Conoco, Inc. v. Halter-Calcasieu, L.L.C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-00136

CONOCO, INC.

VERSUS

HALTER-CALCASIEU, L.L.C., ET AL.

*******
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 2000-5364 C/W 2001-1911
HONORABLE FRED R. GODWIN, PRESIDING

*******
SYLVIA R. COOKS
JUDGE
*******

Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Marc T. Amy, Judges.

AFFIRMED.

James H. Hohenstein
Haight, Gardner, Holland & Knight, L.L.P.
195 Broadway
New York, NY 10007
Telephone: (212) 513-3200
COUNSEL FOR APPELLANT:
CITGO Petroleum Corporation

William B. Swift
Swift, Spears & Harper, L.L.P.
First Federal Building
P.O. Box 1810
Lake Charles, LA 70602
Telephone: (337) 433-0707
COUNSEL FOR APPELLANT:
CITGO Petroleum Corporation

Hugh Ramsey Straub
Terriberry, Carroll & Yancey
3100 Energy Center
1100 Poydras Street
New Orleans, LA 70163
Telephone: (504) 523-6451
COUNSEL FOR APPELLANT:
ConocoPhillips Company

Gregory W. Belfour
Jones, Tete, Nolen, Fonti & Belfour, L.L.P.
1135 Lakeshore Drive, Suite 600
Lake Charles, LA 70601
Telephone: (337) 439-8315
COUNSEL FOR APPELLANT:
ConocoPhillips Company

James B. Doyle
Woodley, Williams, Boudreau, Norman, Brown & Doyle, L.L.C.
500 Kirby Street
P.O. Box 3731
Lake Charles, LA 70602-3731
Telephone: (337) 433-6328
COUNSEL FOR APPELLEE:
Halter Calcasieu, L.L.C., et al.

COOKS, Judge.

In this consolidated appeal, the appellants, CITGO Petroleum Corporation and

ConocoPhillips, Inc., seek to reverse the judgment of the lower court granting

summary judgment in favor of the appellees, and further seek entry of summary

judgment in their favor on the issue of liability. Alternatively, CITGO and Conoco

request this court vacate the judgment and remand the case to the district court for trial

on the issues of whether appellees’ actions constituted ultrahazardous activity and/or

intentional tort. For the following reasons, we affirm.

FACTS

On June 13, 2000, Halter-Calcasieu, L.L.C. (hereafter Halter) floated the

Calcasieu Dry Dock No. 4, which it operated, to the middle of the Calcasieu River for

the purpose of retrieving a disabled vessel and bringing it back to shore for repairs.

To accomplish this end, Halter sank the drydock with the intention of lifting the

disabled vessel. Once the drydock was sunk, the disabled vessel was moved into

position over the drydock’s submerged deck. The drydock’s ballast tanks were then

emptied, which ordinarily would cause it to rise and lift the vessel clear of the water.

However, in this instance the drydock did not rise and remained in the middle of the

river, effectively blocking traffic from moving up and down the river. Efforts to raise

the drydock were unsuccessful and it was eventually declared a total loss and

destroyed during the salvage operation.

On October 10, 2000, ConocoPhillips, Inc. filed suit in the Louisiana

Fourteenth Judicial District Court (hereafter 14th JDC) alleging economic loss and

other inconvenience as a result of the drydock’s mishap, and the temporary blocking

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of the Calcasieu River.1 This river affords the only marine access to the Port of Lake

Charles and to the property of several riparian owners, including Conoco and CITGO

Petroleum Corporation. No property damage or physical injury was alleged by

Conoco. The suit by Conoco was grounded exclusively on Louisiana state law.

On December 13, 2000, the defendants filed a Petition for Exoneration from or

Limitation of Liability pursuant to the Limitation of Liability Act, 46 U.S.C. App. §

183 et seq., in U.S. District Court. The Federal Court issued an order enjoining any

actions in other forums.

Conoco then filed a motion to dismiss the Limitation Petition on the basis that

the drydock was not a vessel. CITGO filed an identical petition. The Federal Court

directed that the motions be converted to motions for summary judgment.

