Justiss Oil Company, Inc. v. Oil Country Tubular Corporation

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-1148

JUSTISS OIL COMPANY, INC.

VERSUS

OIL COUNTRY TUBULAR CORPORATION, ET AL

**********
APPEAL FROM THE
THIRTYSIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, DOCKET NO. 09-1338 A
HONORABLE MARTHA ANN O’NEAL, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Judges Sylvia R. Cooks, John D. Saunders, Elizabeth A.
Pickett, John E. Conery and Kent D.Savoie.

AFFIRMED IN PART, REVERSED IN PART, RENDERED.

Conery, J. concurs in the result. Savoie, J., concurs in part, dissents in

part with written reasons.

Robert E. Kerrigan
Isaac H. Ryan
Deutsch Kerrigan L.L.P.
725 Magazine Street
New Orleans, LA 70130
(504) 581-5141

Douglas K. Williams
Breazeale, Sachse & Wilson, L.L.P.
P.O. Box 3197
Baton Rouge, LA 70821-3197
(504) 619-1800

ATTORNEYS FOR DEFENDANT/APPELLANT
Oil Country Tubular Corporation and North American Interpipe, Inc.

Jimmy R. Faircloth, Jr.
Barbara B. Melton
Christie C. Wood
Brook L. Villa
Faircloth, Melton & Sobel, L.L.C.
105 Yorktown Drive
Alexandria, LA 71303
(318) 619-7755

and

Donald R. Wilson
R. Joseph Wilson
Wilson & Wilson
P.O. Box 1346
Jena, LA 71342
(318) 992-2104

ATTORNEYS FOR PLAINTIFF/APPELLEE
Justiss Oil Company, Inc.

2

Cooks, Judge
FACTS AND PROCEDURAL HISTORY

Justiss Oil Company, Inc. (Justiss) (Plaintiff) and MidStates Petroleum

Company, L.L.C. (MidStates) entered into an International Association of Drilling

Contractors Model Turnkey Drilling Contract1 for an oil well2 in Beauregard

Parish, Louisiana for the sum of $2,836,733.00. The contract specified the 15,000

foot deep well would have a bore hole lined with a 7 5/8 inch pipe casing to a depth

of 12,500 feet. The remaining 2,500 feet would be drilled without casing (referred

to in the industry as “open hole”). Drilling pipe reaching a bottom hole diameter

of 6 ½ inches would be run inside the intermediate casing down to 12,500 feet. In

preparation for drilling the well, Justiss purchased 12,500 feet of intermediate

casing pipe from Oil Country Tubular Co. (Oil Country)(Defendant). The

intermediate casing was manufactured by North American Interpipe, Inc.

(NAI)(Defendant). Justiss purchased what is commonly referred to in the industry

as “buttress thread” casing pipe with a burst pressure rating of 12,600 pounds per

square inch (“psi”).3 Oil Country did not have enough LTC pipe on hand to string

the entire depth needed but could provide Justiss with enough buttress thread

casing pipe to complete its drilling project. Justiss preferred to use the same type

of pipe for the entire string of casing to the 12,500 foot depth required and

1
In the oil drilling industry a “turnkey contract” is defined as “On a ‘turnkey basis, the parties
agree on a fixed sum of money that will be paid to the drilling contractor in return for his
furnishing a drilling crew, drilling equipment and certain specified materials and services, to be
due and payable only after the hole is drilled to contract depth . . . Manual of Oil & Gas Terms
(6th Ed.), Williams and Myers, (Matthew Bender, 1984), p. 926.
2
The proposed well was identified as “Musser-Davis 34-1 well.”
3
There are two types of casing pipe, buttress thread and LTC or “eight round,” and each are
distinguished by the threading on the end of the pipe. LTC has small threads, eight to an inch,
each thread tapering to a point. Buttress thread has heavier or thicker threads, five to an inch,
each one squared off instead of tapered.

therefore opted to purchase the buttress thread casing pipe. Oil Country

represented to Justiss the intermediate casing pipe was “API certified pipe,”

meaning it met the standards required by the American Petroleum Institute for

casing and tubing pipe to be used in oil drilling operations. Oil Country’s owner,

Mr. J.C. Gallet, represented to Justiss that this buttress thread pipe was fit for the

use intended by Justiss as intermediate casing pipe. The pipe was rated as API

5CT, meaning the pipe would hold at least 10,000 psi for 5 seconds and has a burst

pressure of 12,600 psi. North American stated in its invoices the pipe was certified

API 5CT and provided mill certificates certifying each joint of pipe.

Both Justiss’ and Defendants’ experts agreed that this type of buttress thread

pipe was appropriate for use as intermediate casing in the proposed Musser-Davis

34-1 well. Dr. Robert W. Nicholson, Phd. (Nicholson) was accepted as an expert

witness in petroleum engineering with emphasis on design, planning and on-site

management of drilling operations. He testified buttress thread pipe was

developed in the 1950’s as a more robust drilling pipe than the eight-round thread.

According to this expert, buttress thread pipe has two important advantages,

greater tensile strength and a higher collapse rating. He explained that with

improved technology wells could be set at deeper depths. But to reach these

depths safely, a pipe with greater tensile rating and greater collapse rating was

needed. Buttress thread pipe was developed for these purposes and according to

his testimony has proven to be “extremely useful” for deeper drilling. He further

testified the API 5CT specification for buttress thread pipe is “very precise” as to

how the threads are to be cut in order for the pipe to have the appropriate tensile

strength and collapse rating. According to his expert testimony, if the threads are

not manufactured properly the pipe can leak and/or it can pull apart. He also

2

testified the pipe purchased by Justiss was certified as API 5CT, which certifies to

a purchaser that the pipe “has been manufactured, sampled, tested, and inspected in

accordance with API 5CT.” This informs the purchaser that this pipe has a

particular burst rating, a certain tensile strength, a certain collapse rating, and a

particular chemical composition indicating its strength and suitability for drilling a

deep well like Musser-Davis 34-1. When experts tested a sampling of pipes from

the same batch of pipe purchased by Justiss they found an abnormally high percent

of the pipe was defective. In their opinion these defective pipes would leak and

would not hold pressure to the certified level. Of the fourteen hundred fifty-seven

joints of pipe tested two hundred two were rejected. Their finding showed almost

fourteen percent of the batch tested was rejected as defective as opposed to the

normal industry rate of two percent.

Justiss began its drilling operation for Musser-Davis 34-1 by drilling a hole

in which it inserted a 10 7/8 inch surface casing pipe which commenced at the

earthen surface of the proposed well down to a depth of 3400 feet. Next, the driller

hired by Justiss began drilling a 12,500 foot bore hole which would accommodate

the 7 5/8 inch intermediate casing pipe. Upon reaching a depth of 12,269 feet,

Justiss inserted the intermediate casing pipe and then cemented the intermediate

casing into the hole according to its normal operating procedures. At this time

Justiss was not aware of defects in the intermediate casing pipe. While cementing

the intermediate casing in the hole, Justiss repaired a hole in the surface casing so

as to avoid any possibility of contaminating ground water by leakage of drilling

fluid from such a hole in the surface casing. This was accomplished by inserting a

diverter tool which diverted cement upward between the surface casing and

intermediate casing which both filled the hole in the surface casing and added

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stability. Defendant’s expert agreed that once casing is cemented in the hole it

cannot be removed.

