State Of Louisiana, Et Al. v. Louisiana Land &

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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #026
FR
OM: CLERK OF SUPREME COURT OF LOUISIANA
The
Opinions handed down on the 1st day of June, 2022 are as follows:
PER CURIAM:
2020-C-00685 STATE OF LOUISIANA, ET AL. VS. LOUISIANA LAND &
EXPLORATION CO., ET AL. (Parish of Vermilion)
AFFIRMED. SEE PER CURIAM.
Retired Judge Michael Kirby appointed Justice ad hoc sitting for Genovese , J., recused in
case number 2020-C-00685 only.
Weimer, C.J., dissents in part, concurs in part and assigns reasons.
Hughes, J., dissents in part and concurs in part and assigns reasons.
Crichton, J., additionally concurs in part and dissents in part and assigns reasons.
Crain, J., dissents in part and assigns reasons.
McCallum, J., additionally concurs and assigns reasons.
Griffin, J., concurs in part, dissents in part and assigns reasons.
Kirby, J., dissents in part for the reasons assigned by Crain, J.

SUPREME COURT OF LOUISIANA

No. 2020-C-00685

STATE OF LOUISIANA, ET AL.

VS.

LOUISIANA LAND & EXPLORATION CO., ET AL.

On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Vermilion

On Rehearing

PER CURIAM*

We granted rehearing to reconsider our prior decision in State v. Louisiana
Land and Exploration Co., 20-00685 (La. 6/30/21), _So.3d_. The case presents two
main issues, the proper interpretation of Act 312 relative to the award of damages
for the evaluat ion or remediation of environmental damage and whether the strict
liability tort claim prescribed. See La. R.S. 30:29.1 With the benefit of additional
oral argument and briefing, we affirm our original decree.
FACTS AND PROCEDURAL HISTORY
Vermilion Parish School Board (“VPSB”) filed suit in 2004, alleging oil and
gas operations conducted pursuant to a 1935 mineral lease and a 1994 surface lease
damaged Section 16 land. 2 VPSB asserted causes of action for negligence, strict
liability, unjust enrichment, trespass, breach of contract, and violations of Louisiana
environmental laws.

* Retired Judge Michael Kirby appointed Justice ad hoc, sitting for Genovese, J., recused in this
case.

1 We are tasked only with interpreting the 2006 version of Act 312 and do not opine regarding the
2014 amendments to that Act.

2 “Section 16 land” refers to land set aside by Congress for the exclusive use of public education
in the Land Ordinance of 1785. See 1 Laws of the U.S. 565. These properties are governed by an
extensive statutory scheme in Louisiana. See La. R.S. 41:631 -981. Here, the Sectio n 16 land is
owned by the State of Louisiana but administered and used by VPSB for purposes of education.

2

Union Oil Company of California and Union Exploration Partners
(“UNOCAL”) admitted responsibility for environmental damage to the land. La.
R.S. 30:29(C)(1)(2006). Act 312 sets forth an administrative procedure where, upon
an admission of responsibility, the trial court orders the development of a plan to
evaluate and remediate the environmental damage. The plan ultimately adopted by
the court in accordance with this administrative process is the “feasible plan.” La.
R.S. 30:29(I)(3)(2006).
UNOCAL filed an exception of prescription alleging VPSB knew of its strict
liability tort claim more than one year before filing suit, as evidenced by it consulting
an attorney regarding the damaged land. VPSB argued hiring counsel did not
commence prescription and, further, the claim is imprescriptible because the suit is
on behalf of the State of Louisiana, which has immunity to prescription pursuant to
Louisiana Constitution Article XII, Section 13. The trial court denied the exception
of prescription, eventually stating:
This lawsuit is a civil action for property damages based on tort,
property law, and mineral law. The damaged property is a 16th Section
of Vermilion Parish. Section 16 lands are owned by the State but
managed by various school boards for th e benefit of public education.
When a claim for property damage is brought by a school board in the
name of the State, the claim cannot be prescribed. La. Constitution Art.
12 § 13 provides, “Prescription shall not run against the state in any
civil matter, unless otherwise provided in this constitution or expressly
by law.”

A jury trial was held in April and May of 2015. The jury awarded $3,500,000
for remediation damages pursuant to Act 312. Additionally, after the trial court
found the strict liability claim did not prescribe, the jury awarded $1,500,000 for that
claim. According to the judgment, the strict liability award was for “damage to the
property” and “to restore the property.” The jury found no liability for breach of
contract, negligence, or trespass.3

3 In August 2015, pursuant to Act 312, the trial court referred the case to the Louisiana Department
of Natural Resources to determine the feasible p lan to remediate environmental damage to the

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VPSB and UNOCAL appealed. The court of appeal affirmed the prescription
ruling, finding the strict liability claim imprescriptible because VPSB “functions as
the State in the State’s capacity of trustee for the benefit of public education.” The
court of appeal also found the verdict inconsistent, primarily reasoning that the jury’s
finding of environmental damage necessarily meant UNOCAL breached its lease
obligations, which conflicted with the jury’s finding of no breach of contract. The
trial court judgment was vacated and the case was remanded for a new trial. State
v. Louisiana Land and Exploration Co., 19-0248 (La. App. 3 Cir. 5/6/20), 298 So.3d
296.
We granted writs in State v. Louisiana Land and Exploration Co. , 20-00685
(La. 6/30/21), _So.3d_ (“Louisiana Land II) and affirmed the court of appeal’s
ruling on prescription, but found the claim not factually prescribed, making it
unnecessary to decide if it was imprescriptible. Additionally, we found error in the
jury deciding Act 312 issues that, following the admission of responsibility, should
have been reserved solely for the trial court. That error resulted in improper jury
instructions and interrogatories that tainted the entire jury verdict. We affirmed the
court of appeal vacating the trial court’s judgment and remanding for a new trial, but
with additional guidance on the application of Act 312. Both VPSB and UNOCAL
requested rehearing, which we granted. State v. Louisiana Land and Exploration
Co., 20-00685 (La. 10/19/21), 326 So.3d 257.
DISCUSSION
Act 312
After considering the arguments raised on rehearing, we affirm our holding in
Louisiana Land II that the plain language of Act 312 only allows recovery of excess
remediation damages when expressly provided by contract.

land. The trial court later adopted the feasible plan recommended by LDNR . That plan was
affirmed in a separate appeal and is currently being implemented.

