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Long v. State6/29/2005
ter to the court of appeal for a de novo review of the record. Gonzales v. Xerox, 320 So.2d 163 (1975). However, based on our review of the record and our decision here to overrule Rick and Archon, we find the case distinguishable from Gonzales. Without a new trial, plaintiffs would be penalized for relying on jurisprudence this Court has only now overruled.
DECREE
JUDGMENT REVERSED, CASE REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
JOHNSON, Justice dissenting
First, I dissent from the majority's conclusion that the correspondence between the Mayor of the Village of Bonita and Mr. Pistorius of the Department of Transportation and Development ("DOTD") are inadmissible under 23 U.S.C. § 409. As a threshold requirement, the information protected by § 409 must be in the form of "reports, surveys, schedules, lists or data," and such information must have been compiled or collected." Powers v. CSX Transportation, Inc., 177 F.Supp.2d 1276, 1278 (S.D. Ala. 2001).
In this case, in his letter to Mayor Lytle, Mr. Pistorius stated that the DOTD intended to provide signals for the Harp Street crossing "from funds available through a federal safety program." Mr. Pistorius went on to express that the Village of Bonita was required to maintain the pavement striping and the railroad crossing signs " n order to comply with Federal Highway Administration requirements." The mayor's response to Mr. Pistorius merely reflected the Village of Bonita's consent to maintain the crossing. Neither letter contained or referenced any "reports, survey, lists, or data compiled or collected for" § 130 purposes. Thus, using the plain language of § 409, it is axiomatic that the letters are not, nor do they contain, "reports, surveys, schedules, lists."
Few courts have considered whether letters, alone, are prohibited under § 409. In Powers, supra, the administrator of the estate of a driver killed in a railroad crossing accident filed a wrongful death action against the railroad in state court. The case was later removed to federal court. The defendants disclosed a letter from the Alabama Department of Transportation's office engineer to CSX Transportation's director of construction/public projects, pertaining to planned signalization of the railroad crossing at issue. In the letter, the engineer stated that the letter was CSX's "authority to proceed with the work and to bill the State for actual cost as provided for in the agreement." The court concluded that the letter "neither is nor contains any 'reports, surveys, schedules lists.'" The court went on to state:
While the letter may constitute "data" in the sense that it includes information (the fact and date of authorization to proceed), it is not data "compiled or collected" but is data created by [Alabama Department of Transportation] itself. Thus, the letter falls outside the protection of Section 409.
Powers at 1278. The court further noted that while certain attachments to the letter may have fallen within the categories set forth in § 409, the letter itself did not. Additionally, the court observed:
It is far from clear that Congress used the term "data" in such a generic, universal sense. "It is intended that raw data collected prior to being made part of any formal or bound report" shall not be discoverable, admissible in evidence or used for other purposes in litigation." H.R.Rep. No. 104-246, at 59 (1995), reprinted in 1995 US.C.C.A.N. 522, 551.
Powers at 1278, fn. 3.
The words of a law must be given their generally prevailing meaning. LSA-C.C. art. 11. Webster's Dictionary defines "data" as follows:
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