In accordance with its planned procedures for drilling Musser-Davis 34-1,

Justiss initiated pressure tests on the intermediate casing. The casing pipe has a

burst pressure of 12,600 psi, meaning if it exceeds that pressure during drilling

operations it will fail, creating a dangerous situation for workers and the well. The

hydrostatic columns of drilling mud in the casing needed to safely drill this well

created about 9,000 psi of pressure. Because the casing pipe could not hold

sufficient pressure above this requirement the driller attempted to proceed using a

lighter weight drilling mud hoping the combined lower pressure in the pipe would

keep it from bursting or pulling apart. Using the lighter drilling mud posed risks

in controlling the well and avoiding a blowout because upward pressure from salt

water continually increases as drilling reaches ever deeper depths. Justiss

proceeded with caution attempting to safely make use of the defective pipe.

Justiss’ five week effort to work around the defective pipe proved to be of no avail,

and when conditions became too dangerous to continue, Justiss capped the well to

safeguard its workers and the environment.

During the drilling operations, after the intermediate casing pipe was

cemented in the hole it failed to hold pressure to the certified level. Justiss tested

the casing to determine if it would test to 2,500 psi above the drilling mud pressure

for a total pressure of 11,500 psi, leaving a margin of error of 1,100 psi before the

pipe would fail. During this testing the pipe would not hold pressure above 1,020

psi. Under its turnkey contract with MidStates, Justiss was not compensated for

this effort in failing to drill Musser-Davis 34-1 resulting in financial losses. Justiss

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sued the manufacturer of the pipe, NAI, and Oil Country, from whom it purchased

the pipe, for redhibition of the sale and damages.

The jury returned its verdict through responses to a special verdict form. It

determined that Justiss proved by “a preponderance of the evidence that the [pipe]

was defective.” This finding of fact was not appealed by Defendants. Having

answered this question in the affirmative, the jury proceeded as instructed to the

next interrogatory indicating it found “by a preponderance of the evidence that the

defendants are liable in a claim of redhibition to Justiss Oil Company[.]” Despite

these determinations the jury did not then determine the statutory damages due

Justiss as a result of the redhibitory defect in the casing pipe. Instead, as instructed

by the jury form, the jury proceeded to question number three finding the

redhibitory defect in the casing pipe did not “proximately cause any damages

sustained by Justiss Oil Company at the Musser-Davis 34-1 well[.]” Proceeding

on to question four, the jury found “Justiss Oil Company’s negligence proximately

contribute[d] to its own damages sustained at the Musser-Davis 34-1 well[.]”

Having made this finding, the jury then assigned ten per cent (10%) fault to Oil

Country and ninety per cent (90%) fault to Justiss. Finally, the jury awarded

$250,000 in damages as fair and reasonable compensation to Justiss. This sum was

reduced by the 90% fault assigned to Justiss by the jury. In its reason for judgment

the trial court found the jury form was “confusing and resulted in a contradictory

and nonsensical verdict.”

Justiss filed a Motion for Judgment Notwithstanding the Verdict (JNOV)

which was granted by the trial court. Defendants also filed a Motion for JNOV

which was subsequently withdrawn, and both parties represented to the trial court a

new trial would not be in any party’s best interest. The trial court set aside the

5

judgment rendered in accord with the jury findings and entered a new judgment in

favor of Justiss. The trial court found Defendants liable in solido, and awarded

Justiss the return of the purchase price, $391,050.20; the costs of repair,

$1,165,450.43, which included Justiss’ expenditures over a period of five weeks

incurred while attempting to remedy the problem caused by the defective pipe;

plus interest and court costs. The trial court also awarded additional consequential

damages totaling $2,836,733.00, which sum represented Justiss’ loss of profit

incurred as a result of the inability to complete the turnkey project. The trial judge

then reduced the award for consequential damages by 90% based on the jury’s

allocation of fault. After further briefing and oral argument the trial court

additionally awarded Justiss expert witness fees totaling $56,281.94; special costs

in the amount of $21,818.42; and attorney fees and expenses totaling $208,337.00

plus all court costs.

Defendants appealed the trial court judgment. Justiss answered the appeal

asserting the trial court erred in applying comparative fault to reduce the award of

consequential damages against the manufacturer and seller in redhibition. Justiss

seeks an award for the full amount of consequential damages without reduction,

and seeks an award of attorneys’ fees for this appeal. Initially, Justiss asserted that

in all other respects the JNOV is correct. However, it filed a supplemental brief on

appeal in which it acknowledges an error in calculation of the damages awarded by

the trial court which would improperly result in a double recovery of the purchase

price of the defective pipe. The trial court awarded as damages the return of the

purchase price and also awarded as consequential damages the lost profits which it

found to be equal to the total contract price. The total contract price includes the

purchase price of the defective pipe, thus resulting in double recovery of the

6

purchase price. Justiss acknowledges that Defendants are correct in pointing out

this error to this court and therefore amends its request for relief to correct this

error in the trial court’s award.

LEGAL ANALYSIS

Oil Country and NAI (Defendants) assert five assignments of error:

1. The district court failed to properly instruct the jury to cease
deliberation after they determined that defects in the casing were
not the proximate cause of damages to Justiss.

2. The district court failed to give any effect to the jury’s verdict that
the NAI casing was not the proximate cause of Justiss’ damages.

3. The district court erred in granting a JNOV on the amount of
damages.

4. The district court erred in failing to reduce [all of] Justiss’ damages
by the 90% fault found by the jury.

5. The district court erred in awarding attorney’s fees to Justiss.

Causation

Plaintiff and Defendants present opposing theories as to which body of law

should apply in determining damages here—contract or tort. Defendants assert,

and the trial court found, that Louisiana Civil Code Article 2323, comparative

fault, is applicable to contracts. As discussed later herein, we find it is only

applicable to torts. Under contract law, applicable in this case, “an obligor is liable

for the damages caused by his failure to perform a conventional obligation.” La.

Civ.Code art. 1994. The obligor’s damages “are limited to only those damages

‘caused by’ the redhibitory defect, and not those damages attributable to other

causes. [Id.]” As the federal court explained in Hollybrook Cottonseed Processing

v. Carver, Inc., 2011 WL. 2214936, p. 3 (W.D. La. 6/6/11):

7

[W]hile comparative fault is inapplicable to Plaintiff’s
redhibition claim, failure to mitigate and questions of causation
remain and may serve to limit the extent of damages attributable to
any redhibitory defect and therefore recoverable by the Plaintiff.

Before we discuss the inapplicability of La. Civ.Code art. 2323 to contracts

we must decide whether the trial judge erred in granting the JNOV reversing the

jury’s factual finding that the defective pipe was not the proximate cause of

Plaintiff’s damages. The trial court did not disturb the jury’s factual findings

regarding the existence of a redhibitory defect, and our review of the record

supports that finding which we will address later.

Defendants complain that the trial judge erred in granting the JNOV because

the jury correctly found Plaintiff failed to prove the defective intermediate pipe

was a proximate cause of the loss sustained for several reasons. First, Defendants

assert the intermediate pipe had a hole, Plaintiff put the hole in the pipe, this hole

at the top was the problem as it made it impossible to remove the pipe and thereby

afford defendants an opportunity to exchange the defective pipe. This, says

Defendants, was the sole cause precipitated entirely from Plaintiff’s conduct.

Second, Defendants assert the well was a dry hole after all and any failure on its

part did not play a role in Plaintiff’s loss. Third, Defendants suggest Justiss was

solely at fault because it used the wrong type of pipe.

We find the trial judge did not manifestly err in reversing the jury verdict,

finding it was internally inconsistent and evidenced the jury’s confusion. The trial

judge noted the verdict was inconsistent on its face because the jury found the

defective pipe was not the proximate cause of Plaintiff’s loss; yet also found Justiss

90% contributorily negligent and Defendants 10% negligent.

