Tasha Tolar Carriere and Daniel Bihm Marcantel v. Union Pacific Railroad Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-914

TASHA TOLAR CARRIERE AND DANIEL BIHM MARCANTEL, ET AL.

VERSUS

UNION PACIFIC RAILROAD COMPANY, ET AL.

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ON APPLICATION FOR SUPERVISORY WRITS FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 13-C-3656
HONORABLE ALONZO HARRIS, DISTRICT JUDGE

**********

SHANNON J. GREMILLION

JUDGE

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Court composed of, Sylvia R. Cooks, Shannon J. Gremillion, and D. Kent Savoie,
Judges.

WRIT DENIED.

William H. Howard, III
Alissa A. Allison
Laura E. Carlisle
Kathlyn G. Perez
Baker Donelson Bearman Caldwell & Berkowitz, P.C.
201 St. Charles Avenue, Suite 3600
New Orleans, LA 70170
(504) 566-5200
COUNSEL FOR DEFENDANT/APPLICANT:
Union Pacific Railroad Company

H. Alston Johnson, III
Steven J. Levine
Paul LeBlanc
John B. Shortess
Phelps Dunbar LLP
II City Plaza
400 Convention Street, Suite 1100
Baton Rouge, LA 70821
(225) 346-0285
COUNSEL FOR DEFENDANT/APPLICANT:
Union Pacific Railroad Company

Antonio M. Clayton
Clayton, Fruge & Ward
3741 LA Highway 1 South
Port Allen, LA 70767
(225) 344-7000
COUNSEL FOR DEFENDANT APPLICANT:
Union Pacific Railroad Company

Elena A. Pecoraro
Grant F. Freeman
Anna M. Grand
Pecoraro Law
95 Woods Crossing, Suite 100
Lafayette, LA 70508
(337) 266-2233
COUNSEL FOR DEFENDANT/APPLICANT:
Union Pacific Railroad Company

Charles T. Cravins
Frank P. Trosclair, Jr.
Cravins Trosclair
P. O. Drawer 1149
Opelousas, LA 70571
(337) 948-3007
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
John Vallian, et al.
Jody White, et al.

David Wilson
Mark Sparks
Provost Umphrey Law Firm, L.L.P.
P. O. Box 4905
Beaumont, TX 77704
(409) 203-5030
COUNSEL FOR PLAINTIFF/RESPONDENT:
Melvin Portier, et al.

James Gates
Morrow, Gates & Morrow, LLC
P. O. Drawer 219
Opelousas, LA 70571
(337) 942-6529
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
Lucille Brown, et al.
James Brown

D. Blayne Honeycutt
Colt J. Fore
Fayard & Honeycutt
519 Florida Boulevard SW
Denham Springs, LA 70726
(225) 664-0304
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
Daniel Bihm Marcantel, et al.
David Andrus, et al.
Andree Nicole Shakesnider, et al.
John Clifton Goodwin, Sr.
Elsie Goodwin
Ronald Goowdin
Tasha Tolar Carriere, et al
Constance Jones, et al.
Ivy Thibodeaux, Jr.
Joshua Adams, et al.
Mary Ann Goodwin
Joseph Goodwin, III
Sherry N. Fruge, et al.
Wilfred Charles

Travis J. Turner
Turner Law Firm
413 West Main Street
Gonzales, LA 70737
(225) 644-2229
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
Sherry N. Fruge, et al.
Constance Jones, et al.
Joshua Adams, et al.
Andree Nicole Shakesnider, et al.
Allen Guillory, Sr., et al.

Peter F. Caviness
Falgoust, Caviness amd Bienvenu, LLP
505 South Court Street
Opelousas, LA 70571
(337) 942-5812
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
Chad A. Latiolais, et al.
Leon Keith Latiolais, et ux.

James Benton, III
Attorney at Law
10124 Jefferson Highway
Baton Rouge, LA 70809
(337) 302-2402
COUNSEL FOR PLAINTIFF/RESPONDENT:
John Richard, Jr., et al.

