Wilson v. Department of Transportation & Development for the State

737 So. 2d 866, 98 La.App. 4 Cir. 1142, 1999 La. App. LEXIS 1161
CourtLouisiana Court of Appeal
DecidedApril 14, 1999
DocketNos. 98-CA-1142 to 98-CA-1156
StatusPublished
Cited by2 cases

This text of 737 So. 2d 866 (Wilson v. Department of Transportation & Development for the State) 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
Wilson v. Department of Transportation & Development for the State, 737 So. 2d 866, 98 La.App. 4 Cir. 1142, 1999 La. App. LEXIS 1161 (La. Ct. App. 1999).

Opinion

| ¶ JONES, Judge.

Plaintiffs/Appellants filed this class action lawsuit alleging that their property was damaged as a result of pile driving and movement of heavy trucks through their neighborhood by the defendants/ap-pellees. Plaintiffs appeal the judgment of the trial court dismissing their causes of action. For the reasons stated herein, we affirm.

FACTS

The Louisiana Department of Transportation and Development (DOTD) entered into contracts with Boh Brothers Construction Company, Inc. (Boh Bros.), to construct access and exit ramps to the Greater New Orleans Bridge #2 (GNO). Boh Bros, subcontracted the pile driving work to Raymond International Builders, Inc. (Raymond), which was insured by Liberty Mutual Insurance Company (Liberty). Construction on the GNO bridge began on September 8, 1980 and continued until July of 1988.

Soon after the construction began, several plaintiffs, who lived in the vicinity of the GNO bridge, began to notice damage to their homes. In particular, Woodrow Wilson, the lead plaintiff in this class action, was a member of a neighborhood group called Residents on Bodenger Boulevard (ROBB). ROBB wrote a letter to Senator Fritz Windhorst on April 13, 1985, and mentioned that the Wilson residence was one of the several homes that had allegedly been damaged as a result of the construction of the GNO bridge. On June 19, 1985, ROBB sent a letter to Boh Bros. Construction Company, listing the Wilson residence as one of the homes that allegedly sustained damage from the GNO bridge construction. However, several of the other plaintiffs could not give a specific date on which Lthey first noticed damage to their homes. Nevertheless, each plaintiff testified that the damage to their homes was first noticed after the construction to the GNO bridge had begun, or while the pile driving activity was still in progress.

[869]*869After receiving the letter from ROBB, Sandra Duckworth, an employee of Boh Bros., allegedly wrote a letter to plaintiffs, Edward and Gertie Edwards, stating that the claims made by each plaintiff would be considered when the contract to construct the GNO bridge was completed. However, Boh Bros, did not offer to pay for any damage caused to the plaintiffs’ homes as a result of the GNO bridge construction. Instead, the plaintiffs only filled out claim forms and submitted them to the defendants’ representatives, who verbally assured the plaintiffs that their claims would be considered when the contract was completed.

After the construction was completed, the defendants refused to consider the plaintiffs’ claims. On September 1, 1988, thirteen plaintiffs filed suit for property damages to their homes sustained as a result of construction work on the GNO bridge, pursuant to La. R.S. 9:5624 (post-amendment). Two other plaintiffs filed suit on February 17, 1994. The fifteen suits were consolidated for trial. According to the petitions filed, the damages to the plaintiffs’ homes began on or about September 8, 1980 and continued until June or July of 1988. The petitions further alleged that a combination of pile driving and the movement of heavy trucks carrying equipment through their neighborhoods by the defendants caused the damages to the plaintiffs’ homes. The petitions also included claims of negligence, past, present, and future property damages, mental anxiety, anguish, inconvenience, and loss of use and enjoyment of their properties and homes.

The plaintiffs sued the State of Louisiana, through the Department of Transportation and Development, Boh Brothers Construction Company, and|3Raymond International and its insurer, Liberty Mutual Insurance Company. However, shortly before trial, plaintiffs voluntarily dismissed their claims against Boh Bros., Raymond International, and Liberty Mutual without prejudice. Thereafter, third party demands were brought by the State, through DOTD, against its agents, Boh Bros., Raymond, and Liberty Mutual. Immediately prior to trial, the State and its agents filed exceptions of prescription/peremption in fourteen of the suits, asserting that the personal injury and property claims were prescribed or perempted by the two-year statute of limitations set out in La. R.S. 9:5624. In their exceptions, the State and the third party defendants asserted that under La. R.S. 9:5624, time began to run when the damages were first sustained while the project was ongoing.

In response to the exceptions, plaintiffs argued that the two-year prescription period had begun to run following the first occurrence of property damage after completion of the work, regardless of whether La. R.S. 9:5624 was deemed prescriptive or peremptive. The plaintiffs also argued that because all of the plaintiffs’ suits, except two filed in 1994, were filed in September 1988, after the construction ended in December 1986 or July 1988, that peremption had not run and the suits were timely asserted.

The plaintiffs also argue that their claims for personal injury had not prescribed because they were classified as continuing torts subject to the one-year presciptive period of Lousiana Civil Code art. 3492. Plaintiffs argued that the State and its agents assured them that their claims would be considered after the work on the bridge was completed. Thus, under the Due Process provision of Article I § 2 of the State Constitution of 1974 and the doctrine of contra non \ ¿valentem1, prescription was suspended until December 1986, the earliest date when any of the work in question was completed.

[870]*870On August 21,1997, the trial court found that La. R.S. 9:5624, prior to the 1987 amendments, was controlling. La. R.S. 9:5624, in its pre-amendment form, provided:

“When private property is damaged for public purposes, any and all actions for such damages are prescribed by prescription of two years, which shall begin to run when the damages are sustained.” (Emphasis added.)

The trial court also held that under La. R.S. 9:5624, all of the plaintiffs’ causes of action, property damage claims, and personal injury claims, were prescribed by the two-year prescriptive period running from the date the damages first occurred. The trial court held that the prescriptive period (two years) ran during the construction of the GNO bridge. However, the court decided to hold an evidentiary hearing based on the plaintiffs’ assertions that prescription was suspended until after construction was completed.

After the evidentiary hearing on the defendants’ exceptions regarding the late filing of the plaintiffs’ suits, the trial court received additional testimony and evidence on the plaintiffs’ claims of contra non va-lentem and the denial of Due Process by the State. Fifteen witnesses testified concerning the damages that they sustained from the construction project, and all indicated that the damages were sustained in either 1984 or 1985. The testimony also concerned meetings held with the defendant’s representatives, wherein the defendants told the plaintiffs that their claims would be investigated. The court found that the evidence proved that the plaintiffs did complain to State officials about their damages when the work |swas ongoing, were told to fill out claim forms by the defendants, and were verbally assured by State officials that their claim would be considered when construction was completed.

On October 10, 1997, at the conclusion of the evidentiary hearing, the court rendered judgment holding that La. R.S. 9:5624 was peremptive.

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737 So. 2d 866, 98 La.App. 4 Cir. 1142, 1999 La. App. LEXIS 1161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-department-of-transportation-development-for-the-state-lactapp-1999.