Lloyd Dwayne Reeves v. Environmental Response Services, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-318

LLOYD DWAYNE REEVES, ET AL.

VERSUS

ENVIRONMENTAL RESPONSE SERVICES, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2009-4888
HONORABLE RONALD F. WARE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Phyllis M. Keaty, Judges.

AFFIRMED.

Kenneth Michael Wright
203 West Clarence Street
Lake Charles, LA 70601
(337) 439-6930
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Lloyd Dwayne Reeves
Ross Stevens

Thomas J. Gayle
Gayle Law Firm
Post Office Box 3190
Lake Charles, LA 70602
(337) 494-1220
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Lloyd Dwayne Reeves
Ross Stevens

Robert A. Mahtook, Jr.
Mahtook & LaFleur, L.L.C.
Post Office Box 3605
Lafayette, LA 70502-3605
(337) 266-2189
COUNSEL FOR DEFENDANT/APPELLEE:
Environmental Response Services, Inc.

AMY, Judge.

The plaintiffs in this class action filed suit, alleging that they had suffered

personal injuries and property damage as a result of driving through used motor oil

which was accidentally released onto Louisiana Highway 27 by the defendant. After

a hearing, the trial court denied the plaintiffs‟ motion for class certification, finding

that the plaintiffs had not satisfied the numerosity requirement. The plaintiffs appeal.

For the following reasons, we affirm.

Factual and Procedural Background

According to the record, on May 15, 2009, a vacuum truck owned and operated

by the defendant, Environmental Response Services, Inc., was traveling between

Singer and DeQuincy on Louisiana Highway 27. After a valve malfunctioned, the

vacuum truck spilled, according to the police report, between three hundred and five

hundred gallons of used motor oil along a stretch of Highway 27. When the vacuum

truck entered DeQuincy, a law enforcement officer noticed the leak and pulled the

truck over. The record indicates that a portion of Highway 27 was closed within

fifteen minutes after the vacuum truck was stopped. The defendant, along with the

DeQuincy Fire Department, cleaned up the spill in DeQuincy, and a Louisiana

Department of Transportation and Development (DOTD) road crew spread sand over

five miles of Highway 27.

This action was brought by the putative class representatives, Lloyd Dwayne

Reeves and Ross Stevens, seeking to represent all persons who drove on Highway 27,

were exposed to the spill, and suffered either property damage or bodily injury as a

result. Mr. Reeves and Mr. Stevens alleged that they had suffered damages as a result

of driving through the spilled motor oil. Specifically, they contend that they

experienced headaches and/or nausea due to inhalation exposure and that their

vehicles and livestock were contaminated as a result of the oil.

The plaintiffs subsequently filed a motion for class certification and discovery

was conducted. At the hearing on the motion for class certification, the defendant

argued that the narrow window of time between the beginning of the spill and when

the authorities closed the highway, as well as clean-up efforts by DOTD and the

defendant, indicated that it was unlikely that there would be a sufficiently large group

of potential claimants to satisfy the numerosity requirement of La.Code Civ.P. art.

591. After considering the evidence, the trial court found that there was not sufficient

numerosity to warrant certifying this suit as a class action and denied the plaintiffs‟

motion for class certification.

The plaintiffs appeal, asserting that the trial court “erred in failing to certify the

proposed class action based on the evidence presented at the certification hearing.”

