seafood propane installation.
Based on our de novo review, we find Lacox has satisfied its burden by
pointing out a lack of factual support for the plaintiffs' negligence claim against it —
that is, through the testimony of its corporate representatives and technicians, Lacox
has shown that it was not responsible for nor did it know of any dangerous condition,
unauthorized change, or alteration or modification of any propane equipment at
Superking Seafood. See La. R. S. 40: 1846H( 1). We further find that, for reasons
below, S& P and MUSIC have failed to produce factual support sufficient to establish
that S& P can prove Lacox's negligence, and the district court correctly granted
summary judgment to Lacox. See La. C. C. P. 966D( 1) and 967B. We find, as did the
district court in its reasons for judgment, that the arguments in opposition to Lacox's
motion for summary judgment are purely speculative. Although factual inferences
reasonably drawn from the evidence must be construed in favor of the party
opposing the motion, mere conclusory allegations, improbable inferences, and
unsupported speculation will not support a finding of a genuine issue of material
fact. Salvador v. Main St. Family Pharmacy, L. L. C., 17- 1757 ( La. App. 1 Cir. 6/ 4/ 18),
251 So. 3d 1107, 1112.
First, regarding the improper regulator setting, Mr. Wild' s uncontroverted
testimony establishes that, when he installed the 500 -gallon tank in 2011, he
increased the pressure to 10 psi to test for leaks, but then lowered the pressure to
the proper setting of 5 psi. There is no evidence that any Lacox employee changed
the regulator pressure at any time between March 2011 and the April 2016 fire, over
10 five years later. And the fact that a Lacox corporate representative admitted to '' a
possibility that anybody could make a mistake" does not reasonably infer that Mr.
Wild set the pressure at 18 psi, not at 10 psi, and then forgot to lower the pressure
from 18 psi to 5 psi. Further, even if no Superking representative changed the
regulator setting between 2011 and 2016, this is insufficient and merely speculative
evidence that Mr. Wild improperly set it in 2011.
Next, there is no evidence that any Lacox employee knew of, or had
constructive knowledge of, Superking' s alleged improper use of outdoor burners
inside its boiling room or that those burners were too close to a combustible wall.
Under La. R. S. 40: 1846B( 3) and LAC 55: IX. 139A, Lacox could not have serviced
Superking Seafood with propane for the first time, if it knew Superking Seafood' s
system was improperly installed or in a dangerous condition. The summary
judgment evidence shows that Lacox complied with this duty. Lacox corporate
representatives testified that, upon an initial installation, Lacox policy was for its
installers to check the customer's set up. Mr. Wild testified that he did check
Superking Seafood' s entire set up in 2011 and, on the two occasions he was there,
he remembered nothing that he would have considered a potential safety hazard.
There is no evidence to refute Mr. Wild' s statement, and he did not return to
Superking Seafood after March 2011. Further, Mr. Brister, the route salesman,
testified that he did not enter the boiling room when he went to refill the propane
tank at Superking Seafood; thus, the fact that he frequently refilled the exterior
tanks over several years is not evidence that he knew Superking Seafood' s boiling
room set up was unsafe. See Price, 515 So. 2d at 598; Mitchell, 432 So. 2d at 924- 25.
Next, there is no evidence that Mr. Brister had a duty to discover that the
pressure regulator was improperly set, albeit his frequent trips to Superking Seafood
and the undisputed proximity of the percentage gauge to the pressure gauge. S& P
and MUSIC have pointed to no source imposing such a duty; Lacox had no policy
requiring such; and, Mr. Brister testified that he did not even know the appropriate
setting for a regulator pressure gauge. Further, as pointed out by the district court,
11 there is no evidence of when the regulator's pressure was changed to 18 psi, what
the regulator setting was when Mr. Brister made his last refill before the fire, and/ or
if the regulator setting could have been changed atterthe last refill, such that Lacox
could not have prevented the fire, even with a delivery driver trained to check
pressure regulators. Thus, even if Mr. Brister would have had a duty, there is no
evidence he breached that duty; there is only unsupported speculation and no actual
evidence that his actions, or lack thereof, were a cause of the fire at Lee' s Drive Inn.
See Salvador, 251 So. 3d at 1112 ( noting that, absent evidence establishing a duty or
a breach thereof, an expert's testimony that infers negligence is insufficient to create
a genuine issue of material fact); Knockum, 402 So. 2d at 97- 98 ( finding that,
notwithstanding a propane gas supplier's duties under the LPGC' s rules, plaintiffs
failed to prove the supplier's actions were a cause -in -fact of the fire which led to the
their injuries.)
Lastly, we find insufficient evidence to support the argument that Lacox had a
duty to lock the regulator to prevent unauthorized changes to the psi setting.
CONCLUSION
After a de novo review of the summary judgment evidence, we conclude
Lacox has pointed to an absence of support for S& P' s claims that Lacox's negligence
was a cause of S& P' s fire -related damages. And, S& P and MUSIC have failed to
produce factual support sufficient to establish that Lacox had a duty created by
knowledge of a dangerous condition, or of an unauthorized change in or failure of an
existing system or connected appliances, or of an alteration or modification of
propane equipment, such that it should be responsible for damages caused by any
such condition. Thus, the district court correctly granted summary judgment to
Lacox and correctly dismissed all claims against Lacox in these consolidated suits.
Costs of the appeal are assessed one- half to S& P Investments, LLC, On Track
Investments, Inc., and Amori Dila Famiglia, LLC and one- half to Mesa Underwriters
Specialty Insurance Company.
AFFIRMED.