In view of the prescriptive period under Louisiana law, CITGO obtained

permission from the Federal Court to lift the Limitation Act stay to allow CITGO to

file an action in the 14th JDC. CITGO then filed its Petition for Damages in the

district court on April 11, 2001, against the Halter defendants.2 Following CITGO’s

1
Named as defendants were Halter, Friede Goldman Halter, Inc., Friede
Goldman Offshore Texas, Limited Partnership, Certain Subscribing Underwriters on
Cover Note 22402/1/2/CCICF issued through Newman, Martin & Buchan Ltd.,
including certain Interested Underwriters at Lloyd’s, London and Certain Subscribing
London companies, Commercial Union Insurance Company P.L.C., Zurich Specialties
(London) Ltd. and the Marine Insurance Company Ltd.
2
On April 19, 2001, one of the defendants, Friede Goldman Halter, filed
a bankruptcy petition in the Biloxi Bankruptcy Court. The following day, Friede
Offshore, filed for similar relief. Halter had not filed such a petition, therefore the
Limitation Act proceeding against it continued in Federal Court. On May 21, 2001,
Halter filed a motion for summary judgment in the Limitation Petition action. Halter
argued that the CITGO and Conoco claims were precluded by maritime precedent.
CITGO and Conoco filed oppositions to this motion.
On June 1, 2001, Halter filed its Chapter 11 petition in the Biloxi Bankruptcy
Court. However, notice of this filing was not given to CITGO and Conoco’s counsel
as well as Halter’s Louisiana counsel. On June 8, 2001, Conoco filed its Amended
Petition for Damages in the 14th JDC against the defendants. The Federal Court lifted
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filing, the matters were consolidated.3

On June 13, 2001, the Federal Court issued a Memorandum Ruling concerning

CITGO’s and Conoco’s summary judgment motions. In re Halter-Calcasieu, L.L.C.,

2001 WL 1435468 (W.D.La. 2001). The Federal Court held that Halter was not

entitled to the limitation of liability because it failed to establish that the drydock was

a vessel under Title I, § 3 of the United States Code. Thus, it concluded that its

admiralty jurisdiction did not apply to the drydock.4

On August 9, 2001, defendants filed their Exceptions and Answers to Conoco’s

petition in the 14th JDC. On October 2, 2001, defendants also filed Exceptions and

Answers to CITGO’s petition.

On November 6, 2001, the Bankruptcy Court lifted the stay to await a merit

determination of Conoco’s and CITGO’s claims by the 14th JDC. The stay was not

lifted to allow execution upon any resulting judgments, requiring Conoco and CITGO

to return to bankruptcy court in order to collect upon any possible judgments.

At the beginning of argument in the 14th JDC, counsel for the Halter defendants

informed the trial judge of its intention to remove the litigation to the federal court

the Limitation act stay to allow Conoco to amend its pleading in the 14th JDC to add
Halter’s underwriters as parties. CITGO also filed a First Amended Petition for
Damages.
3
For the disposition of the companion case, see Conoco, Inc. v. Halter
Calcasieu, L.L.C. et al., 03-137 (La.App. 3 Cir. __/__/03), ___ So.2d ___.
4
CITGO and Conoco then filed motions for relief in the Biloxi Bankruptcy
Court. On July 24, 2001, the court ordered that the CITGO and Conoco motions be
consolidated. The court allowed the action in the 14th JDC to proceed to obtain
responsive pleadings from the Underwriters and to conduct discovery regarding
insurance coverage. The court also modified the automatic stay to ratify all actions
taken and pleadings filed in the 14th JDC. The bankruptcy court also directed the
parties to report no later than October 24, 2001, so it could determine the balance of
CITGO’s and Conoco’s motion for relief from the bankruptcy stay.
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based on bankruptcy law. On December 4, 2001, defendants removed the actions

pending in the 14th JDC to Federal Court, based on the applicability of various

bankruptcy statutes. Conoco and CITGO opposed the removal and moved for remand

and abstention. On May 14, 2002, the Federal Court granted the motions to remand

and abstain.

On August 12, 2002, Conoco and CITGO filed their Joint Motion for Partial

Summary Judgment for Liability Only. Defendants opposed the motion, filing a

cross-motion for Summary Judgment and asserted exceptions of no cause and no right

of action. Hearings on the motions were held, and in a judgment dated December 7,

2002, the trial court denied the Joint Motion for Partial Summary Judgment for

Liability Only filed by Conoco and CITGO. The trial court also granted the Halter

defendants’ cross-motion for Summary Judgment finding the “presence of the dock

on the river bottom was an obstruction of navigation and that admiralty law would

apply.” The trial court also found the pleadings and evidence insufficient to support

a finding of an intentional tort or ultrahazardous activity.