8

We agree with the trial judge’s factual findings on the issue of causation for

several reasons. First, the record evidence does not show the intermediate pipe had

a hole in it when placed in the bore hole. The evidence shows there was a hole in

the surface casing at the time it was placed in the bore hole. The evidence also

shows this hole in the surface casing had no effect on the problems presented by

the defective intermediate pipe. Additionally, the record evidence shows Plaintiff

was not wrong in cementing the surface pipe and intermediate pipe in the bore hole

which occurred before Plaintiff had any idea that the intermediate pipe was

defective. Second, the manufacturer cannot complain that Plaintiff’s decision,

though reasonable, denied it an opportunity to exchange the intermediate pipe

because the law does not afford that right to it. Only the seller has that right, but in

this case its argument fails too, because: 1) when the Plaintiff first realized the

intermediate pipe was defective the opportunity to pull the pipe had already

expired; and 2) in this case the seller has not appealed the trial court’s finding

holding it solidarily liable for the whole loss. We recognize that the obligation of a

good faith seller is different from that of a bad faith seller in redhibitory defect

cases, i.e., a good faith seller must be given the opportunity to replace the defective

pipe whenever possible and can only be cast in judgment for the return of the

purchase price and expenses. The law in addition affords a good faith seller a

cause of action against the manufacturer for all damages due to the purchaser. In

this case, although the seller filed a third party demand it is represented on appeal

by the same lawyers as the manufacturer; and, for whatever reason, the seller and

manufacturer decided to speak as one without assigning separate error. The seller

did not seek to advance on appeal other defenses or claims solely granted to it.

9

Third, the evidence, if presented at all, is wantonly deficient in proving an

alleged dry hole existed at the deeper depth. The only discussion in the record in

support of that notion is Defendants’ expert’s hypothesis and speculation, based

only on the amount of mud which began flowing at the time Plaintiff decided the

excessive flow indicated the situation had become too dangerous to continue with

the lighter weight mud especially considering it knew by that time the defective

pipe could not hold sufficient pressure. Defendants assert that Mr. J.F. Justiss, III

(Mr. Justiss) admitted the well could not be completed because of the alleged hole

at 13,569 feet. A review of Mr. Justiss’ testimony at trial makes a very different

showing. It is true he, too, engaged in supposition at his deposition to this effect,

but upon a thorough examination of the evidence including rig logs, on-site well

studies, and all available data, he reached a different conclusion at trial, as did Dr.

Nicholson, Plaintiff’s expert. Both Mr. Justiss and Dr. Nicholson explained at trial

why many in the industry would jump to this initial conclusion before reasoning

from the data—a jump viewed as reasonable by defendant’s expert Dr. Gary

Wooley, Phd. (Dr. Wooley). But Mr. Justiss and Dr. Nicholson presented data

gathered on the rig, which evidence is not disputed by defendants, to support their

in-court testimony that it was not a hole in the formation that caused them to shut

down the drilling operation. Dr. Nicholson explained that the evidence shows no

indication of such an alleged hole in the formation. He pointed out that the

evidence shows this was a “solid, competent” formation, so much so that the well

was perfectly vertical all the way down. They explained that: (1) the defective

pipe could not hold nearly enough pressure; (2) the pipe had been leaking at

multiple stages of drilling beginning at 3,500 feet; (3) the defective pipe made it

impossible to use a heavy enough drilling mud to safely proceed against increased

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pressures pushing upward at deeper depths; (4) they were unable to keep the leaks

plugged as they slowly pushed forward; and (5) persistent erosion of the metal pipe

by abrasives in the drilling mud as it leaked through the defective collars, all taken

together points to the reason for the sudden loss of mud when they reached 13,569

feet. Dr. Nicholson explained that because this was a solid vertical formation, and

because they were getting circulation at 13,569 feet, he concurred with the rig

man’s conclusion that the mud was escaping at about 8,000 feet where a serious

problem had previously occurred, which Justiss had tried to remedy. Under these

circumstances known to Justiss when it experienced the sudden increase of mud

loss it felt it was unsafe to attempt to proceed any further as all these factors too

strongly indicated they could not control a blowout. In Dr. Nicholson’s words

“they were losing control of the well.” At this point Justiss, having informed

defendants of the problems being caused by the defective pipe, offered them the

opportunity to continue to drill the well themselves and/or to come to the well site

and determine for themselves the cause of the excessive mud loss at 13,569 feet.

Both Defendants declined to do either despite the fact that Defendant NAI had

already hired Dr. Wooley as a consultant to address the situation. Dr. Wooley

admitted to knowing several techniques to investigate the cause of this problem but

he employed none of them. Instead, he faults Justiss for failing to do so. But the

burden to prove that some cause other than the defective pipe was the reason the

well could not be successfully completed was on Defendants and they utterly failed

to carry that burden. Rey v. Cuccia, 298 So.2d 840 (La. 1974) and Tucker v.

Petroleum Helicopters, 08-1019 (La.App. 4 Cir. 3/23/09), 9 So.3d 966, writ denied

09-901 (La. 6/19/09), 10 So.3d 736.

11

Plaintiff put forth convincing expert evidence and the testimony of lay

witnesses directly involved with drilling the well, who presented facts establishing

the failure of the intermediate pipe evidenced by the inability of the pipe to hold

sufficient pressure, and evidenced by the loss of drilling mud at depths well above

the depth at which the increased loss of mud occurred. Plaintiff’s evidence left no

doubt that the pipe was defective and Defendants do not assert that the pipe was

not defective.

Fourth, there is no basis in the record for the jury award of $250,000. The

trial judge challenged Defendants to provide a basis for such an award but they

could not do so. The trial judge pointed out the only basis for this figure was

defense counsel’s suggestion in closing argument. The record shows that the value

of the pipe alone (the purchase price) exceeded this amount.

Fifth, there is no legal basis for ninety (90) percent versus ten (10) percent as

we will discuss herein. And sixth, the evidence of record shows that this type of

pipe was developed with advantages for use in drilling deeper wells such as

Musser-Davis 34-1. Moreover, Defendants knew that Justiss was going to use the

pipe for drilling a well at this depth and certified that the pipe was fit for such use.

Louisiana Code of Civil Procedure Article 1811 (F) provides a motion for

JNOV “may be granted on the issue of liability or on the issue of damages or

both.” In Dubois v. Armstrong, 15-345 pp 5-6 (La.App. 3 Cir. 2/10/16), 186 So. 3d

305, 311, writ denied, 2016-0451 (La. 4/22/16), 191 So.3d 1045, this court

explained the basis for granting a JNOV and the standard of review on appeal:

In reviewing a JNOV, the appellate court must first
determine if the trial court erred in granting the JNOV.
This is done by using the aforementioned criteria just as
the trial judge does in deciding whether to grant the
motion or not, i.e. do the facts and inferences point so

12

strongly and overwhelmingly in favor of the moving
party that reasonable men could not arrive at a contrary
verdict? If the answer to that question is in the
affirmative, then the trial judge was correct in granting
the motion. If, however, reasonable men in the exercise
of impartial judgment might reach a different conclusion,
then it was error to grant the motion and the jury verdict
should be reinstated.

Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 832
(La.1991).

“The standard of review for a JNOV on appeal is a two part
inquiry.” Davis v. Wal–Mart Stores, Inc., 00–445, p. 5 (La.11/28/00),
774 So.2d 84, 89. “After determining that the trial court correctly
applied its standard of review as to the jury verdict, the appellate court
reviews the JNOV using the manifest error standard of review.” Id.