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Since the enactment of Act 312, a struggle has ensued to determine the amount
of remediation damages that must be deposited into the registry of the court and used
solely to evaluate or remediate environmental damage, as opposed to being awarded
to the landowner without the obligation to clean up the environmental damage. Until
Act 312, unless the landowner only sought specific performance, there was no legal
compulsion to use money awarded to remediate environmental damage to actually
clean up the property. See Corbello v. Iowa Production, 02-0826 (La. 2/25/03), 850
So.2d 686.
Act 312 changed the process for recovering remediation damages by requiring
that all damages awarded for the evaluation or remediation of environmental damage
shall be paid into the registry of the court and used for cleanup. La. R.S. 30:29(D).4
Act 312 broadly defines the scope of those damages. “Environmental damage” is
defined as “any actual or potential impact, damage, or injury to environmental media
caused by contamination resulting from activities associated with oilfield sites or
exploration and production sites. Environmental media shall include but not be
limited to soil, surface water, ground water, or sediment. ” La. R.S. 30:29(I)(1).
“Evaluation or remediation shall include but not be limited to investigation, testing,
monitoring, containment, prevention, or abatement.” La. R.S. 30:29(I)(2).
According to the statutory scheme, any amount awarded for evaluation or
remediation of environmental damage, but not needed for cleanup, is returned to the
responsible party, not to the landowner. La. R.S. 30:29(D)(4). The question
presented in this case is whether, in the absence of an express contractual provision,
Act 312 allows a landowner to recover an award for remediation damages that
exceeds the cost for the feasible plan. We again find it does not.

4 This all-inclusive mandate is subject to one exception for an “express contractual provision ”
discussed hereinafter.

5

Resolution of the question before us turns on the language of the statute. The
2006 version of Act 312 provides in pertinent part:
Subsection (D)(1): Whether or not the department or the attorney
general intervenes, and except as provided in Subsection H of this
Section, all damages or payments in any civil action, including interest
thereon, awarded for the evaluation or remediation of environmental
damage shall be paid exclusively in to the registry of the court in an
interest-bearing account with the interest accrui ng to the account for
cleanup.

***

Subsection(H): This Section shall not preclude an owner of land from
pursuing a judicial remedy or receiving a judicial award for private
claims suffered as a result of environmental damage , except as
otherwise provided in this S ection. Nor shall it preclude a judgment
ordering damages for or implementation of additional remediation in
excess of the requirements of the plan adopted by the court pursuant to
this Section as may be required in accordance with the terms of an
express contractual provision. Any award granted in connection with
the judgment for additional remediation is not required to be paid into
the registry of the court. This Section shall not be interpreted to create
any cause of action or to impose additional implied oblig ations under
the mineral code or arising out of a mineral lease.

Subsection (D) states “ except as provided in Subsection (H) of this Section ,
all damages or payments in any civil action . . . awarded for the evaluation or
remediation of environmental damage shall be paid exclusively into the registry of
the court . . . for cleanup.” (emphasis added). Therefore, the starting point for
recovery for “evaluation or remediation of environmental damage” is that “all” such
damages must be deposited into the regist ry of the court. Significantly, this
requirement is limited to one element of damages, “evaluation or remediation of
environmental damage,” which , as specifically defined terms in Act 312, are
essentially oil field cleanup costs.
Subsection (H) recognizes the statute does not preclude “a judicial award for
private claims suffered as a result of environmental damage, except as otherwise
provided in this Section.” The legislature did not define “private claims suffered as
a result of environmental damage.” Consequently, we have no statutory listing of

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these “private claims.” However, b ecause of the definition of “environmental
damage,” we know that the term “private claims” broadly relates to “any actual or
potential impact, damage, or injury to environmental media. . . .” The statute also
clearly and unambiguously says what “private claims” are not. Subsection (H) says
they are not “as otherwise provided in this Section.” This statutory directive
reincorporates subsection (D)(1), which says thes e private claims are not for the
“evaluation or remediation of environmental damage.”5 Subsection (D)(1) mandates
that evaluation or remediation damages be recovered through the feasible plan,
regardless of the cause of action sued upon or the legal theory of recovery. The
application of subsection (D)(1) is triggered by the nature of the damage, that is,
whether it is evaluation or remediation of environmental damage as defined in Act
312, not the legal theory that determines the defendant’s liability. Summarizing, all
private claims for environmental damage to environmental media are reserved to the
landowner, except damages for evaluation or remediation of environmental damage,
which is the feasible plan and must be deposited into the registry of the court.
VPSB contends the feasible plan is only a minimal state standard that protects
the public interest, leaving some excess remediation award owed to the landowner
as “private claims suffered as a result of environmental damage.” First, that is not
what the statute says. In fact, the statute says excess remediation awards are returned
to the responsible party. La. R.S.30:29(D)(4). But, i f we did interpret it as VPSB
suggests, the exception in subsection (H) for “additional remediation” contractually
provided for would be superfluous. Those damages would be included in the broader
category of “private claims suffered as a result of environmental damage,” because
a breach of contract claim is a private claim. The legislature surely intended the

5 As evidenced by Act 312’s title, “Remediation of oilfield sites and production sites,” the statute
addresses remediation damages. By excepting “private claims” from Act 312’ s applicability,
“private claims” refers to non-remediation claims, which the parties indicate may include, but not
be limited to, loss of income, loss of enjoyment or use of property, diminution in value, stigma,
mental anguish.

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exception for express contractual provisions to be something other than the
exception for “private claims.” The exception for “additional remediation in excess
of the requirements of the plan adopted by this court” express es when a landowner
can recover more remediation damages than the feasible plan : when it is
contractually provided for. In those instances, “any award in connection with the
judgment for additional remediation is not required to be paid into the registry of the
court.”
In Marin v. Exxon Mobil Corp ., 09-2368 (La. 10/19/10), 48 So.3d 234 , this
court clarified the landowner’s remedy under the implied obligations of the Civil
Code. The court found when a lessee acts excessively and unreasonably , it has
“additional obligations, e.g., the obligation to correct the damage due to the
unreasonable or excessive operations.” Marin, 48 So.3d at 260. When considering
what standard of remediation will “correct the damage due to the unreasonable or
excessive operations,” th e Marin court found the lessee “does not necessarily . . .
[have] a duty to restore the land to its pre -lease condition.” Id. Rather, where the
soil i s contaminated, the additional duty of the l essee i s “to correct the
contamination.” Id. Given the definitions of “environmental damage,” “evaluation
or remediation,” and “environmental media ,” correcting the contamination is the
same as remediating environmental damage through the feasible plan.6
Both Act 312 and Marin provide that actual cleanup of the environmental
damage is the remediation remedy for breaching implied obligation s. In reaching
this conclusion, we reject VPSB’s argument that Marin merely stands for the
proposition that statewide 29(B) standards were sufficient under those facts but that

6 If the landowner is dissatisfied with the feasible plan and believes the amount deposited into the
registry of the court to fund that plan is insufficient, the remedy is not an excess award; rather, his
remedy is to appeal the judgment adopting the plan. La. R.S. 30:29(C)(6)(a) (“Any judgment
adopting a plan of evaluation or remediation . . . shall be considered a final judgment pursuant to
the code of Civil Procedure Article 2081 et seq., for purposes of appeal.”)

