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Louisiana Department of Transportation & Development v. Kansas City Southern8/8/2002
t to get things from FHWA. As early as 1991, an internal FHWA memo raised the very issue that is presented in this litigation and suggested a possible remedy would be to have the project agreement include a provision requiring the states to use their best efforts to recover clean-up costs from responsible parties as a condition of federal funding. However, to sue on behalf of another requires special authority in Louisiana. La. C.C.P. art. 694. DOTD's authority to sue to recover the 90% of remediation costs paid to DOTD by FHWA was made an issue early on. Yet, DOTD supplied no evidence containing any special authorization from FHWA enabling DOTD to sue on its behalf to recover the federally paid clean-up costs. The logical place for FHWA to have given such an authorization was in the project agreement itself. Failing that, DOTD should have obtained FHWA's special authorization when they entered into the service contract.
This record shows that during all phases of the highway construction, DOTD paid 100% of the costs and was then reimbursed by the FHWA for 90% of the costs paid by the state. Unfortunately and regrettably, during the long course of this litigation, DOTD did not obtain and did not place in this record, sufficient evidence to show that FHWA specifically authorized DOTD to bring this suit on behalf of FHWA to recover the federal portion of the remediation costs.
Under any of its continually evolving and alternative arguments, DOTD is not entitled to recover the remediation costs paid by FHWA to DOTD. If the money paid by FHWA belonged to FHWA, then DOTD cannot recover because the state has failed to show that FHWA authorized DOTD to bring suit on its behalf. DOTD had ample notice of defendants' claims that DOTD had no standing and no authority to bring suit on behalf of FHWA and provided no evidence establishing its specific authority.
If the money paid by FHWA to DOTD for the federal portion of the remediation costs under the contractual arrangement between the federal and state governments belonged to DOTD, then DOTD cannot recover from the defendants because such a recovery would constitute a double recovery of funds for which it had previously been reimbursed by FHWA.
DOTD's assertions that defendants must make DOTD whole by replacing the federal clean-up funds which could have been used on other projects were unsupported and speculative. The record showed that multiple changes over many years in costs of an interstate highway construction project were the normal, expected occurrence and the cost of a project was often unknown until long after the project was complete.
Our de novo review of this entire record including the documents supplied by DOTD in connection with its Motion for New Trial revealed that the trial court properly granted defendants' Motion for Partial Summary Judgment.
DECREE
For the foregoing reasons, the Partial Summary Judgment in favor of defendants is AFFIRMED. To the extent permissible under law, costs of these proceedings are to be paid by DOTD. The appellate costs are $191.50. The matter is remanded to the trial court for further proceedings, including the calculation of costs, if any, as required by La. R.S. 13:5112.
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