For the reasons stated above we find the trial judge did not manifestly err in

granting the JNOV and reversing the jury finding on causation.

Comparative fault not applicable to contracts.

Plaintiff agrees with the trial court’s JNOV, except Justiss argues the trial

judge committed two legal errors. First, the judge applied the wrong theory of

recovery in ultimately apportioning the consequential damage award which it

insists rest entirely on contract law. Justiss argues that the assessment of Louisiana

Civil Code Article 23234 comparative fault is applicable only in cases rooted in tort

4
Louisiana Civil Code Article 2323 is found in Book III, Title V, Chapter 3, “Of
Offenses and Quasi Offenses.” This placement in the Code strongly signifies its
application to tort law. Contract law is found in Title IV of Book III. Hanover Ins. Co. v.
Plaquemines Parish Government, 2015 WL 4167745, p. 6 (E.D. La. July 9, 2015).

A. In any action for damages where a person suffers injury, death, or loss, the
degree or percentage of fault of all persons causing or contributing to the injury,
death, or loss shall be determined, regardless of whether the person is a party to
the action or a nonparty, and regardless of the person's insolvency, ability to pay,
immunity by statute, including but not limited to the provisions of R.S. 23:1032,
or that the other person's identity is not known or reasonably ascertainable. If a
person suffers injury, death, or loss as the result partly of his own negligence and
partly as a result of the fault of another person or persons, the amount of damages
recoverable shall be reduced in proportion to the degree or percentage of
negligence attributable to the person suffering the injury, death, or loss.

13

and not those involving the relationship and obligations of contracting parties.

Second, all parties agree the trial judge granted the purchase price of the pipe

twice, and that was wrong.

We recognize that the Louisiana State Supreme Court has not ruled squarely

on this question, and we note our courts of appeal are split on the issue. See

Aucoin v. Southern Quality Homes, LLC, 07-1014 (La. 2/26/08), 984 So.2d 685.

The first and second circuits have held La. Civ.Code art. 2323 is applicable to

actions in redhibition. Petroleum Rental Tools v. Hal Oil & Gas Co., Inc., 95,

1820 (La.App. 1 Cir. 8/22/97), 701 So.2d 213, writ dismissed, 97-3088 (La.

2/10/98), 706 So.2d 982 and Hampton v. Cappaert Manufactured Housing, Inc.,

36,773 (La.App. 2 Cir. 1/29/03), 839 So.2d 363. The fourth circuit has held La.

Civ.Code art. 2323 applies only to actions in tort, and does not apply to an action

in redhibition because such actions are based on the law of contracts. Touro

Infirmary v. Sizeler Architects, 04-634 (La.App. 4 Cir. 3/23/05), 900 So.2d 200,

writs denied, 04-2114 (La. 5/6/05), 901 So.2d 1093 and 05-1315 (La. 1/13/06), 920

So.2d 232. The federal courts in Louisiana have also split on the issue, some

making their ruling without much analysis. Two decisions in the Louisiana federal

courts are instructive and persuasive on the subject, and we think their reasoning,

like the fourth circuit’s, is sound. In Hollybrook Cottonseed Processing, LLC v.

B. The provisions of Paragraph A shall apply to any claim for recovery of
damages for injury, death, or loss asserted under any law or legal doctrine or
theory of liability, regardless of the basis of liability.

C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers
injury, death, or loss as a result partly of his own negligence and partly as a result
of the fault of an intentional tortfeasor, his claim for recovery of damages shall
not be reduced.

Louisiana Civil Code art. 2323.

14

Carver, Inc., 2011 WL 2214936 (W.D. La. 6/6/11), the federal court, recognizing

the split among the state courts of appeal, held that the provisions on comparative

fault apply only in tort actions. In a more recent case, the federal district court in

Louisiana engaged in a more thorough analysis and concluded the Louisiana

Supreme Court would likely hold that La. Civ.Code art. 2323 applies only to tort

claims. It held comparative fault is not available as a defense to a redhibition

claim. We quote that opinion at length because it presents a thorough and well-

reasoned analysis of Louisiana law and jurisprudence which leads us to the same

conclusion.

In Dumas v. State ex rel. Department of Culture, Recreation &
Tourism, [02-563 (La. 10/15/02), 828 So.2d 530] the Louisiana
Supreme Court was asked to decide whether comparative fault
principles applied in the context of a tort case. While the facts of
Dumas are not applicable to this case, the Supreme Court’s discussion
of the 1996 revision is helpful.

The Supreme Court’s description of the 1996 amendment to
article 2323 is rife with references to tort law. In fact, the Court
describes the amendment’s purpose as “to abolish solidary liability
among non-intentional tortfeasors and to place Louisiana in a pure
comparative fault system.” [ (emphasis added) Id. at 535] The Court
further characterizes the amendments as “effect[ing] a total shift in
tort policy.” [ (emphasis added) Id. at 538] The opinion consistently
references the amendments as revising Louisiana’s tort law but makes
no reference to the amendments altering other theories of recovery.
Dumas’s consistent reference to the 1996 amendments as changing
tort law is persuasive. So too is the fact that, as far as the Court can
tell, no Louisiana court has applied comparative fault principles to a
breach of contract claim.

The Court, finding that Louisiana case law sic[does] not
support the application of comparative fault to contract claims, finds
greater support in the very structure of the Louisiana Civil Code.
Unlike statutes enacted in common law jurisdictions, the articles of a
civil code are carefully organized according to their subject matter.
[citations omitted] The Louisiana Supreme Court has long held that
civil code articles should be construed with regard to their subject
matter. [Compare Citizens & Taxpayers of De Soto Parish v.
Williams, 21 So. 647, 654 (La.1897) with Pociask v. Moseley, 13-262

15

(La. 6/28/13), 122 So. 3d 533, 540.] It is, therefore, helpful to
consider article 2323’s placement within the Civil Code.

Article 2323 is found in Title V of Book III of the Civil Code,
dealing with obligations that arise without agreement. More
specifically, it is located in Chapter 3, which contains Louisiana's tort
law. Contract law, however, is found in Title IV of Book III. This, of
course, suggests that article 2323 was intended to apply to tort law
only.

A closer examination of the Code further supports this
conclusion. Title IV of Book III contains specific rules governing the
calculation of damages in contract cases. [La. Civ.Code arts. 1994-
2004.] These provisions, among other things, allow a court to reduce
the damages owed to a party damaged by another’s breach of contract
where the obligee’s own negligence has contributed to his damages.
[La. Civ.Code 2003.] The fact that the contracts section of the Code
contains its own set of rules regarding damages also counsels against
importing a tort article into contract cases.

It is a provision found in Title III of Book III, however, that
most strongly counsels against the application of comparative fault in
contract cases. Article 1804 provides:

Among solidary obligors, each is liable for his virile
portion. If the obligation arises from a contract or quasi-
contract, virile portions are equal in the absence of
agreement or judgment to the contrary. If the obligation
arises from an offense or quasi-offense, a virile portion is
proportionate to the fault of each obligor.

This article, unsurprisingly found in the general obligations
provisions, specifically provides that damages are allocated in one
manner among co-obligors to a contract and in a different manner
among co-obligors to an offense or quasi-offense. Indeed, the
comments to the article explicitly state that the allocation of damages
“depend[s] on the source of the obligation.” [La. Civ.Code art. 1804
cmt. (b).] In light of the distinction made in article 1804, it seems
clear that the Legislature intended to create separate legal regimes
governing the allocation of damages in contract and tort actions.
Because the Louisiana Legislature has not altered either article 1804
or the damages articles in the section of the code dedicated to
conventional obligations, the Court concludes that the Louisiana
Supreme Court would likely hold that article 2323 applies to tort
claims only.