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each situation should be determined on a case -by-case basis. 7 While the feasible
plan may reflect changing state standards, in every case the remediation remedy is
“correct[ing] the contamination,” which is statutorily directed to be accomplished
through the feasible plan.
Our conclusion that Act 312 requires the full recovery of evaluation or
remediation damages to be through the feasible plan does not impinge substantive
rights. See M.J. Farms v. Exxon Mobil Corp., 07-2371, 11 p. 31 (L. 7/1/08), 998 So.
2d 16. Act 312 is a procedural statute. It neither creates nor divests causes of action.
La. R.S. 30:29(A). A claim for full remediation of environmental damage existed
before and exists after Act 312. However, there was never a right to receive
duplicate awards, which would result if a private money judgment for restoration is
recoverable in addition to remediation required under Act 312 .8 Again, all
remediation damages for “any actual or potential impact, damage, or injury to
environmental media caused by contamination resulting from activities associated
with oilfield sites or exploratio n and production” are exclusively paid into the
registry of the court for cleanup. La. R.S. 30:29(D) and (I)(1).
While our law allows and encourages the joinder of multiple causes of action
to recover full damages, it does not allow the recovery of dupli cate elements of
damages. Neither did the law before Act 312 allow recovery of remediation
damages in excess of the actual cost to remediate. What was lacking before Act 312,
in the absence of a request for specific performance, was the legal compulsion to
spend the “r emediation” damage award on remediation. A “remediation” award

7 Statewide Order No. 29 -B standards refer to regulatory standards established by the Office of
Conservation and set forth in the Louisiana Administrative Code.

8 The judgment in this case awarding strict liability damages indicates that all or part of that award
is “to restore the property.” By awarding money to restore the property , i.e. remediate, and
allowing remediation damages through the feasible plan, the judgment made a duplicate award.

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beyond the actual cost to remediate is not remediation. It is a windfall. The purpose
of our tort system is to make the victim whole, not generate windfall awards.
Our interpretation of Act 312 and the holding of Marin do not represent a
departure from our jurisprudence. Rather, they are consistent with case law that pre-
dates Act 312. When property damage is involved, the remedy has historically been
to repair the damage. See Terrebonne Par. Sch. Bd. v. Castex Energy, Inc. , 04-968
(La. 1/19/05), 893 So.2d 789 (rejecting the argument that an implied obligation gives
the landowner more than restoration to property’s pre -lease condition, minus wear
and tear.) See also Roman Cath. Church of Archdiocese of New Orleans v. Louisiana
Gas Serv. Co. , 618 So. 2d 874, 876 (La. 1993) (“‘[w]hen property is damaged
through the legal fault of another, the primary objective is to restore the property as
nearly as possible to the state it was in immed iately preceding the
damage....’ Coleman v. Victor, [326 So.2d 344, 346 (La. 1976)]. Accordingly, ‘the
measure of damages is the cost of restoring the property to its former condition. ’”)
When a person sustains property damage due to the fault of another, he is entitled to
recover, among other damages, the cost of restoration that has been or may be
reasonably incurred. Roman Cath. Church, 618 So. 2d at 879. That was the law
before Act 312 and is the law after Act 312. The only change by Act 312 is the
procedure for determining restoration costs that “ may be reasonably incurred .”
Those are now fixed by LDNR, with input from the parties and subject to approval
by the trial court. La. R.S. 30:29(C).
In M.J. Farms, 998 So. 2d 16, we upheld the constitutionality of Act 312 and
acknowledged “it changed the remedy available.” The plaintiffs in M.J. Farms
argued that Act 312 “represents a substantive amendment of the law because a
landowner can no longer recover damages for a contamination on his land that also
constitutes a public law violation.” Id. at p. 34 . I n rejecting that contention, this
court found Act 312 “ attaches a procedure for judicial resolution of claims for

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environmental damages” to “ensure that damage to the environment is rem ediated
to a standard that protects the public interest” in accord with Louisiana Constitution
Article I, Section 4. Id. at 36. Interpreting Act 312 “remediation damages” to mean
only the cost necessary to fund the feasible plan does not alter that statutory scheme.
Before Act 312, parties who contracted to return property to its pre-lease
condition were obligated to do so. Thus, express contractual rights were available
before Act 312’s enactment. See Corbello, 850 So.2d 686. An express contractual
right to have property restored to its original condition remains under Act 312 ( see
Subsection (H), sentence 2). Before Act 312, l eases silent as to the remediation
obligation were supplemented by the Civil Code with an implied obligation to
restore the property to its pre-lease condition, minus ordinary wear and tear. That
cause of action remains ( see Subsection (D)(1)). Landowners could always bring
tort claims. Tort claims and other non -remediation claims remain (see Subs ection
(H), sentence 1). Act 312 changes none of those rights. Importantly, though, none
of the theories of recovery predating Act 312 , including the implied obligations of
the Civil Code, allowed a landowner to recover duplicate awards for the evaluation
or remediation of environmental damage.
We maintain that the holding in Louisiana Land I was in error. The error was
not in recognizing implied obligations, as those obligations existed before Act 312
and remain . Rather, we erred in finding that recovery of remediation damage
resulting from the breach of implied obligations is not governed by Subsection (D),
with the remediation award being the feasible plan.9 That was palpable error.

9 Our holding moots any discussion about the jury verdict being internally inconsistent with regard
to the breach of contract claim. The principal basis of the contract claim was that UNOCAL
breached the implied duty not to conduct its operations in an unreasonable or excessive manner.
Because the exclusive remediation remedy for breaching this implied obligation is through the
feasible plan, the remediation award would be the same even if the jury had found UNOCAL’s
operations were “unreasonable or excessive.” Thus, under our interpretation of Act 312,
UNOCAL’s limited admission of liability for environmental damage includes responsibility for
any unreasonable or excessive operations, and the corresponding remedy is specif ic performance
of cleanup, i.e., the feasible plan.

