By Leonard L. Kilgore, III and Richard D. McConnell
In Hogg v. Chevron U.S.A. Inc., Docket No. 09-CC-2635 (see opinion here), a case handled by Kean Miller attorneys, Leonard L. Kilgore, III and Richard D. McConnell, Jr., the Louisiana Supreme Court reversed the trial court’s denial of a motion for summary judgment based on a prescription (statute of limitations) defense. In a 5-2 decision, the Louisiana Supreme Court clarified several issues pertinent to prescription in tort cases, in particular to cases involving allegations of environmental contamination of immovable (real) property. The Court addressed the following issues:
1. What constitutes “actual” and/or “constructive” knowledge of plaintiffs sufficient to commence the running of the applicable prescriptive period for torts under La. Civil Code articles 3492 and 3493;
2. What constitutes a continuing tort; and
3. Does the alleged failure to remediate environmental damage constitutes a distinct, continuing tort?
The Court held that letters from the Louisiana Department of Environmental Quality (LDEQ) received by the landowners several years prior to filing suit, advising the landowners of the potential for underground migration of gasoline constituents from a former, leaking underground storage tank (UST) located on nearby property, were sufficient to provide the landowners with knowledge of the potential claim within the meaning of La. Civil Code Article 3493. Article 3493 provides:
“When damage is caused to immoveable property, the one year prescription commences to run from the day the owner of the immoveable acquired, or should have acquired, knowledge of the damages.”