Hanover Ins. Co. v. Plaquemines Parish Gov’t., 2015 WL 4167745, at 5–6

(E.D. La. July 9, 2015).

16

We find this reasoning sound and agree with this analysis of our law on torts

and contracts. We therefore hold that comparative fault, as provided in La.

Civ.Code art. 2323, does not apply to an action in redhibition. This is especially

clear in redhibitory actions against a manufacturer given that under Louisiana law

they are “conclusively presumed” to know of the defect. Chevron USA, Inc. v.

Aker Mar., Inc., 604 F.3d 888, 899 (5th Cir.2010).

Redhibition.

The jury, and the trial court in its granting JNOV, both concluded that Justiss

proved a redhibitory defect in the casing pipe. This finding is well supported by

the record and defendants do not dispute this finding on appeal. “The purpose of

the redhibition action in Louisiana, as was the case in Roman law, has been to

restore the status quo.” Young v. Ford Motor Company, 595 So.2d 1123, 1127

(La.1992).

“[T]he purpose of awarding attorney's fees and expenses ... in
redhibition cases is ‘to restore the purchaser, as much as possible, to
the condition he enjoyed prior to the sale.’ ” Fontenot v. F. Hollier &
Sons, 478 So.2d 1379, 1389–90 (La. Ct. App. 1985) (quoting
Alexander v. Burroughs Corp., 359 So.2d 607, 610 (La. 1978)); see
also Young v. Ford Motor Co., 595 So.2d 1123, 1127 (La. 1992)
(“The purpose of the redhibition action in Louisiana ... has been to
restore the status quo.”).

Hollybrook Cottonseed Processing, L.L.C., v. Am. Guarantee & Liab. Ins. Co., 15-

31090, 2016 WL 6541585 p. 2 (5th Cir. 11/ 3/16) (emphasis added).

The buyer is entitled to rescind the sale solely by reason of the redhibitory

defect. La. Civ.Code art. 2520. Recovery based on redhibitory defects is not fault

based, but arises from the seller/manufacturer’s warranty of the thing sold. The

buyer does not have the burden to prove some specific cause of the defect, nor is

he required to negate other conceivable causes for the defective performance of the

17

object. Young, 595 So.2d 1123. Thus, the jury, and the trial court in its ruling

granting JNOV, erred as a matter of law in apportioning fault regarding Justiss’

redhibition claim, and in failing to award Justiss the damages mandated by the

Louisiana Civil Code, having found Justiss met its burden to prove a redhibitory

defect that rendered the pipe useless for its intended purpose.

The jury likely committed this error because of the fundamentally flawed

interrogatories. Rather than directing the jury to award the statutory damages to

which Justiss was entitled, the jury form directed the jury to assess degrees of fault

as to Justiss, Oil Country, and NAI. This was a fundamental error in the jury

instructions. Manufacturers of defective goods are deemed to have sold their

goods in bad faith, and, under Louisiana redhibition law, are liable for: “the return

of the price with interest from the time it was paid, for the reimbursement of the

reasonable expenses occasioned by the sale and those incurred for the preservation

of the thing, and also for damages and reasonable attorney fees.” La. Civ.Code

Art. 2545.5

In Aucoin v. South Quality Homes, LLC, 07-1014, pp 6–11 (La. 2/26/08),

984 So.2d 685, 690–93, (emphasis added) the Louisiana state supreme court

provided an instructive review of our law on redhibition:

The statutory law relative to redhibition is contained in Title
VII of the Louisiana Civil Code governing ‘Sale.’ La. C.C. art. 2520
states the warranty against redhibitory defects as follows:

The seller warrants the buyer against redhibitory defects,
or vices, in the thing sold.

5
We note that the seller in this case, Oil Country, filed a third party action against the
manufacturer in the court below. As the seller, Oil Country is not liable for the consequential
damages which are due by the manufacturer unless it acted in bad faith in selling the defective
pipe. The trial court held Oil Country and NAI liable in solido for all damages. Oil Country has
not attacked the in solido finding of the trial court and we therefore cannot address that issue in
this appeal.

18

A defect is redhibitory when it renders the thing useless,
or its use so inconvenient that it must be presumed that a
buyer would not have bought the thing had he known of
the defect. The existence of such a defect gives a buyer
the right to obtain rescission of the sale. . .

La. C.C. art. 2530 provides in pertinent part that ‘[t]he warranty
against redhibitory defects covers only defects that exist at the time of
delivery.’

The extent of a seller’s liability to a buyer for breaching this
warranty depends on whether the seller knew, or did not know, of the
defect. La. C.C. art. 2531 provides:

A seller who did not know that the thing he sold
had a defect is only bound to repair, remedy, or correct
the defect. If he is unable or fails so to do, he is then
bound to return the price to the buyer with interest from
the time it was paid, and to reimburse him for the
reasonable expenses occasioned by the sale, as well as
those incurred for the preservation of the thing, less the
credit to which the seller is entitled if the use made of the
thing, or the fruits it has yielded, were of some value to
the buyer.

A seller who is held liable for a redhibitory defect
has an action against the manufacturer of the defective
thing, if the defect existed at the time the thing was
delivered by the manufacturer to the seller, for any loss
the seller sustained because of the redhibition. Any
contractual provision that attempts to limit, diminish or
prevent such recovery by a seller against the
manufacturer shall have no effect.

On the other hand, the liability of a seller who knows of the
defect is greater:

A seller who knows that the thing he sells has a defect but
omits to declare it, or a seller who declares that the thing
has a quality that he knows it does not have, is liable to
the buyer for the return of the price with interest from the
time it was paid, for the reimbursement of the reasonable
expenses occasioned by the sale and those incurred for
the preservation of the thing, and also for damages and
reasonable attorney fees. If the use made of the thing, or
the fruits it might have yielded, were of some value to the
buyer, such a seller may be allowed credit for such use
or fruits.

19

A seller is deemed to know that the thing he sells has a
redhibitory defect when he is a manufacturer of that
thing.

La. C.C. art. 2545.

In Young v. Ford Motor Co., Inc., 595 So.2d 1123 (La.1992),
we explained the Roman origins of the redhibitory action and that its
purpose was to protect buyers from latent defects undisclosed by
corrupt dealers. “This important aspect of our current law on sales
(i.e., this system of implied warranty against latent defects and vices)
was fully incorporated into Louisiana law.” Id. (See e.g., Louisiana
Civil Code of 1808, Art. 66 and Art. 71) “The purpose of the
redhibition action in Louisiana, as was the case in Roman law, has
been to restore the status quo.” Id. (Citing Floyd W. Lewis, Comment,
Warranty of Quality in Louisiana: Extent of Recovery under the
Implied–In–Law Warranty, 23 Tul. L.Rev. 130, 131 (1948); Savoie v.
Snell, 213 La. 823, 35 So.2d 745, 746 (1948). “The seller in good
faith had only to restore the purchase price paid and any expenses
incurred (Article 2509, La. Civil Code of 1825), while the seller in
bad faith was also liable in damages. Article 2523, La. Civil Code of
1825).” Id. Thus, an action in redhibition entitles the buyer to annul
the sale and recover the purchase price, rather than being limited to
recovering the cost of curing any such substantial defects. Rey v.
Cuccia, 298 So.2d 840 (La.1974); Prince v. Paretti Pontiac Co., Inc.,
281 So.2d 112 (La.1973).