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On rehearing, VPSB again asserts constitutional challenges to Act 312 based
on our current interpretation. Specifically, VPSB asserts we are imposing a
retroactive cap on remediation damages measured by the cost of the feasible plan
and depriving VPSB of a vested right in its cause of action. The argument is that
VPSB has a vested right to sue for breach of implied obligations that is protected by
the guarantee of due process.
VPSB’s argument resurrects the constitutional challenge considered and
rejected in M.J. Farms, 998 So.2d 16. The identical causes of action pled in M.J.
Farms (negligence, failure to act as a reasonably prudent operator, strict liability,
breach of contract, and trespass) are pled here. In M.J. Farms we found, “Act 312
does not divest plaintiff of any of these causes of action.” Id. at 34. Rather, “the
provisions of Act 312” are “reasonable statutory restrictions and reasonable exercise
of the police power.” Id. at 35. As stated above, the causes of action that pre -date
the enactment of Act 312 remain; only the procedure for recovery of a single element
of damage was modified. Stated differently, the remediation or restoration remedy
has not changed, only who determines it. “Act 312 adopts a procedure and simply
seeks to ensure that the property that is environmentally damaged is actually
remediated.” The remedy of specific performance requiring cleanup of
environmental damage existed before Act 312. Specific performance is a preferred
remedy when available. Olympia Mins., LLC v. HS Res., Inc., 13-2637, p. 37 (La.
10/15/14), 171 So.3d 878, 901 (“For breach of contract, specific performance is the
preferred remedy.”) Act 312 achieves specific performance through the funding of
the feasible plan. Additionally, it provides for p rivate, non -remediation claims,
express contract claims, and recovery of expert and attorney fees. La. R.S.
30:29(E)(1). Act 312 does not divest the landowner of any remedy he had before its
enactment. We find Act 312 constitutional as written and applied.

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Exception of Prescription
On the issue of prescription, this court correctly held previously that this court
has not pronounced a strict, bright -line rule stating that, when a party hires an
attorney, such an event is dispositive proof of the party’s knowledge that he has
sustained a legally compensable injury. State v. Louisiana Land and Exploration
Co., 20-00685 (La. 6/30/21), _So.3d_ . Louisiana Code of Civil Procedure article
La. 863(B), which requires an attorney to conduct a “reasonable inquiry” into
“[e]ach claim, defense, or other legal assertion” in the pleading to be filed to
determine that it is “warranted by existing law or by a non-frivolous argument for
the extension, modification, or reversal of existing law.” In addition, Article 863(B)
compels an attorney to ensure that “[e]ach allegation or other factual assertion in the
pleading has evidentiary support or, for a specifically identified allegation or factual
assertion, is likely to have evidentiary support after a reasonable opportunity for
further investigation or discovery.” To attribute to a litigant all of the knowledge that
is required to be aware that he has a legally compensable claim on the day that he
consults an attorney to ascertain this knowledge would require the attorney to forgo
his duties under Article 863(B), in favor of filing a lawsuit that he cannot validly
certify under Article 863, in order to protect the potential litigant from a claim of
prescription.
As we noted in our prior opinion, no evidence was submitted to the trial court
that could have imputed knowledge to the school board, when legal counsel was
sought, that they had been damaged by UNOCAL’s actions; VPSB had received no
facts, evidence, or l and reports that would confirm it had actual or constructive
knowledge of any injuries and no school board representative had visited the
property. Therefore, we previously concluded based on the facts before the trial
court, it did not manifestly err in denying the exception of prescription. Our prior
ruling is maintained.

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CONCLUSION
We affirm our original decree. The matter is remanded for a new trial on any
private causes of action that seek non -remediation damages, including the strict
liability claim, which is not prescribed.

SUPREME COURT OF LOUISIANA
No. 2020-C-00685
STATE OF LOUISIANA, ET AL.
VS.
LOUISIANA LAND & EXPLORATION CO., ET AL.
On Writ of Certiorari to the Court of Appeal, Third Circuit,
Parish of Vermilion
ON REHEARING
WEIMER, C.J., dissenting in part.
I voted to grant rehearing in this matter, agreeing that a reexamination of all
issues in this case was appropriate. In my dissent on original hearing, I explained a
particular concern I found with the majority opinion, believing the opinion erred by
considering and ruling on the issue of the correctness of this court’s earlier opinion
in this same case, State v. Louisiana Land and Expl. Co. , 12-0884 (La. 1/30/13),
110 So.3d 1038 (“Louisiana Land I”), when the issue was not raised as error and
was understood to be law of the case. State v. Louisiana Land and Expl. Co., 20-
0685 (La. 6/30/21), ___ So.3d ___ (Weimer, C.J., dissenting in part). However, on
rehearing, the majority affirms their holding that the ruling in Louisiana Land I was
palpable error. Thus, I must once again respectfully dissent.
A determination of how to interpret Act 312 has already been made. In
Louisiana Land I, this court held that 2006 La. Acts 312 (La. R.S. 30:29) did not cap
damages at the amount necessary to fund the statutory remediation plan, and I
continue to believe that decision was correct. The purpose of Act 312 was to create
an obligation that plaintiffs who were awarded remediation damages were required

to perform remediation work. Louisiana Land & Expl. Co., 12-0884 at 15; 110
So.3d at 1049. Act 312 was not a substantive amendment of the law and does not
divest plaintiffs any of causes of action. Id., 12-0884 at 25; 110 So.3d at 1056; M.J.
Farms, Ltd. v. Exxon Mobil Corp., 07-2371, pp. 27-30 (La. 7/1/08), 998 So.2d 16,
34-35. Act 312 did not prohibit the award of remediation damages for more than the
amount necessary to fund the statutorily mandated feasible plan. Rather,
procedurally, Act 312 changed how damages to remediate property can be applied–in
remediation of the property for the benefit of the landowner, the public, and the
environment. Under Act 312, landowners do not receive that portion of the
remediation damages award needed to fund the statutorily mandated feasible plan;
these funds must be deposited into the registry of the court for remediation of the
property. Louisiana Land & Expl. Co., 12-0884 at 16; 110 So.3d at 1049.
I am troubled by this court’s unilateral rejection of Louisiana Land I,
considering the parties, and lower courts, have operated under this court’s holding for
more than nine years. Neither party initially asserted as error this court’s holding in
Louisiana Land I, nor was the issue briefed on original hearing. In fact, in its writ
application to this court, UNOCAL did not object to payment of the $3.5 million in
remediation damages awarded by the jury, did not assert error relative to that award,
and argued the jury’s verdict should be reinstated. Rather, this court raised the issue
sua sponte in the opinion on original hearing. Under the particular facts and
circumstances of this case, I again find no justification for applying the palpable error
exception to the law of the case doctrine. See Louisiana Land & Expl. Co. v.
Verdin, 95-2579, p. 4 (La.App. 1 Cir. 9/27/96), 681 So.2d 63, 65. Institutionally,
there is much to be said for finality and resolution of a dispute.
2

Considering the specific and unique facts of this case, I maintain my original
dissent on this issue. I further find the jury’s verdict is supported by the record.
Thus, I would reverse the judgment of the court of appeal and reinstate the verdict.1
1 I agree with the majority that the trial court did not manifestly err in overruling the exception of
prescription and our prior ruling on that issue should be maintained.
3