Conoco and CITGO have appealed the trial court’s judgment, asserting the

following assignments of error5:

(1) The district court erred in finding that maritime law rather than
Louisiana law applied in the case, and specifically, that this dispute was
between riparian landowners whose rights are protected by Louisiana
Civil Code arts. 656-658;

(2) The district court erred in not following the earlier determination
of the Federal District Court that admiralty jurisdiction did not attach to
Halter’s drydock;

5
CITGO and Conoco have each filed an appeal, but for purposes of discussion
their assignments of error have been combined when appropriate.
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(3) The district court erred in excluding evidence and in denying the
opportunity to prove at trial Halter’s actions constituted an intentional
tort and ultrahazardous activity.

ANALYSIS

CITGO and Conoco both argue the trial court erred in finding that maritime

law, rather than Louisiana law, governs this case. Both point to the decision rendered

on June 13, 2001 by the Federal Court, finding Halter failed to establish that the

drydock was a vessel under Title I, § 3 of the United States Code. As noted, the issue

before the federal court was whether the drydock was a “vessel” under maritime law

and thus whether Halter’s action for exoneration from or limitation of liability under

the Limitation of Liability Act, 46 U.S.C.App. § 181 et seq, was appropriate. The

Limitation Act allows a vessel owner to limit liability for damage or injury to the

value of the vessel or the owner’s interest in the vessel. The federal court narrowly

ruled in the limitation action that defendants were not entitled to pursue relief under

the Limitation Act because they could not establish that the drydock was a vessel, a

prerequisite to liability limitation.

The district court examined the Federal Court’s finding that the drydock was

not a vessel and specifically found this holding was not a “determinative point” on the

question of whether maritime law applied in this matter. We too are not persuaded by

CITGO and Conoco’s argument that the ruling by the Federal Court in a collateral

claim amounts to a “law of the case” finding on the question of maritime jurisdiction.

We also note the Federal Court specifically held “Halter’s Summary Judgment Motion

should be decided by [the 14th Judicial District Court].” In re Halter-Calcasieu, p. 3.

Whether a tort action is maritime in nature and governed by admiralty

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jurisdiction hinges on it satisfying two tests. The first, the locality test, is met if the

tort occurred on navigable waters or the injury suffered on land was caused by a

vessel on navigable waters. Grubart v. Great Lakes Dredge & Dock Co., 513 U.S.

527, 115 S.Ct. 1043 (1995); 46 U.S.C.App. § 740. The second test is met when the

tort bears a “significant connection to a traditional maritime activity.” This test

consists of two prongs: (1) the incident must have a “potentially disruptive impact on

maritime commerce,” and (2) “the general character” of the “activity giving rise to the

incident” shows a “substantial relationship to traditional maritime activity.” Id. 513

U.S. at 534, 115 S.Ct. at 1048, quoting Sisson v. Ruby, 497 U.S. 358, 363-65, 110

S.Ct. 2892, 2896 (1990).

There seems little doubt the “locality test” is satisfied in the present case. The

drydock was moved into the Calcasieu River ship channel in order to dock a damaged

vessel. The Calcasieu River ship channel is a navigable waterway. CITGO and

Conoco argue the proper locus of the tort was at their “land-based riparian-located

refinery.” We disagree. In Harp v. Pine Bluff Sand & Gravel Co., 98-1634 (La.App.

3 Cir. 11/24/99), 750 So.2d 226, a tug boat damaged a bridge over the Black River in

Concordia Parish. The plaintiffs in Harp filed suit alleging they “suffered severe and

grave economic damages to individuals and businesses . . ., lost sales, inconvenience,

increased transportation cost and lost time from work as a result of the closure of the

bridge.” Id. at 227. This court held the plaintiffs failed to state a cause of action

based on Robins Dry Dock v. Flint, 275 U.S. 303, 48 S.Ct. 134 (1927), because they

did not suffer any physical damage to their own property. We are also

convinced the second test is met in this case. The purpose of moving Halter’s drydock

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into the middle of the channel to retrieve the disabled vessel and bring it back to shore

for repairs is an activity which has a “substantial relationship to traditional maritime

activity.”

Robins, supra., set forth the principal that a plaintiff will be denied recovery for

economic loss based on state law, absent a showing of a physical injury to a

proprietary interest. In Robins, the charterer of a steamship sued for his lost profits

when his propeller was damaged by the defendant drydock. The replacement of the

propeller required the steamship to remain in drydock for two extra weeks. The

charterer sued for the loss of use of the vessel for that period. The Robins court

denied recovery stating:

. . . no authority need be cited to show that, as a general rule, at least, a
tort to the person or property of one man does not make the tort-feasor
liable to another merely because the injured person was under a contract
with that other unknown to the doer of the wrong. The law does not
spread its protection so far. (Citation omitted)

Id., 275 U.S. at 309, 48 S.Ct. at 135.

