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Louisiana Department of Transportation & Development v. Kansas City Southern8/8/2002
ial court observed that the collateral source rule is limited to tort cases and therefore, is inapplicable to the instant situation. Further, the trial court found the relationship between DOTD and FHWA to be contractual, "nothing more, nothing less."
Although the trial judge, as a federal and a state taxpayer, had sympathy with the goal of DOTD to recover the remediation costs from the defendants, the trial court found no legal basis which supported DOTD's claim. The trial court concluded that DOTD could not recover remediation costs previously reimbursed to DOTD by FHWA. Therefore, the partial summary judgment was granted.
Judgment on Crystal's Fifth Motion for Partial Summary Judgment
In addition to addressing other motions, the judgment signed August 20, 2001, granted Crystal's Fifth MPSJ in which KCS joined. Specifically, the judgment stated that "the Louisiana Department of Transportation and Development may not recover from defendants any sums for which it has received reimbursement from the federal government." Notice of the judgment was sent on August 24, 2001.
DOTD's Motion for New Trial
DOTD filed a Motion for New Trial on this partial summary judgment. In response to the trial court's conclusion that DOTD's recovery of remediation costs would be an impermissible double recovery, DOTD urged that the federal share of the remediation costs would belong to the federal government, not DOTD. The uncontradicted evidence established that, upon recovery, the federal share would belong to the federal government, according to DOTD. DOTD posited that the uncontradicted evidence established that DOTD was acting on behalf of FHWA and that the trial court did not rule on this issue. Finally, DOTD stated that, at a minimum, there were genuine issues of material fact as to the ownership of the money which precluded the grant of the partial summary judgment.
In addition to relying upon the Oglesby deposition and the Baccus memorandum discussed previously, DOTD attached to its memorandum in support of the new trial motion an affidavit by William A. Sussman, the FHWA Louisiana Division Administrator. Sussman averred that
• The FHWA looked to each state highway department to make a good faith effort to recover costs of construction that are subject to recovery, such as costs of collusive bidding and environmental remediation.
• The federal percentage of recovered funds are reimbursed to FHWA which deposited the money in the Highway Trust Fund.
• If DOTD only recovered the state's 10% contribution to the clean-up, DOTD will still have to give 90% of the 10% recovered to FHWA.
• The recovered funds would be electronically transferred and the funds will be physically returned to FHWA.
• The recovered federal share would be credited to the Louisiana Interstate Construction account within FHWA.
• FHWA has not given the federal share of any recovery to DOTD and use of the recovered share of federal clean-up costs can be made in Louisiana provided all requirements are met.
• Reference to retention of the funds by DOTD meant that the funds could be used as federal participation on future projects in Louisiana if the FHWA criteria are met.
• Since 1988, FHWA's written policy requires state highway departments to attempt to recover federal funds used for remediation.
• Since 1988, FHWA has instructed and authorized state highway agencies to recover the federal share of remediation.
• DOTD is acting on FHWA's behalf in seeking to recover the federal share of the remediation.
• If DOTD recovers the fe
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