Although the code articles on redhibition appear to only allow a
suit by a buyer against a “seller” for redhibitory defects, this Court
held in Media Production Consultants, Inc. v. Mercedes–Benz of
North America, Inc., 262 La. 80, 262 So.2d 377 (1972), that the buyer
could recover directly from the manufacturer for breach of warranty,
despite the fact that there was no privity of contract between them. In
Media Production, the Court stated:

Louisiana has aligned itself with the consumer-protection
rule, by allowing a consumer without privity to recover,
whether the suit be strictly in tort or upon implied
warranty. Marine Ins. Co. v. Strecker, 234 La. 522, 100
So.2d 493 (1958); LeBlanc v. Louisiana Coco Cola
Bottling Co., 221 La. 919, 60 So.2d 873 (1952).

We see no reason why the rule should not apply to the
pecuniary loss resulting from the purchase of a new
automobile that proves unfit for use because of latent
defects. The pecuniary loss resulting from an unusable
vehicle is recoverable when there is an Express warranty
without privity. [Cites omitted.] Although there is a split
of authority on the question, we find no adequate reason

20

for not applying the same rule and allowing recovery
when there is an implied warranty without privity. [Cites
omitted.]

262 So.2d at 380–81.

After this analysis, the Court held “that Mercedes–Benz of
North America, Inc. [the manufacturer], is solidarily liable with [the
seller] for the price of the automobile and other allowable expenses.”
Id.

Two years later, in Rey v. Cuccia, supra, this Court relied on
Media Productions to hold the manufacturer of a trailer solidarily
liable with the seller for a redhibitory defect which existed at the time
the manufacturer sold the trailer to the seller. See also Womack and
Adcock v. 3M Business Products Sales, Inc., 316 So.2d 795 (La.App.
1 Cir.1975) (holding that “since the now famous case of Media Pro.
..., the buyer's action for breach of implied warranty has been
extended to all sellers in the chain of sales back to the primary
manufacturer”). The Court in Rey held that “[t]he consumer's action is
enforceable against the manufacturer at the same time and at least
within the same year following the sale to the consumer, Article 2534,
as it is enforceable against the seller.” 298 So.2d at 845. The Court
further held that because the manufacturer is presumed to know of
defects, the one-year limitation of Article 2534 does not apply and the
consumer may institute the action to recover for the redhibitory defect
within the year following his discovery of it. Id. (Citing La. C.C. art.
2546).

Although Media Production and Rey held the manufacturer and
seller were solidarily liable for the defects at issue, we need not reach
the correctness of that issue, as we find that the manufacturer is
independently liable under those cases for redhibitory defects that
existed at the time of delivery to the seller.

Under La. C.C. art. 2520, the seller warrants the product he
sells to be free of redhibitory defects, and under La. C.C. art. 2531,
the seller is liable to the buyer even for redhibitory defects he was not
aware of, including those that were the fault of the manufacturer. In
such a case, the seller is responsible for correcting the defect, or, if he
is unable to do so, he must return the purchase price with interest,
plus reimburse the buyer for his reasonable expenses; however, he
has an action against the manufacturer for any defects which “existed
at the time the thing was delivered by the manufacturer to the seller.”
La. C.C. art. 2531. On the other hand, while a buyer may sue a
manufacturer directly for redhibitory defects, the manufacturer is
liable but only for defects “resulting from the original manufacture” of
the product. Rey v. Cuccia, supra at 845.

21

Thus, whether the manufacturer is solidarily liable with the
seller for redhibitory defects is immaterial in this case, as the
manufacturer is directly liable for redhibitory defects resulting from
the original manufacture of the product.

Defendants assert that Justiss cannot recover damages because it failed to

afford either of the Defendants the opportunity to cure the defect by replacing the

defective casing pipe with good pipe. First, Justiss was under no such duty as to

the manufacturer of the pipe, and in this case, under no such duty to the seller.

Second, the expert evidence makes it clear that Justiss could not remove the casing

pipe after it was cemented in the well bore hole. The expert evidence clearly

shows that Justiss was acting reasonably and within normal drilling procedures

when it elected to cement the casing in place before learning the pipe was

defective.

The degree of the seller's liability varies according to whether
the seller knew of the defect. If he did not know of the defect, the
seller must have an opportunity to cure the defect, either through
repair or replacement. Id. arts. 2522 & 2531. If the seller cannot cure
the defect, the buyer is entitled to rescission and the reasonable
expenses occasioned by the sale. Id. The law is more demanding of the
seller who knows of the defect. The seller is entitled to no opportunity
to cure, and the seller in bad faith must pay for damages, plus
reasonable attorney fees. Id. arts. 2522 & 2545. Manufacturers are
conclusively presumed to know of defects in their products, Id. art.
2545 cmt. (d), and consequently, a manufacturer of a defective
product is liable for a buyer's reasonable attorney fees.

Chevron, 604 F.3d at 899 (emphasis added).

Defendants also maintain that Justiss’ recovery for redhibitory defects is

dependent upon proof of causation with an apportioning of responsibility for

Justiss’ losses. Again, Defendants misconstrue the law on redhibition.

In a suit for redhibition, the plaintiff must prove: 1) the seller
sold the thing to him and it is either absolutely useless for its intended
purpose or its use is so inconvenient or imperfect that, judged by the
reasonable person standard, had he known of the defect, he would
never have purchased it; 2) the thing contained a nonapparent defect

22

at the time of sale; and 3) the seller was given an opportunity to repair
the defect. Vincent v. Hyundai Corp., 633 So.2d 240, 243 (La.App. 1
Cir.1993), writ denied, 93–3118 (La.2/11/94), 634 So.2d 832.

Blair v. Bad Boy Inc., 48,953 pp. 5–7 (La.App. 2 Cir. 4/9/14), 137 So.3d

1223, 1227–28.

In this case, it is undisputed Country Oil sold defective pipe manufactured

by NAI to Justiss, and the pipe could not perform to the standards it was certified

to meet. The evidence further demonstrates: 1) the defect in the casing pipe

rendered it useless for Justiss’ purpose; 2) the pipe contained a non-apparent defect

at the time of the sale; 3) it was not possible to give Country Oil an opportunity to

cure the defect; and 4) the defect could only be cured by providing new pipe but

this option was not a viable option in this case. Additionally, NAI, as

manufacturer of the defective pipe, was not entitled to an opportunity to cure the

defect. The finding of a redhibitory defect in the pipe voids the sale ab initio and

hence the imposition of damages to return the buyer to the status quo.

Justiss’ efforts over an almost five week period are well documented as are

the costs incurred during these attempts to mitigate its losses. Before ever reaching

Defendant’s alleged hole in the ground, Justiss spent over four weeks making

every reasonable effort to proceed with drilling the well while having to use

defective pipe cemented in the ground. Justiss made expensive and professional

attempts to remediate the leaky pipe from its discovery of the problem at 3,500

feet, on down to 8,000 feet where it encountered more problems with the pipe

leaking, and continuing all the way down to 13,569 feet when the situation became

too dangerous to proceed. At 3,500 feet down the pipe was pressure-tested as the

law requires. The defective pipe utterly failed to hold pressure to the minimum

requirement of 2,500 PSI. Instead it would not hold pressure above 1,200 PSI.

23

This pipe was supposed to be rated at 10,000PSI. From 3,500 feet on down to

8,000 feet the pipe continually leaked. Justiss kept trying to stop the leaks and to

achieve a level of pressure that would allow the operation to limp forward. The

effort required thirteen (13) “squeeze jobs” and drilling with a mud motor. It

entailed the laborious and dangerous task of “squeezing” a section to get it to an

acceptable pressure, then unsetting the packer, testing the back side, and if it was

still leaking pulling up the packer, pouring in more cement, drilling through the

cement after it sets, and continuing this process thirteen (13) times. Defendants

seem to argue that Justiss’ claim for theses damages should be rejected because it

ultimately would not have succeeded in reaching the 15,000 feet depth originally

contemplated. We find this argument unpersuasive and it contravenes the laws on

redhibition applicable in this case as discussed below. The law on redhibition

entitles Justiss to recover these costs regardless of whether an actual hole in the

formation made it impossible to proceed any further.

