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.”
The Court also held that the continued presence of contamination on the plaintiffs’ property did not constitute a continuing tort when the operating cause of the damage, the continued use of a leaking UST, had been abated and was removed, citing with approval, among other cases, Mouton v. State of Louisiana, 525 So.2d 1136 (La. App. 1 Cir. 1988), writ denied, 526 So.2d 1112 (La. 1988) and Lejeune Brothers, Inc. v. Goodrich Petroleum, L.L.C., 981 So.2d 23 (La. App. 3d Cir. 2007), writ denied, 978 So.2d 327 (La. 2008). The Court noted that a continuing tort requires continuous conduct and continuous damage. Once that tortious conduct ceases, there is no continuing tort. The Court reasoned that the presence of the contamination is the harm caused by the original tortious act. Continuing damage alone does not constitute a continuing tort for purposes of tolling prescription when the tortious conduct has ceased.
Relying on its previous decision in Crump v. Sabine River Authority, 98-2326 (La. 6/29/99), 737 So.2d 720, the Court also held that the duty to remediate property contamination does not constitute a continuing wrong that suspends prescription. The Court noted that the initial wrong that caused the plaintiffs’ damages was the leaking underground storage tank system, not the failure to remediate the contamination.
It is worth noting that the plaintiffs were not seeking damages for remediation. Instead, the plaintiffs were seeking damages for diminution in the value of the property. The property is being remediated under LDEQ’s UST program.