SUPREME COURT OF LOUISIANA
No. 2020-C-00685
STATE OF LOUISIANA, ET AL.
VS.
LOUISIANA LAND & EXPLORATION CO., ET AL.
On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Vermilion
On Rehearing
Crichton, J., dissents in p art and additionally co ncurs in part and assigns
reasons:
For reasons set forth in the per curiam, I agree plaintiffs are not entitled to any
remediation damages in excess of the feasible plan unless required by the terms of
an express contractual provision. See La. R.S. 30:29(H). I dissent in part because I
would find VPSB’s strict liability claim prescribed and/or is immaterial.
In addition to adopting Justice Crain’s well -reasoned analysis with minor
exception,1 I further highlight that to recognize VPSB’s strict liability claims have
prescribed would not eliminate an attorney’s requirement to conduct a reasonable
inquiry into the claims pleaded in a petition under La. C.C.P. art. 863(B) . Such
concern expressed by the majority is particularly speculative in the p resent case,
where no one argues VPSB’s counsel violated its obligations under La. C.C.P. art.
863(B), including th e duty to certify that “[e]ach claim, defense, or other legal
assertion in the pleading is warranted by existing law or by a nonfrivolous argument
for the extensio n, modification, or reversal of existing law .” La. C.C.P. art.
863(B)(2).
1 I would not go so far as to say that a cause of action “need not be fully extant to start prescription.”
State v. La. Land Exploration, Co., 20-0685 (La. 6/1/22), __ So. 3d __ (Crain, J., dissenting in part
and assigning reasons) (emphasis added). I agree with Justice Crain that damages need not be
fully realized for prescription to commence. However, in my view, I disagree with the foregoing
statement to the extent it implies that causes of action could accrue in the absence of all elements
of the legal claim being met.

Assuming a scenario where, unlike here, an attorney takes on a client for
representation but after reasonable inquiry finds that he or she cannot certify the
necessary pleading under La. C.C.P. art. 863(B)(2), the attorney is not required to
pursue the client’s proposed action. Where a reasonable inquiry would reveal such
claims are unwarranted under the law and the facts, the plaintiff’s “claims” would
surely not prescribe because a claim cannot prescribe if it does not exist. Justice
Crain’s recognition that hiring counsel “is typically part of an investigatory process
and indicates a sufficient level of awareness that the law requires a ction” does not
somehow change the attorney’s rights and duties in such cases, and, again, such facts
are not present. State v. La. Land Exploration, Co., 20-0685 (La. 6/1/22), __ So. 3d
__ (Crain, J., dissenting in part and assigning reasons). More importantly, because
both parties indicated in their closing arguments that the strict liability claims were
for environmental remediation, those claims are remedied solely through the feasible
plan under Act 312.
“When damage is caused to immovable property, the one -year prescription
commences to run from the day the owner of the immovable acquired, or should
have acquired, knowledge of the damage .” La. C.C. art. 3493 (emphasis added).
VPSB’s actual or constructive knowledge of its strict liability claims is evidenced,
inter alia, by the board’s public vote to move forward with “potential litigation” by
hiring counsel to represent them in “recovery efforts of damaged section properties.”
(Emphasis added.) The use of the word “damaged” is significant because it
demonstrates the board’s understanding that there was an injury, and the moment in
time when VPSB acquired such knowledge is the point from which prescription
commenced.
While I agree with the per curiam that Act 312 limits the amounts plaintiffs
may personally recover, I additionally concur to emphasize how Act 312 nonetheless
protects landowners. Beyond the restoration of their property resulting from funding

and implementation of the feasible plan, plaintiffs maintain rights under Act 312 to
recover costs of litigation such as expert witness fees and reasonable attorneys fees:
In any civil action in which a party is responsible for damages or
payments for the evaluation or remediation of environmental
damage, a party providing evidence, in whole or in part, upon which
the judgment is based shall be entitled to recover from the party or
parties admitting responsibility or the party or parties found legally
responsible by the court, in addition to any other amounts to which the
party may be entitled, all costs attributable to producing that portion
of the evidence that directly relates to the establishment of
environmental damage, including, but not limited to, expert witness
fees, environmental evaluation, investigation, and testing, the cost of
developing a plan of remediation, and reasonable attorney fees
incurred in the trial court and the department.
La. R.S. 30:29(E) (emphasis added). Landowners seeking redress for environmental
damage are thus empowered to obtain legal representation and build their case, and
their counsel may recover reasonable fees where, as here, years of litigation preceded
the remediation judgment. This is true regardless of whether the landowners
personally receive a separate monetary award for their remediation claims.
For the foregoing reasons, I additionally co ncur with the majority ruling
affirming our original decree and remanding for new trial on any claims related to
non-remediation damages, and I dissent as to the strict liability claim, as I would
find it prescribed.

SUPREME COURT OF LOUISIANA

No. 2020-C-00685

STATE OF LOUISIANA, ET AL.

VS.

LOUISIANA LAND & EXPLORATION CO., ET AL.

On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Vermilion

On Rehearing

CRAIN, J. dissents in part and assigns reasons.
I dissent only from the finding that VPSB’s strict liability cause of action did
not prescribe.
UNOCAL’s prescription exception is premised upon VPSB’s strict liability
tort claim being filed more than one year after VPSB consulted an attorney regarding
possible environmental damage. Pre-trial, the trial court deferred the exception to
the trial and did not provide reasons. At trial, the trial court denied the exception,
but again did not provide reasons. Then, after trial, when ruling on UN OCAL’s
motions for judgment notwithstanding the verdict and for new trial, which included
the prescription issue, the trial court for the first time articulated its reasoning for
denying the prescription exception, concluding “a claim for property damages []
brought by a school board in the name of the State []cannot be prescribed.” The court
of appeal affirmed.1
First, it is necessary to determine whether prescription can run against VPSB
at all, before looking at whether the claim factually prescribed. The trial court’s
imprescriptibility conclusion hinged on VPSB being the “state” relative to its
management of Section 16 land. The argument is that because VPSB is the state, it

1 The court of appeal held the public trust doctrine grants a school board immunity from
prescription when it unilaterally elects to represent the State on any claim relating to Section 16
land. Having considered this jurisprudentially -created doctrine, I find it inapplicable here, where
there is express statutory language addressing when a school board can sue on behalf of the State.