The United States Fifth Circuit sitting en banc in State of Louisiana, et al. v. M/V

Testbank, 752 F.2d 1019, 1023 (5th Cir.1985), examined the ruling in Robins, noting

it “was a pragmatic limitation imposed by the Court upon the tort doctrine of

foreseeability.” In Testbank two vessels collided with each other on the Mississippi

River Gulf Outlet and caused a chemical spill, resulting in the closure of that outlet

for several weeks. Suits were filed by shipping companies, fishermen, restaurants,

marinas and other businesses to recover for the economic loss they suffered from the

closure of the outlet. Stressing the Robins “pragmatic limitation” on foreseeability the

fifth circuit refused “to abandon physical damage to a proprietary interest as a

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prerequisite to recovery for economic loss in cases of unintentional maritime tort.”

Id. at 1020. Our court in Harp, 750 So.2d at 230, noted that the “courts have

remained dedicated to the principal set forth in Robins and have been reluctant to

recognize claims based solely on harm to the interest of business expectancy.”

Because CITGO and Conoco did not suffer any physical injury, their claims for purely

economic loss must be denied.

CITGO and Conoco argue their claims arose from their status as riparian

landowners who were damaged by the actions and omissions of another riparian

landowner who failed to conduct its land-based business activity as a shipyard in a

reasonable and prudent manner. They argue the blockage of the river by the sunken

dry dock effectively denied all riparian landowners of the use of their waterfront

property.

In support of this argument, CITGO and Conoco rely on Shaughnessy v. P.P.G.

Indus., Inc., 795 F.Supp. 193 (W.D.La. 1992), pointing out the Shaughnessy court

found the Robins rule did not preclude a fishing guide from recovering economic

losses resulting from the pollution of bodies of water caused by the discharge of

contaminants from the defendant’s property. The court found Shaughnessy, who

operated a fishing guide service, did “have physical impact, if not damage,” from the

defendant’s action. The court noted that “Shaughnessy has rights protected by Civil

Code Article 656, which provides that ‘[t]he owner of the servient estate may not do

anything to prevent the flow of water [and the] owner of the dominant estate may not

do anything to render the servitude more burdensome’” Id. at p. 196. The court in

Shaughnessy stressed that it felt the wrong committed by the defendant in that case

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was “decidedly land based for which the tort of nuisance exists.” The court also

concluded Shaughnessy was “entitled to treatment as a commercial fisherman,” and

thus exempted from the proprietary or physical injury requirement of Robins as set

forth in Testbank and Union Oil Company v. Oppen, 501 F.2d 558 (9th Cir.1974).

We find Shaughnessy is inapplicable to the case at hand. The activity

complained of in Shaughnessy, the pollution of adjacent waterways by a land based

chemical plant, was specifically held “decidedly land based.” The drydock in this

case blocked traffic in the middle of the Calcasieu River. Further, the court in

Shaughnessy found the claimant belonged to a specific category, i.e, commercial

fishermen, which was exempted from the Robins rule. CITGO and Conoco are

entitled to no such protection.

In the case of In re: Complaint of Transocean Offshore (U.K.), Inc., 2001 WL

1490867 (E.D.La.), the plaintiffs sought damages against a vessel owner when an

anchor on a drilling rig was left hanging and drug the sea floor, damaging a pipeline.

The claimants did not have any ownership or proprietary interest in the pipeline that

was damaged, but sought damages in the form of lost product and delayed production.

The plaintiffs attempted to avoid the Robins rule by arguing that their situation fell

within an exception, specifically that they were exercising a public right granted to

them. In support of this argument they cited Shaughnessy. In finding Shaughnessy

inapplicable the Transocean court stated:

This Court however, is not persuaded by these cases, but rather
believes the situation presented herein is more analagous to the more
recent case, Reserve Mooring, Inc. v. American Commercial Barge
Lines, 1999 WL 1080317 (E.D.La.) reversed, 251 F.3d 1069 (5th
Cir.2001). In Reserve Mooring, the plaintiff operated a mooring facility
pursuant to a permit granted by the U.S. Army Corps of Engineers.

