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Bujol v. Entergy Services8/14/2002
nd therefore was not involved in the actual storage, handling,, or transportation of the butadiene. Under La. C.C. art. 2315.3 and the interpretive jurisprudence, GATC cannot be liable for exemplary damages and the trial court erred in denying General American's motion for summary judgment on the exemplary damages issue. The trial court judgment is reversed; General American's motion for summary judgment on the issue of exemplary damages is hereby granted. (Emphasis added.)
Phillips Petroleum Co. (Phillips) had owned the tank car and sold it to GATC. The Train Car Litigation court, at 95-2710, p. 9, 671 So.2d at 547, discussed the liability of Phillips under Article 2315.3 as follows:
The jurisprudence interpreting La. C.C. art. 2315.3 requires a finding that the defendant have some possession or control over the hazardous substance prior to the victim's injuries. Because Phillips never had possession or control over the butadiene in the instant case, Phillips was not involved in the "storage handling, or transportation" of the hazardous substance and cannot be held liable for exemplary damages under C.C. art. 2315.3. It is true that all of the maintenance procedures performed on the tank car involved the casket which the plaintiffs allege was defective; however, that fact does not bring Phillips under the ambit of La., C.C. art. 2315.3. Accordingly, the trial court erred in denying Phillips' motion for summary judgment on the exemplary damages issue. The trial court judgment is reversed, and the motion for summary judgment on the issue of exemplary damages in favor of Phillips is granted. (Emphasis added.) See also Strauch v. Gates Rubber Co., 879 F.2d 1282 (5t' Cir. 1989), cert. denied, 493 U.S. 1045, 110 S.Ct. 841, 107 L.Ed.2d 836 (1990); Galjour v. General American Tank Car Corp., 769 F.Supp. 953 (E.D. La. 1991).
Primary Jurisprudence Cited by the Majority
The majority cites the following quotation from Train Car Litigation, 960017 at 11, 671 So.2d at 549, as authority for their holding:
Nothing in the express language of [Article 2315.3] requires a finding that a person or entity be physically involved with the hazardous substance at the time the incident occurs as a prerequisite to liability.
This quotation is taken out of context. The entirety of the discussion of this issue in Train Car Litigation supports the position taken in this dissent; it does not support the position taken by the majority or the proposition for which it is cited.
As previously indicated in this dissent, in Train Car Litigation, GATC was the owner of the tank car that contained the butadiene; this tank car leaked and caught fire. GATC leased the tank car to Mitsui. La. C.C. art. 2668 et seq. Mitsui allowed Polysar to use the tank car to transport Polysar's butadiene as a "business favor". The trial court denied Mitsui's motion for summary judgment on the exemplary damages claim under La. C.C. art. 2315.3. The court of appeal affirmed with the following rationale at 96-0017 at 9-10, 671 So.2d at 547-548:
Mitsui claims that it had nothing to do with the loading or transportation of the butadiene. However, Polysar claims it contracted with and relied upon Mitsui to perform all the steps necessary to transfer the cargo from the ship at Goodhope to its plant in Chattanooga. The bill of lading named Mitsui as shipper.
Mitsui denies Polysar's allegations that it was responsible for the shipment of the butadiene, and claims that it simply assisted Polysar in obtaining transportation for the shipment of butadiene. The chemical was directly offloaded from the ship to the tank car by employees of GATX Terminals,, who had previou
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