2

is cloaked with the state’s immunity from prescription. “Prescription shall not run
against the state in any civil matter, unless otherwise provided in this constitution or
expressly by law.” La. Const. Art. XII, sec. 13. To resolve this issue, the relationship
between VPSB and the State relative to the Section 16 land must be examined.
The federal government granted a fixed proportion of lands within the borders
of each state for the support of public education. Andrus v. Utah, 446 U.S. 500, 522-
23, 100 S. Ct. 1803, 1814-15, 64 L.Ed.2d 458 (1980). In Louisiana, these properties
are governed by an extensive statutory scheme. See La. R.S. 41:631-981. Relevant
here, the state granted school boards the right to “administer and use the property for
public school purposes.” La. R.S. 41:638. 2 In connection with that grant, the
legislature expressly limited authority for school boards to represent the state relative
to Section 16 land.3 Specifically, Louisiana Revised Statutes 41:961, titled, “Actions
for recovery of title and damages for trespass,” provides:
The school boards of the various parishes of the state may contract with
and employ on the part of the State of Louisiana, attorneys at law, to
recover for the state, damages for trespass to the sixteenth section
known as school lands the title to which is still in the state. Each of the
boards may make these contracts for the lands situated in its own parish

2 Louisiana Revised Statutes 41:638 provides:

Whenever any real property has been acquired by the state of Louisiana, any
municipality, parish school board, or any other subdivision or agency of the state
of Louisiana by virtue of a deed, act of sale, donation, or other form of transfer
[federal land grant] , which contains a stipulation that such property is to be used
for public school or public educational purposes, said deed, act of sale, donation,
or other form of transfer, shall constitute a dedication of such property to the public
for such purposes and the school board in whose district the property lies shall have
the right to administer and use the property for public school purposes.” (emphasis
added).

3 VPSB is a political subdivision of the state. La. Const. art. VI, § 44, (“Political subdivision”
means a parish, municipality, and any other unit of local gove rnment, including a school board
and a special district, authorized by law to perform governmental functions.) (emphasis added).
Louisiana Revised Statutes 17:51 provides, “There shall be a parish school board for each of the
parishes, and these several par ish school boards are constituted bodies corporate with power to
sue.” Thus, a school board is empowered to sue on its own behalf. As a juridical person, then,
VPSB has no more legal capacity than the law expressly grants it. Cmt. C to La. Civ. Code art. 24.
To expand its legal capacity to sue on behalf of anyone other than itself, authority must be
expressly granted. See Rollins Environmental Services of Louisiana, Inc. v. Iberville Parish Police
Jury, 371 So.2d 1127, 1131 (La.1979) (“a political subdiv ision only possesses those powers
conferred by the State’s Constitution and statutes.”)

3

and no others. The school boards may also sue for and recover the
sixteenth section known as school lands. (emphasis added).

Louisiana Revised Statutes 41:963, titled, “Suit in the name of state; scope,”
confirms the school board’s limited authority to pursue claims on behalf of the
state:
Suit in all cases shall be brought in the name of the State of Louisiana,
and the attorneys employed shall sue for the value of all timber cut and
removed from any such lands, as well as any and all other legal
damages caused by any trespass. (emphasis added).

When application of a clear and unambiguous statute does not lead to absurd
results, the law shall be applied as written, with no further interpretation made in
search of the intent of the legislature. La. Civ. Code art. 9; La. R.S. 1:4; Cleco
Evangeline, LLC v. Louisiana Tax Commission, 01-2162, p. 5 (La. 4/3/02), 813
So.2d 351, 354. Pursuant to the plain language of these statutes relating to Section
16 land, a school board is only authorized to sue on behalf of the state to recover
damages for trespass or to recover title.4 Otherwise, VPSB, as a political subdivision
of the state, i s a separate juridical person and sues or is sued in its own capacity.
VPSB’s strict liability claim to recover for environmental damage is outside the
scope of the actions for which a school board is authorized to sue on behalf of the
state. Therefore, VPSB cannot invoke the state’s constitutional immunity from
prescription.
The next inquiry is whether VPSB’s strict liability claim factually prescribed.
The parties argue over the applicable standard of review. VPSB argues the
prescription issue involves factual findings that are subject to manifest error review.
UNOCAL contends the finding that the tort claim is imprescriptible is legal error
that interdicted the fact -finding process, requiring de novo review. After further

4 See relatedly State v. City of Pineville , 403 So.2d 49, 52 (La. 1981) (finding DOTD, a state
agency, lacked specific statutory authority to sue in the s tate’s name for repayment of costs
associated with highway improvements a nd, thus, could not invoke the s tate’s constitutional
immunity from prescription).

4

review, it is clear the low er courts based their prescription decisions upon VPSB’s
relationship to the state, finding the claims imprescriptible. While the majority
applies a manifest error standard of review, imprescriptibility in this context involves
a legal, not factual, concl usion. Therefore, rather than giving the trial court
deference for factual conclusions it did not make, the facts relative to prescription
should be reviewed de novo. See Catahoula Par. Sch. Bd. v. Louisiana Mach.
Rentals, LLC, 12-2504 (La. 10/15/13), 124 So.3d 1065, 1071.
Louisiana Civil Code article 3493 provides, “When damage is caused to
immovable property, the one-year prescription commences to run from the day the
owner of the immovable acquired, or should have acquired, knowledge of the
damage.” Prescription commences when a plaintiff obtains actual or constructive
knowledge of facts indicating to a reasonable person that he or she is the victim of a
tort. Campo v. Correa , 01 -2707 (La. 6/21/02), 828 So. 2d 502, 510 -11.
Constructive knowledge is whatever notice is enough to excite attention and put
the injured party on guard and call for inquiry. Such information or knowledge as
ought to reasonably put the alleged victim on inquiry is sufficient to start the running
of prescription. Id.
A cause of action need not be fully extant to start prescription. For claims
related to property damage, “[p]rescription runs from the date on which [the
plaintiff] first suffers actual and appreciable damage, even though he may thereafter
come to a more precise realization of the damages he has incurred or incur further
damage as a result of the completed tortious act.” Hogg v. Chevron USA, Inc., 09-
2632 (La. 7/6/10), 45 So. 3d 991, 1001. In Hogg, the defendants claimed the
plaintiffs acquired knowledge of damage to their property more than one year prior
to the filing of suit based on the plaintiffs’ receipt of “Environmental Contamination
Notification” letters sent from LDEQ informing them that environmental [gasoline]
contamination had been detected around their property and “due to the direction of

5

groundwater flow, there [was] a possibility that gasoline may have migrated to their
property.” The plaintiffs responded the letters did not put them on notice that their
property was damaged; rather, the letters merely advised they would be contacted
“some time in the future” if access to their land was necessary to determine the extent
of the contamination. They asserted the first notice of actual contamination was a
later letter requesting access to their prope rty to conduct remediation. This court
found the first letters to the plaintiffs provided sufficient information to excite
attention and put the plaintiffs on notice that they had a reasonable basis to pursue a
claim, even though they did not specifically inform them of contaminated soil and
groundwater on their property.5
In Marin v. Exxon Mobil Corp. , 09-2368 (La. 10/19/10), 48 So.3d 234, this
court held the plaintiffs’ knowledge that sugarcane would not grow in an area that
was historically productive and its knowledge that an oil company had been dumping
oil in pits on its property for years was sufficient to excite attention and put plaintiffs
on guard, thereby triggering the commencement of prescription. The need for an
expert to determine the extent of the contamination did not prolong the prescriptive
period until an expert was hired. Thus, Marin makes clear plaintiffs have a burden
to investigate potential claims for property damage upon notice of even less concrete
knowledge of contamination th an that in Hogg. The cause of action need only be

5 The following law journal excerpt captures the importance of investigating potential property
damage in this context:

This decision [ Hogg] sends a message to landowners that they have a burden to
investigate possible claims when they receive information that their property might
be contaminated. Landowners who ignore signs of contamination and then claim
that they waited to file suit until they knew the extent of the damage or had
definitive evidence of damage will face a challenge in successfully defeating an
exception of prescription.