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While the accident did not cause any physical damage to the mooring
facility, the site had to be closed due to the salvage operations of the
sunken barge, which resulted in lost income. The District Court found
that while plaintiff did not own the mooring block, it did have a permit
to operate; therefore, it was held that plaintiff did possess a proprietary
interest and allowed recovery for economic damages. Id. The Fifth
Circuit, however, reversed that ruling stating that it “has not retreated
from TESTBANK’s physical injury requirement.” Reserve Mooring,
251 F.3d at 1071. The Court noted:

[m]erely because other vessels were unable to moor at
Reserve’s facility for a period of time, however, does not
mean that Reserve has suffered physical injury entitling it
to recover purely economic losses.

Id. As such, it was held that under Testbank, physical injury to a
proprietary interest is a prerequisite to recovery of economic damages in
cases of unintentional maritime tort; thus, the claim for purely economic
damages was denied. Id.

We find Transocean and Reserve Mooring more analogous to the instant case and

likewise find no reason to depart from the well-settled holdings of Robins and

Testbank.

The claims of CITGO and Conoco under state law are based on the existence

of a legal servitude created by La.Civ.Code art. 665, which states:

Servitudes imposed for the public or common utility, relate to the space
which is to be left for the public use by the adjacent proprietors on the
shores of navigable rivers, and for the making and repairing of levies,
roads, and other public or common works.

CITGO and Conoco also assert a cause of action arising from the duties imposed on

property owners by La.Civ.Code art. 667, which reads in pertinent part:

Although a proprietor may do with his estate whatever he pleases, still
he cannot make any work on it, which may deprive his neighbor of the
liberty of enjoying his own, or which may be the cause of any damage
to him. However, if the work he makes on his estate deprives his
neighbor of enjoyment or causes damage to him, he is answerable for
damages only upon a showing that he knew or, in the exercise of
reasonable care, should have known that his works would cause damage,

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that the damage could have been prevented by the exercise of reasonable
care, and that he failed to exercise such reasonable care. . . .

The law only prevents riparian owners from placing improvements on its land if the

placement of the improvements obstructs the navigable stream. Lake Providence Port

Commission v. Bunge Corporation, 193 So.2d 363 (La.App. 2 Cir.), writ denied, 195

So.2d 147 (La. 1966). It is not alleged that any works or improvements made on

Halter’s property obstructed the river. Rather, it is alleged that it was Halter’s use of

a movable, the drydock, which caused the obstruction, and the obstruction was

occasioned by Halter’s failure to maintain the drydock. CITGO and Conoco argue

that Halter’s act of moving the drydock to the center of the river in order to repair a

vessel is a violation of a servitude rather than an act of negligence. This interpretation

of a servitude statute is not favored by the courts. In Meyers v. Denton, 99-574

(La.App. 3 Cir. 10/6/99), 747 So.2d 633, 638, writ denied, (La. 2/18/00), 754 So.2d

974, we stated as follows:

In Warner v. Clarke, 232 So.2d 99, 102 (La.App. 2 Cir.), writ
denied, 255 La. 918, 233 So.2d 565 (1970) that court stated:

Our courts have repeatedly held that the riparian servitudes
are not subject to a broad and liberal construction, as
contended by the plaintiffs, but exist “only for that which
is incident to the nature and the navigable character of the
stream washing the land of such proprietor.” Herbert
[Hebert] v. T.L. James & Company, Inc. et al., 224 La. 498,
70 So.2d 102, 106 (1953), quoting from Carollton
[Carrollton] R. Company v. Winthrop, 5 La.Ann. 36
(1850); Lake Providence Port Commission v. Bunge
Corporation, [(]La.App. [2 Cir. 11/29/66)], 193 So.2d 363.

Thus, construing the above law, riparian servitudes, being in
derogation of private property rights, must be strictly construed in
accordance with the law and not given a broad, liberal interpretation.
Warner, 232 So.2d 99.

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We find the articles on servitudes and neighboring estates do not create a separate

right of action that is not subject to the rule established in Robins and Testbank.

Intentional Tort/Ultra-hazardous Activity.

CITGO and Conoco argue even were maritime law to apply here, they are not

prevented by Robins and Testbank from proceeding against Halter. They contend at

the very least they are entitled to a trial on the issues of whether Halter committed an

intentional tort or was engaged in ultra-hazardous activity. Testbank specifically

noted it did “not address intentional tort or ultra-hazardous activity.” Testbank, 752

F.2d at 1023.6

The Louisiana Supreme Court has concluded a party has committed an

intentional act only when one of two things is true: (1) the actor “consciously desires

the physical result of his act, whatever the likelihood of that result happening from his

conduct”; or (2) the actor “knows that the result is substantially certain to follow from

his conduct, whatever his desire may be as to that result.” Cole v. Department of

Public Safety & Corrections, 01-2123, p. 30-31 (La.9/4/02), 825 So.2d 1134, 1140.