Discussion

Standard of Review

When reviewing a trial court‟s ruling on a motion for class certification, the

appellate court should review the trial court‟s findings of fact under the manifest error

standard of review. Brooks v. Union Pac. R.R. Co., 08-2035 (La. 5/22/09), 13 So.3d

546. However, the trial court‟s ultimate determination of whether or not to certify the

class is subject to the abuse of discretion standard of review. Id.1

Certification of Class Actions

The intent of the class action is “to adjudicate and obtain res judicata effect on

1
We note that the plaintiffs contend that the trial court made no findings of fact and that this court
should therefore review the trial court‟s ruling on class certification under the de novo standard. In
support of this contention, they point to Fogleman v. Meaux Surface Protection, Inc., 10-1210
(La.App. 3 Cir. 3/9/11), 58 So.3d 1057, writ denied, 11-712 (La. 5/27/11), 63 So.3d 995. However,
Fogleman concerns the review of exceptions of res judicata where the trial court did not receive
evidence from both parties. Id. Even assuming that the trial court in this case made no factual
findings, we find no merit in the plaintiffs‟ contention. As the Fogleman court correctly points out,
the res judicata effect of a prior judgment is a question of law which is subject to the de novo
standard of review. Id. That is not the case with rulings on class certification, which are subject to
the abuse of discretion standard of review. Brooks, 13 So.3d 546. See also Husband v. Tenet Health
Systems Mem’l Med. Ctr., Inc., 08-1527 (La.App. 4 Cir. 8/12/09), 16 So.3d 1220, writ denied, 09-
2163 (La. 12/18/09), 23 So.3d 949.

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all common issues applicable not only to persons who bring the action, but also to all

others who are „similarly situated.‟” Dupree v. Lafayette Ins. Co., 09-2602, p. 6 (La.

11/30/10), 51 So.3d 673, 679 (quoting Brooks, 13 So.3d at 554). The requirements

for certification of a class action are found in La.Code Civ.P. art. 591. Accordingly,

the proposed class action must meet all of the requirements of Article 591(A), which

states:

(1) The class is so numerous that joinder of all members is
impracticable.

(2) There are questions of law or fact common to the class.

(3) The claims or defenses of the representative parties are typical
of the claims or defenses of the class.

(4) The representative parties will fairly and adequately protect the
interests of the class.

(5) The class is or may be defined objectively in terms of
ascertainable criteria, such that the court may determine the constituency
of the class for purposes of the conclusiveness of any judgment that may
be rendered in the case.

Further, the proposed class action must meet at least one of the requirements of

Article 591(B), which states, as relevant herein:

(3) The court finds that the questions of law or fact common to the
members of the class predominate over any questions affecting only
individual members, and that a class action is superior to other available
methods for the fair and efficient adjudication of the controversy. The
matters pertinent to these findings include:

(a) The interest of the members of the class in individually
controlling the prosecution or defense of separate actions;

(b) The extent and nature of any litigation concerning the
controversy already commenced by or against members of the class;

(c) The desirability or undesirability of concentrating the litigation
in the particular forum;

(d) The difficulties likely to be encountered in the management of
a class action;

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(e) The practical ability of individual class members to pursue their
claims without class certification;

(f) The extent to which the relief plausibly demanded on behalf of
or against the class, including the vindication of such public policies or
legal rights as may be implicated, justifies the costs and burdens of class
litigation[.]

The party seeking class certification is responsible for demonstrating that the

requirements of La.Code Civ.P. art. 591 have been met. Price v. Martin, 11-853 (La.

12/6/11), 79 So.3d 960. Generally, the court should err on the side of granting class

certification, because the class is always subject to modification or decertification. Id.

However, “that general rule cannot and should not be used as a substitute for the

rigorous analysis required to determine whether the prerequisites of Louisiana‟s class

action provisions have in fact been satisfied.” Id. at 967.

Numerosity Requirement

At the hearing on the motion for class certification, the trial court expressed

concern that the plaintiffs had not met the numerosity requirement of La.Code Civ.P.

art. 591(A)(1). The transcript of the hearing indicates that the trial court heard

extensive argument on that issue from counsel. Ultimately, the trial court declined to

certify the class, stating:

I‟m not going to certify this class based on the numerosity
questions that I have and the nature of the claims. . . . .

And it just comes down to I just -- I‟m not convinced that there‟s
sufficient numerosity that would make it impractical for persons who
have a legitimate claim to pursue their claims individually or by way of
some form of joinder, but not by a class action.