Loulan Pitre, Jr., Six Years Later: Louisiana Legacy Lawsuits Since Act 31 2, 1 LSU J. Energy L.
& Resources 93, 99-100 (2012).

6

sufficiently developed so as to draw attention to its possible existence and warrant
further investigation.
While Campo cautions that mere apprehension does not trigger prescription,
one must be equally a ware that information sufficient to prompt an investigation
does. That is why seeking legal counsel has historically been a consistent delineator
for starting prescription. 6 While not always determinative, retaining an attorney is
typically part of an investigatory process and indicates a sufficient level of awareness
that the law requires action. While some exceptions may exist, hiring counsel is a
manifestation of a person’s knowledge that he has suffered damage.
On August 21, 2003, VPSB hired counsel to file this claim. VPSB held an
executive meeting that day, with an attorney invited and present. The minutes reflect
the agenda item was listed as “Potential litigation,” and Superintendent Puyau
testified the litigation referred to the instant case. La ter the same day, the School
Board publicly voted to retain counsel “to represent the Board in mitigation recovery
efforts of damaged sixteenth section properties.”

6 See Guitreau v. Kucharchuk, 99-2570 (La. 5/16/00), 763 So. 2d 575, 580 (“plaintiff discovered
that he had a cause of action . . . when he consulted with an attorney”); Gore v. Snider, 590 So. 2d
677, 680 (La. App. 3 Cir. 1991) (cause of action began to prescribe when “plaintiff consulted with
her attorney for consideration of a possible malpractice claim”); Phelps v. Donaldson , 243 La.
1118, 1122; 150 So. 2d 35 (1963) (attorney’s letter to defendant demonstrated plaintiff learned of
allegedly defective work); Medical Review Panel Proceeding of Williams v. Lewis , 08-2223 (La.
App. 1 Cir. 5/13/09), 17 So. 3d 26 (plaintiff “had knowledge sufficient to start the running of
prescription . . . when she consulted with an attorney”); Boyd v. B.B.C. Brown Boveri, Inc., 26,889
(La. App. 2 Cir. 5/10/95), 656 So. 2d 683, 688-89, writ not considered, 95-2387 (La. 12/8/95), 664
So. 2d 417 (plaintiff “had constructive knowledge when he first consulted an attorney”); Clofer v.
Celotex Corp., 528 So. 2d 1074, 1076 (La. App. 5 Cir. 1988) (“the act of hiring an attorney has
been found to evidence the plaintiff’s awareness of an injury”); Harlan v. Roberts, 565 So.2d 482,
478 (La.Ct.App.1990) (prescription period began to run when plaintiff indicated she would consult
an attorney); see also McLaughlin v. GlaxoSmithKline, L.L.C., 601 Fed. Appx. 312, 315 (5 th Cir.
2015) (under Louisiana law, prescription began to run, at latest, when consumer retained attorney);
Yates v. Sw. L ife Ins. Co. , CIV. A. 97 -3204, 1998 WL 61033, at *5 (E.D. La. 2/12/1998)
(plaintiff’s written threat to pursue legal remedies was sufficient to begin the one-year prescriptive
period); Nw. Mut. Life Ins. Co. v. Hart, CIV.A. 95-1042, 1996WL419804, at *2 (E.D. La. 7/25/96)
(the act of hiring an attorney constitutes awareness of plaintiff’s injury).

7

A de novo review leads to the conclusion that VPSB had, at least, constructive
notice of this claim on August 21, 2003. Retaining counsel to mitigate and pursue
recovery efforts related to property damage, with an eye toward “potential
litigation,” is “notice enough to excite attention and put the injured party on guard
and call for inquiry.” Campo, 828 So.2d at 510-511. “Such notice is tantamount to
knowledge or notice of everything to which a reasonable inquiry may lead.” Id.
VPSB contends retaining an attorney was not knowledge of “actual and
appreciable damage[ ,]” but merely a step in investigating whether there was
actionable contamination on the property. Harvey v. Dixie Graphics, Inc., 593 So.2d
351, 354 (La. 1992). First, the argument concedes that retaining counsel was a step
in the investigation process. That is “a call for inquiry,” thus starting prescription.
Second, VPSB’s argument that hiring counsel did not start prescription is
undermined by the admission that counsel was retained “to represent the Board in
mitigation recovery efforts of damaged sixteenth section properties.” VPSB cites
no “actual and appreciable damage” that developed after it hired counsel. The
damage to the land existed on August 21, 2003. Thus, suit was filed on the
knowledge VPSB possessed when it hired counsel on August 21, 2003, or at least
upon whatever knowledge reasonable inquiry would have revealed.7 See Marin, 48
So.3d at 250 (it is “important to note that the allegations of [plaintiffs’] petition are
based on the same facts that they could have discovered had they inv estigated in
1991 or 1995.”) See also Hogg, 45 So.3d at 1001 (“The facts that form the basis of

7 Superintendent Puyau testified VPSB hired no one to visit the property before suit was filed and
no testing was done before suit was filed. He stated the decision to sue in 2004 “was on advice of
our legal counsel” and was based on a “concern” due to “the high levels of drilling.” Again, that
knowledge existed when counsel was hired. The record does not reflect that anything changed
regarding the conditio n of the land after counsel was hired. VPSB is imputed with notice of
everything that would have been revealed by an investigation following counsel being hired. See
Campo, 828 So.2d at 510 -511 (“Such notice is tantamount to knowledge or notice of everyth ing
to which a reasonable inquiry may lead.”).