It is well established that “mere knowledge and appreciation of a risk does not

constitute intent.” Reeves v. Structural Preservation Systems, 98-1795, p. 9-10

(La.3/12/99), 731 So.2d 208, 213. Even gross negligence does not meet the

intentional act requirement. See In re Hunter, 02-1975 (La.8/19/02), 823 So.2d 325.

While Halter’s decision to sink the drydock, which obviously was in poor condition,

might constitute gross negligence, the record simply does not show that it constituted

6
Commission of an intentional tort or being engaged in ultra-hazardous activity
are expressly excluded from the proprietary or physical injury requirement set forth
in Robins/Testbank.
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an intentional tort.

Ultra-hazardous activities are determined as a matter of policy, after a balancing

of claims and interests, a weighing of the risk and the gravity of harm, and the

consideration of the individual and societal rights and obligations. Kent v. Gulf States

Utilities Co., 418 So.2d 493 (La.1982); Langlois v. Allied Chemical Corporation, 258

La. 1067, 249 So.2d 133 (1971). Such activities have included pile driving, storage

of toxic gas, blasting with explosives, and crop dusting with airplanes. Id.

The courts of this state have generally adopted a three-prong test for the

determination of the existence of an ultra-hazardous activity. Bartlett v.

Browning-Ferris Industries, Chemical Services, Inc., 96-218 (La.App. 3 Cir. 11/6/96),

683 So.2d 1319. The court described the test in Burton v. Conoco Offshore, Inc.,

93-599, p. 4-5 (La.App. 5 Cir. 2/9/94), 631 So.2d 1374, 1377, as follows:

Our brothers of the First Circuit implemented the United States Fifth
Circuit three-prong test in determining whether an activity is
ultrahazardous, to-wit: “(1) the activity must relate to land or some other
immovable; (2) the activity itself must cause the injury, and the
defendant must be engaged directly in the injury-producing activity; and
(3) the activity must not require substandard conduct to cause injury.”
Triplette v. Exxon Corp., supra, [554 So.2d 1361] at 1362 [La.App. 1st
Cir.1989] (citing Perkins v. F.I.E. Corp., 762 F.2d 1250, 1267-68 ([5th
Cir.]1985)).

The record here contains no evidence that the third prong is satisfied in this matter.

There is no indication a drydock cannot be safely operated if due care is exercised.

In fact, it is apparent that the use for which Halter relied on the drydock is a common

practice, and if in proper condition would not cause harm to the residents of the area

in which it is situated. Therefore, the evidence does not support a finding that

operation of the drydock was an ultra-hazardous activity. Accordingly, we find no

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error in the district court’s grant of the exception of no cause of action.

Failure to Consider Evidence

Conoco asserts that the district court erred in failing to consider the affidavit

and report of Ian Cairns, a marine surveyor. The trial court limited Cairns’ expert

testimony to that which he personally observed. The excluded evidence is relied upon

by Conoco to establish that the fault of Halter constituted ultrahazardous and/or

intentional activity.

Conoco relies on the Louisiana Supreme Court’s decision in Independent Fire

Insurance Co. v. Sunbeam Corp., (La. 2/29/00), 755 So.2d 226, in support of its

argument that the affidavit and report should have been admitted by the district court.

La.Code Civ.P. art. 967 requires that affidavits “shall be made on personal

knowledge. . .” That article does not require trial courts to accept conclusory

assertions by an expert witness. The court in Independent Fire cited with approval

Hayes v. Douglas Dynamics, Inc., 8 F.3d 88 (1st Cir. 1993), cert. denied, 511 U.S.

1126, 114 S.Ct. 2133 (1994), which noted that “where an expert presents ‘nothing but

conclusions - no facts, no hint of an inferential process, no discussion of hypotheses

considered or rejected,’ such testimony will be insufficient to defeat a motion for

summary judgment.” Independent Fire, 755 So.2d at 233. We find no error on the

trial court’s part in excluding this evidence.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed. All

costs of this appeal are assessed equally to the appellants, CITGO Petroleum

Corporation and ConocoPhillips, Inc.

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AFFIRMED.

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