....

. . . . I just don‟t think there are enough claims here to satisfy the
numerosity element. And I‟m not going to certify the class.

In order to proceed as a class action, the parties seeking class certification must

prove that “[t]he class is so numerous that joinder of all members is impracticable.”

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La.Code Civ.P. art. 591(A)(1). In Mathews v. Hixson Bros., Inc., 02-124, p. 6

(La.App. 3 Cir. 7/31/02), 831 So.2d 995, 1000, writs denied, 02-2286, 02-2305 (La.

12/13/02), 831 So.2d 984, a panel of this court discussed the numerosity requirement,

stating:

Generally, a class action is appropriate when the interested parties appear
to be so numerous that separate suits would unduly burden the courts.
Cotton v. Gaylord Container, 96-1958 (La.App. 1 Cir. 3/27/97); 691
So.2d 760, writs denied, 97-800, 97-830 (La. 4/8/97); 693 So.2d 147.
“Numerosity is not shown by mere allegations of a large number of
potential claimants. The burden is on the plaintiff-mover to make a
prima facie showing that a definable group of aggrieved persons exist[s],
and that the class is so numerous that joinder is impractical. Conclusory
allegations are not sufficient.” Johnson, 790 So.2d at 741. However,
“no set number of plaintiffs is required in order to fulfill this requirement.
In fact, difficulty in identifying the claimants is one of the factors that
make joinder impracticable and a class action appropriate.” Id. (citing
Dumas v. Angus Chemical Co., 25,632 (La.App. 2 Cir. 3/30/94); 635
So.2d 446, writ denied, 94-1120 (La. 6/24/94); 640 So.2d 1394).

At the hearing on class certification, the plaintiffs contended that the length of

the spill was between five and fifteen miles. In support of this, they tendered the

deposition testimony of Mr. Reeves that he drove through the oil for fourteen or

fifteen miles before being diverted by law enforcement. They additionally point to

variations in the length of the spill from five to fifteen miles in reports from the

Louisiana State Police (LSP) and the Louisiana Department of Environmental Quality

(DEQ), and a letter from the defendant to DEQ concerning cleanup of the spill. The

plaintiffs also submitted into evidence the annual average daily traffic count between

DeQuincy and Singer, as measured by DOTD. For 2007 and 2010, those numbers

were 5,052 and 5,330.

Noting that DOTD only applied sand to five miles of the alleged fifteen miles

of spill on Highway 27, the plaintiffs contend that between two hundred and three

hundred people traveled the affected area before the spill was remediated. Further,

the plaintiffs argue that, even after the spill was remediated, several thousand people

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could have been exposed to the spilled motor oil in any area of the spill that may not

have been cleaned. Plaintiffs‟ counsel also represented that he knew of at least four

other potential claimants.

In rebuttal, the defendant contends that the objective reports filed by LSP and

DEQ are more reliable concerning the length of the spill than the testimony of the

plaintiffs. In particular, the defendant points to the LSP report stating that “DOTD

has applied sand and absorbent to the length of the spill which is LA 27 from

Dequincy extending five miles north of Dequincy[.]” The defendant also notes that a

majority of the used motor oil was spilled at the intersection where the vacuum truck

was stopped by law enforcement. Additionally, the defendant contests the plaintiffs‟

argument that numerous potential claimants could have driven over the spilled motor

oil, observing that the affected portion of Highway 27 was shut down within fourteen

minutes after discovery of the leak.

Having been presented with two competing theories of the evidence, the trial

court necessarily had to make a finding concerning the number of potential claimants.

The trial court accepted the defendant‟s argument, noting that it was unlikely that

there would be a large number of potential claimants given the short period of time

between the occurrence of the leak and the shutdown of the highway. The trial court

also observed that it was possible for the potential claimants “to pursue their claims

individually or by way of some form of joinder.” Given the evidence in the record,

we find no error in the trial court‟s finding that the plaintiffs did not satisfy the

numerosity requirement of La.Code Civ.P. art. 591(A)(1).