Mitigation of loss and negligence in contract law.

A. No reduction in damages.

We are satisfied the trial judge did not err in awarding Plaintiff its out-of-

pocket expenses, which included $391,050 (the purchase price of the defective

pipe) and $1,165,460.43 (the cost for repairs to the pipe as the operation proceeded

to 13,569 feet).

Although we have found comparative fault has no application to contract

law, we must now determine, under the applicable provisions of our contract law,

whether Justiss’ damages may be reduced for any negligence on its part which may

have occurred during its attempt to use the defective pipe. Faced with defective

pipe cemented in the bore hole, Justiss decided to make special efforts, at its own

24

great expense and risk, over a period of almost five weeks, to proceed with drilling

Musser-Davis 34-1. Defendant offered no evidence to show that Justiss should not

have tried to stop the leak all the way down. Their expert merely said he would go

forward, stop, go forward, stop, and do so as long as that kept working. At the end

of the day, looking back up the pipe from the bottom, it would have amounted to

the same thing Justiss did in fact do, and nothing here suggests the repair costs

would have been less. Justiss would not have had to do all of this but for the

defective pipe. Justiss ceased its efforts and plugged the well when it became

apparent that it was too dangerous to their employees and the environment to

continue.

Louisiana Civil Code Article 2002 provides:

An obligee must make reasonable efforts to mitigate the
damage caused by the obligor’s failure to perform. When an obligee
fails to make these efforts, the obligor may demand that the damages
be accordingly reduced.

This court has long recognized the well settled doctrine of mitigation,

applicable to tort and contract law in Louisiana, taken from common law, and

codified in La. Civ.Code art. 2002:

The doctrine of mitigation of damages imposes on an injured
party the need to exercise reasonable diligence and ordinary care in
attempting to minimize his damages after an injury has been inflicted.
The care and diligence required of him is the same as that which
would be used by a man of ordinary prudence under like
circumstances. This principle will not be applied to restrict an
injured party’s recovery when the injured party is required to
make substantial expenditures of his own funds or incurs
substantial risks in order to avoid the consequences of a breach of
contract. See Unverzagt v. Young Builders, Inc., 252 La. 1091, 215
So.2d. 823 (1968). Pelloquin v. Missouri Pacific Railroad Company,
216 So.2d 686 (La.App. 3 Cir. 1968).

Toce Oil Company, Inc. v. Great Southern Oil & Gas Company, Inc., 545 So.2d

1085, 1091-92 (La.App. 3 Cir. 1989) (emphasis added).

25

In the seminal case in Louisiana recognizing the application and codification

of the doctrine, our state supreme court in Unverzagt, explained the principle:

Perhaps the best exposition of the principle, insofar as it is pertinent to
the instant matter, appears in 22 American Jurisprudence, 2d, pages
53, 61 and 282, verbo “Damages” (Sections 32, 37 and 203). Therein
it is stated:

Section 32. Under the doctrine of avoidable
consequences, the injured person need not make
extraordinary efforts or do what is unreasonable or
impracticable in his efforts to minimize damages;
reasonable diligence and ordinary care are all that is
required to allow full recovery of all damages caused by
the defendant's wrongful activity. More completely
stated, the consequences of an injury are recoverable
where the injured party acts with such care and diligence
as a man of ordinary prudence would under the
circumstances, and his efforts to minimize damages are
determined by the rules of common sense, good faith,
and fair dealing. What constitutes reasonable care
depends upon the circumstances of the particular case,
taking into consideration time, knowledge, opportunity,
and expense. An injured person may recover to the full
extent of his injury where he shows reasonable grounds
for his failure to make an effort to lessen his damages.
Thus, the repeated assurances of the defendant after an
injury has begun that he will remedy the condition is
sufficient justification for the plaintiff's failure to take
steps to minimize loss, so long, at least, as there is
ground for expecting that he will perform.

‘Section 37. Following a breach, it is sometimes possible
for the nondefaulting party to minimize his damages by
spending a sum of money. If the courts were to require
this expenditure in every case in which it turns out, as a
matter of hindsight, that such expenditure would have
minimized the loss, courts would effectively be requiring
the innocent party to incur risks beyond those in the
contract in the hope that damages could be recovered
from the breacher. Therefore, courts generally do not
determine damages based upon the making of these
expenditures unless (1) they are small in comparison to
the possible losses, and (2) it is virtually certain that the
risks incurred will avoid at least a part of the loss.
Damages will not be decreased through showing that a
substantial expenditure would have minimized the total
loss or that the suggested expenditure may or may not

26

have decreased damages. The defaulter is in no position
to cast this risk of substantial expenditures on the
plaintiff. Since such risks arose because of the breach,
they are to be borne by the defaulting party.

Unverzagt, 252 La. at 1097–98 (emphasis added).

In her reasons for judgment the trial judge stated:

The Court is satisfied that the jury, like this Court, heard sufficient
evidence from the defense that mitigation of costs could have best
been addressed by the plaintiff by ending their exploits sooner rather
than later and by changing the drilling to a more shallow depth. The
additional damages requested by plaintiffs, unlike those of redhibition,
are subject to comparative negligence and apportionment of fault.
Considering this, the Court determines that the jury’s findings, as to
this aspect are supported by a fair interpretation of the law and
evidence. The jury found that Justiss contributed to its own damages
and assigned the percentages of 10/90.

Having made this statement the judge nevertheless awarded Justiss full

recovery for repairs. Justiss is indeed entitled to full recovery for the costs of

repairs, which, we have already said in this case, includes its almost five weeks

effort. As the court noted in Toce, the principle of mitigation of damages “will not

be applied to restrict an injured party’s recovery when the injured party is required

to make substantial expenditures of his own funds or incurs substantial risks in

order to avoid the consequences of a breach of contract.” Toce, 545 So.2d at 1092.

No amount of negligence or fault may be ascribed to Justiss for engaging in its

good faith effort to try to find a way to make Defendant’s defective pipe work.

Notably, Defendants’ expert does not say Justiss’ effort was unreasonable. The

evidence shows Justiss’ efforts were diligent and reasonable. Even defense expert

Dr. Wooley said in his opinion it was safe to proceed under the circumstances with

the pipe holding lower pressure, and he himself would have done so, at least down

to the 13,569 foot depth. Defendants failed to establish that Justiss should have

stopped sooner and that it failed to properly mitigate its losses.