8

the claims asserted in the petition are the same facts contained in the 2001 and 2002
letters.”)
Calling for inquiry or investigation does not mean suit must be filed the next
day. The applicable prescriptive period only begins on the date of actual or
constructive notice. La. Civ. Code art. 3493. But, I reject the notion that “attention”
can be sufficiently “excited” to hire an attorney to investigate environm ental
damage, yet insufficient to start the prescriptive period to sue for that damage. VPSB
had one year to advance their investigation and file suit, at the latest, from the day
counsel was consulted relative to possible environmental damage.
VPSB had actual or constructive knowledge of damage to its Section 16 land
more than one year before suit was filed. I find the strict liability tort claim
prescribed.8 I would r everse the denial of the exception of prescription, grant the
exception and dismiss the strict liability tort claims.

8 Relative to the strict liability award, the judgment award s $1,500,000 for “damage to the
property” and “to restore the property.” To the extent this award includes damages other than “for
the evaluation and remediation of . . . the contamination that resulted in the environmental damage”
under La. R.S. 30:29(D), I find it is prescribed. Otherwise, as explained in our Act 312 analysis,
if the award is for remediation of environmental damage, the sole remedy is the feasible plan.

SUPREME COURT OF LOUISIANA
No. 2020-C-00685
STATE OF LOUISIANA, ET AL.
VS.
LOUISIANA LAND & EXPLORATION CO., ET AL.
On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Vermilion
On Rehearing
McCALLUM, J., additionally concurs with reasons.
I write separately to underscore the importance of the Court’s decision on
prescription. I do so not because I necessarily believe such actions are
imprescriptible, but because it is unnecessary to reach that point. In my view, we
correctly uphold the original findings that we should first review whether the action
was prescribed by the passage of more than one year, and that the trial court made a
factual finding with regard to prescription. State v. Louisiana Land & Exploration
Co., 20-00685 (La. 6/30/21), --- So. 3d ---, 2021 WL 2678913.
In addition to the reasons set forth in the original opinion, I believe it is
important to highlight the actions of UNOCAL at the time the trial court ruled on
the exception of prescription. The trial court held a hearing on May 1, 2015, at which
time, counsel for VPSB and UNOCAL argued prescription, both on a factual basis
and on the basis of legal imprescriptibility, with UNOCAL specifically introducing
evidence pertaining to the one-year prescriptive period. The trial court overruled
UNOCAL’s exception of prescription. Before the close of the hearing, UNOCAL
requested that the jury specifically decide “whether the one-year prescription has
elapsed.” In seeking permission to allow the jury to decide that fact instead, it was

2

thus clear that even UNOCAL tacitly agreed that the trial court’s decision was based
on a factual finding. The trial court denied UNOCAL’s request.
Three year s later, in providing reasons for denying UNOCAL’s post-trial
motions of judgment notwithstanding the verdict and for new trial, the trial court
reasoned, for the first time, that VPSB’s action was imprescriptible. By all accounts,
the reasons were not given to address its previous ruling on prescription, but instead
to address the two aforementioned motions which were before it at that time. Indeed,
but fo r the post -trial motions filed by UNOCAL , the trial court would not have
provided such additional reasons in the first place. Thus, it seems clear tha t the
reasons announced by the trial court at that time were made to address UNOCAL’s
attempt to retry its case and the prescription issue, and thus, the reasons were a
second, additional set of reasons to buttress the court ’s previous denial of
UNOCAL’s exception of prescription.
The majority correctly maintains its previous holding that “we cannot find the
trial court was manifestly erroneous or clearly wrong in finding that UNOCAL failed
to carry its burden of proof.” Id. at 20-00685, p. 7 , --- So. 3d at ---, 2021 WL
2678913 at *4. I respectfully disagree with Justice Crain’s dissenting analysis, and
in particular, footnote 6, which ultimately suggest s a near bright line rule that
“seeking legal counsel has historically been a consistent delineator for starting
prescription.” I find that such has never been announced by this Court. Indeed, a
closer inspection of the jurisprudence shows that each decision considered the entire
context of the evidence, using the hiring of counsel as only part, albeit a weighty
portion, of its findings and reasoning. Furthermore, in most, if not all cases, the
courts did not necessarily find that the hiring of a lawyer was the sole delineating
factor. Instead, the reviewing courts simply could not find manifest error in the
lower courts’ decisions.

3

In looking to the jurisprudenc e of this Court, there is no single, delineating
factor. In Phelps v. Donaldson, 243 La. 1118, 150 So. 2d 35, (1963), for example,
this Court noted that it was an attorney’s letter sent to the defendant regarding the
petitioner’s complaints that began the tolling of prescription. As the hiring of an
attorney would necessarily predate the attorney writing a letter on behalf of the
client, it would seem clear that hiring an attorney was not a delineating factor to
begin the tolling of prescription. In Guitrea v. Kucharchuk, 99-2570 (La. 5/16/00),
763 So. 2d 575, this Court looked to the entire factual record that indicated the
petitioner had consulted an attorney and, at that same time, specifically signed a
medical authorization form, clearly aware of the injuries upon which suit was later
filed. In Campo v. Correa, 01-2707 (La. 6/21/02), 828 So. 2d 502, this Court found
the petitioner’s actions were not prescribed, focusing not on a singular event but on
the entire slate of evidence presented, including the original surgery date, subsequent
check-up dates, and even the date that an expert notified petitioner’s counsel of his
review of the medical records, which itself suggest s that counsel had already been
hired. Thus, in my view, this Court is correct to affirm its previous decision, and its
conclusion that to rule otherwise, “parties would be encouraged to engage in
scattergun litigation,” when “[t]o the contrary, people should be encouraged to
investigate before they litigate.” State v. La. Land & Exp l., 20-00685, p. 8, --- So.
3d at ---, 2021 WL 2678913.
Ultimately, I find the matter of prescription to be straightforward. The trial
court was presented with evidence of the school board minutes and testimony by the
superintendent, who, even in light of the minutes, placed into doubt the actual and
constructive knowledge of the school board. The trial court overruled UNOCAL’s
exception of prescription, evidently finding UNOCAL failed to meet its burden.
Even though we may have ruled differently, we cannot find manifest error in the
factual ruling of the trial court.

SUPREME COURT OF LOUISIANA

No. 2020-C-00685

STATE OF LOUISIANA, ET AL.

VS.

LOUISIANA LAND & EXPLORATION CO., ET AL.

On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Vermilion

ON REHEARING

GRIFFIN J., concurs in part, dissents in part and assigns reasons.

I concur with the opinion of the Court to the extent it maintains our prior ruling
that the strict liability claim is not prescribed. However, I dissent as to the Act 312
issue and find no reason to revisit this Court’s decision in State v. Louisiana Land
and Exploration Co ., 12-0884 (La. 1/30/13) , 110 So.3d 1038 (“La Land I ”). The
legislative response to La Land I made clear that changes in the relevant law would
not apply to case s that were set for trial before May 15, 2014. See 2014 La. Acts
400, § 3. Respectfully, this Court offers resolutions to issues neither party originally
raised, upending over a decade of litigation in the process.