We also observe that the plaintiffs complain that the trial court inappropriately

determined that the damages in this case were not large enough to warrant a class

action. The plaintiffs correctly note that modest damage claims can weigh in favor of

the certification of the class. See Doerr v. Mobil Oil Corp., 01-775 (La.App. 4 Cir.
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2/27/02), 811 So.2d 1135, writs denied, 02-920, 02-938 (La. 5/31/02), 815 So.2d 105,

106. The record indicates that the trial court stated that it was appropriate to consider

damages for the purposes of determining numerosity and expressed concerns that he

was unsure how the plaintiffs would prove their decontamination claims more than

two years after the event. The trial court also acknowledged that modest claims might

affect whether potential claimants have “the means or desire or the motivation or the

ability to prosecute” those claims.

In making a decision concerning class certification, the trial court may not

review the claims in the case for substantive merit. Duhe v. Texaco, Inc., 99-2002

(La.App. 3 Cir. 2/7/01), 779 So.2d 1070, writ denied, 01-637 (La. 4/27/01), 791 So.2d

637.2 However, the party seeking class certification must do more than merely allege

that a large number of claimants exists. Id. We find nothing inappropriate in the trial

court‟s comments concerning the amount of the plaintiffs‟ potential damages. A

multitude of small claims can weigh in favor of the party seeking class certification,

specifically with regard to the impracticability component of the numerosity

requirement and the “practical ability of individual class members to pursue their

claims without class certification” factor of La.Code Civ.P. art. 591(B)(3)(e). See

Doerr, 811 So.2d 1135. Further, given the trial court‟s conclusion that there was an

insufficient number of claims to satisfy the numerosity element of Article 591(A)(1),

the trial court‟s concerns about the plaintiffs‟ ability to prove their damages amounts

to harmless error, at most. “A court is prohibited from reversing a harmless error.”

2
The defendant points this court to Hampton v. Illinois Cent. R.R. Co., 98-430 to 98-435
(La.App. 1 Cir. 4/1/99), 730 So.2d 1091, for the proposition that the trial court may examine
whether there is a causal link between the alleged wrongdoing and damages. See also Boyd v. Allied
Signal, Inc., 03-1840 to 03-1843 (La.App. 1 Cir. 12/30/04), 898 So.2d 450, writ denied, 05-191 (La.
4/1/05), 897 So.2d 606. However, in Rapp v. Iberia Parish Sch. Bd., 05-833 (La.App. 3 Cir. 3/1/06),
926 So.2d 30, writ denied, 06-1331 (La. 9/22/06), 937 So.2d 386 and West v. G & H Seed Co., 01-
1453 (La.App. 3 Cir. 8/28/02), 832 So.2d 274, this court has expressed serious reservations about
first circuit‟s interpretation of La.Code Civ.P. art. 591 to include a “so-called plausibility
requirement.” Rapp, 926 So.2d at 35.
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Reider v. State ex rel. La. Bd. Of Trustees for State Colls. & Univs. ex rel. McNeese

State Univ., 04-1403, pp. 9-10 (La.App. 3 Cir. 3/9/05), 897 So.2d 893, 899 (quoting

Preatto v. Tidewater Marine, Inc., 00-624, p. 11 (La.App. 4 Cir. 2/6/02), 809 So.2d

1084, 1091, writ denied, 02-678 (La. 5/3/02), 815 So.2d 822), writ denied, 05-938

(La. 5/20/05), 902 So.2d 1056.

Accordingly, the plaintiffs failed to prove one of the requirements of Article

591(A)(1), and we find no abuse of discretion in the trial court‟s ruling denying the

motion for class certification.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court. Costs of

this appeal are allocated to the plaintiffs, Lloyd Dwayne Reeves and Ross Stevens.

AFFIRMED.

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