27

B. No reduction for consequential damages—“lost profits”

We find the trial court committed legal error in applying comparative fault

to reduce the consequential damage award. The judge said Justiss tried too hard

for too long, that it should have only tried drilling to a more shallow depth. The

judge employed this notion to reach her conclusion that Justiss’ recovery of lost

profits should be reduced by 90%. This concept is simply not in accord with

settled contract law. The real question here regarding Justiss’ entitlement to

consequential damages is whether Defendant proved some intervening cause, other

than the defective pipe, was the reason for Justiss’ failure to reach the contract

depth of 15,000 feet.6 The burden was on Defendants to prove such an

intervening cause. Rey and Tucker. As we have discussed at length above, they

failed to do so. Defendants failed to rebut the evidence put forth by Justiss

through expert testimony, witnesses who were on the scene, and records and

drilling logs, the veracity of which Defendants do not dispute. The evidence,

under careful scrutiny, reveals Justiss could not get to 15,000 feet, despite its

valiant efforts and great expense, for no other reason proved than Defendants’

defective pipe. Defendants cannot escape liability for all damages due Justiss as a

result of providing defective pipe by hypothesizing that some unknown and

speculative intervening cause, i.e. a phantom hole in the formation, resulted in

shutting in the well before completion. Defendants squandered their opportunity to

gather all the proof they needed to validate their “dry hole” theory. They chose to

forego visiting the site and opted to rely solely on speculation and the fact that a

6
Justiss’ contract was clear, if it did not drill the well to 15,000 feet it did not get a dime. The
evidence is also clear, Justiss would only be paid by MidStates under its turnkey contract if it
completed the well to a certain specified depth which was deeper than the shallow depth
suggested by the trial judge.

28

neighboring property had a dry hole. The trial court obviously rejected the dry hole

assertion as do we for the reasons stated herein. The fact that Justiss’ efforts to

bring in the well despite the defective pipe proved futile in the end does not visit

the loss on Justiss. Justiss’ loss of profits occasioned by in its inability to complete

the well using Defendants’ defective pipe is a loss to be bourne by Defendants.

Justiss is entitled to the full sum of its lost profits with no reduction of those

damages.

Conclusion

Defendants maintain that, after selling Justiss defective pipe for the sum of

$391,050.20, Defendants should be left to pay Justiss only the $25,000 awarded by

the jury. Moreover, despite their failure to assert the pipe was not defective,

Defendants posit that either: the defective pipe did not cause the inability to

complete the well; Justiss should not have used this type of pipe for this well;

Justiss should not have cemented casing in the hole and had they not done so

Defendants could have provided good pipe; Justiss should not have tried to make

the defective pipe work, but, having tried to mitigate its loss, Justiss should have

stopped its efforts sooner and not spent so much on its efforts; or, a speculative

natural cause was the reason for shutting in the well before completion. None of

these theories stand up to scrutiny when viewed in light of the record evidence and

the applicable law and jurisprudence. Faced with defective pipe, cemented in the

ground before discovering any problem with it, Justiss met its duty to attempt to

mitigate its loss caused by Defendants’ breach, and went well beyond what was

required to meet that duty. The law does not fault Justiss in hindsight for its

tenacity, and does not allow a reduction in Defendants’ damages on the basis that

Defendants or the trial court, in hindsight, would have chosen to proceed

29

differently. Had Justiss’ efforts to “make do” with the defective pipe proved

successful, Defendants would have been liable for the costs so incurred by Justiss,

and would have enjoyed the benefit of Justiss’ mitigation of loss. It was not

“negligent” for Justiss to make efforts, at its own risk and expense, which were

reasonable under the circumstances and in good faith, trying to work with defective

pipe and minimize its loss. It is worthy of note that Justiss was not only mindful of

the profit it would lose by failing to complete the well to the contracted depth, but

also the incalculable damage to its reputation caused by failing to bring in the well,

whatever the reason.

According to views expressed by the Louisiana jurisprudence, a
party who has been required to make substantial expenditures of his
own funds, or to incur substantial risks, in order to avoid the
consequences of a breach of contract should not be restricted in his
right to recover for those expenses and those risks. Toce Oil
Company, Inc. v. Great Southern Oil & Gas Company, 545 So.2d
1085, 1092 (La. app. 3d Cir. 1989). See also Ernest Simon & Son v.
Perma-Clad of Georgia, Inc., 459 So. 2d 213 (La.App. 3d Cir. 1984).
Such views were expressed in a case where, upon a drilling
contractor’s failure to dig a well, in an attempt to avoid further loss,
the landowner who had engaged the services of that contractor made a
contract with another drilling company for the same purpose, but the
other company not only also failed to dig a well but, because of
bankruptcy, was unable to refund the sums the landowner had
advanced for the unperformed work. 545 So.2d 1086-1088. In that
case the court allowed the landowner to recover the sums paid to the
second contractor because, according to the court, the first
contractor’s failure to perform his obligation left the landowner with
no other choice than incurring that expenditure. The court reflected
that the landowner could not be faulted for having chosen a course of
action that resulted, precisely, because of the lack of another choice.
Toce Oil Company, Inc. Great Southern Oil & Gas Company, Inc.
545 So. 2d 1085, 1092 (La.App. 3 Cir. 1989). See also Ernest Simon
& Son v. Perma-Clad of Georgia, Inc., 459 So.2d 213 (La. App. 3d
Cir. 1984).

6 La. Civ. L. Treatise, Law of Obligations § 10.9 (2d ed.)

Likewise, the evidence shows Justiss was unable to complete the well to

contract depth due to Defendants’ defective pipe and Defendant failed to prove any

30

intervening cause which would diminish or prohibit full recovery for consequential

damages, i.e. lost profits.

Decree.

For the reasons stated, we reverse the trial court judgment insofar as it

assigned any amount of fault to Justiss. In all other respects, we affirm the

granting of the JNOV and the trial court’s award of damages except we further

amend the judgment below to deduct the purchase price from the award of

consequential damages. The award for consequential damages is hereby amended

to reflect an award of $2,445,682.80. We award additional attorney fees for this

appeal in the amount of $10,000.00. All costs in the trial court and this court are

assessed against Defendants.

AFFIRMED IN PART, REVERSED IN PART, RENDERED.

31

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-1148

JUSTISS OIL COMPANY, INC.

VERSUS

OIL COUNTRY TUBULAR CORPORATION, ET. AL.

SAVOIE, J. CONCURS IN PART, AND DISSENTS IN PART WITH

WRITTEN REASONS.

I disagree with the majority’s conclusion to award the plaintiff with

$2,445,682.80 in consequential damages, which is the profit the plaintiff would

have received had it drilled to the depth contemplated by its contract. I would not

award any consequential damages for lost profits to the plaintiff based on the jury’s

finding on that issue. I otherwise concur in the result of this case.

I would find error in the trial court’s decision to grant the JNOV as to the

jury’s finding in interrogatory number three on the special verdict form that the

defective casing did not proximately cause the plaintiff’s damages. The jury

instructions indicate that this interrogatory was directed toward the question of

whether the defective casing was the proximate cause of the plaintiff’s

consequential damages, or lost profits. The jury was instructed to decide “whether

th[e] casing was a cause in fact of the losses suffered by Justiss,” and was then told

by the trial judge that:

[b]y cause “cause in fact” I mean you must determine whether the
defective casing was a substantial factor in preventing Justiss from
completing its contract and drilling the Musser-Davis 34-1 Well to
its contract depth. In other words, if you find that Justiss would
have completed the Musser-Davis 34-1 well to its contract depth but
for the defects in the casing, then the defective casing is a cause in
fact of the Justiss loss.

(emphasis added).

Interrogatory number three is not impermissibly inconsistent with the

interrogatories seeking fault allocation. The jury instructions indicate that the

interrogatories pertaining to fault allocation relate to the cause of the defect in the

casing. The jury was instructed that the defendants would not be liable if the

defendants proved that the defects in the casing were caused by the plaintiff’s own

misuse of the casing or that the defect in the casing did not ultimately cause the

casing to fail and render it useless. This issue is distinct from what caused the

plaintiff’s consequential damages (i.e. lost profits from failing to reach the

contract-depth), which was addressed in interrogatory number 3. The jury’s

finding as to whether the defect caused the plaintiff’s consequential damages is

reasonably supported by the evidence in the record and should not be disregarded.