Stephanie E. Robin
Moore, Thompson & Lee
6513 Perkins Road
Baton Rouge, LA 70808
(225) 766-1100
COUNSEL FOR PLAINTIFFS/RESPONDENT:
Ronald Goowdin
Joseph Goodwin, III

Alfred P. Boudreaux
Pavy & Bouderaux
116 West Bellevue Street
Opelousas, La 70570
(337) 942-3466
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
Karen Agnes Frank West, et al.
Steven West, Jr.
Ralph Courville, et al.

Walter Clayton Dumas
Dumas & Associates Law Corporation
P. O. Box 1366
Baton Rouge, LA 70821-1366
(225) 383-4701
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
Constance Jones, et al.
Sherry N. Fruge, et al.
Allen Guillory, Sr., et al.
Andree Nicole Shakesnider, et al.
Joshua Adams, et al.

Donald L. Mayeux
Attorney at Law
P.O. Drawer 1460
Eunice, LA 70535
(337) 457-9610
COUNSEL FOR PLAINTIFF/RESPONDENT:
Laura Colomb, et al.

Vyrona Marie Wiltz
Attorney at Law
P. O. Box 216
Krotz Springs, LA 70750-0000
(337) 566-3447
COUNSEL FOR PLAINTIFF/RESPONDENT:
Joseph Papillion

Anna C. Simmons
Diane Mayo
Attorney at Law
943 N. Court Street
Opelousas, LA 70570
(337) 942-3141
COUNSEL FOR PLAINTIFF/RESPONDENT:
Ervin Savoy, et al.

LaDonte A. Murphy
1728 Oak Leaf Boulevard
Opelousas, LA 70570
(337) 942-7070
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
Jawill Murphy, et al.
Wallace Frank, Jr., et al.

Chad P. Pitre
Attorney at Law
111 North Court Street
Opelousas, LA 70570
(337) 942-8587
COUNSEL FOR PLAINTIFF/RESPONDENT:
Southwest Fee and Farm Supply, Inc.

John M. Morrow, Jr.
Jim Gates
Morow, Gates & Morrow, LLC
P. O. Drawer 219
Opelousas, LA 70571
(337) 942-6529
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
Lucille Brown, et al.
James Brown

Michael J. Vallan
Attorney at Law
6090 De Anne Marie Drive
Zachary, LA 70791
(225) 326-6000
COUNSEL FOR PLAINTIFF/RESPONDENT:
Robert Lee Davis, et al.

Timmy J. Fontenot
Attorney at Law
P. O. Box 68
Mamou, LA 70554
(337) 468-4444
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
David Andrus, et al.
Tasha Tolar Carriere, et al
Daniel Bihm Marcantel, et al.

Edmond D. Jordan
Jordan Law Group
385 South 11th Street
Baton Rouge, LA 70802
(225) 590-5957
COUNSEL FOR PLAINTIFF/RESPONDENT:
Anna Guillory, et al

GREMILLION, Judge.

Defendant/Applicant, Union Pacific Railroad Company (Union Pacific),

seeks supervisory writs from a Per Curiam Order signed October 10, 2018, by the

judges of the four divisions of the Twenty-Seventh Judicial District Court, Parish of

St. Landry. The Per Curiam Order required Union Pacific to deposit an additional

$300,000.00 with the court for the payment of outstanding Special Master fees and

costs. For the following reasons, we deny the writ.

FACTUAL AND PROCEDURAL BACKGROUND
This case has been before this court on three prior writ applications in docket

numbers 16-616, 1 17-1048, 2 and 18-272. We have previously summarized the

pertinent facts:

This case arose out of a train derailment which occurred near the
town of Lawtell, Louisiana, on August 4, 2013. The derailed train
spilled hazardous chemicals into the area and the governor
subsequently declared the area a disaster area. As a result of the
accident, thirty-one separate lawsuits were filed against Relator in all
four of the divisions of the Twenty-Seventh Judicial District Court, and
some of the lawsuits include hundreds of individual Plaintiffs. There
are slightly more than 1000 Plaintiffs involved in the litigation, and they
all allege that the train derailment caused them some degree of physical
or emotional harm and inconvenience. The cases were removed to
federal court, but they were later remanded to state court based on the
stipulation that no individual plaintiff’s claim is worth $50,000.00.

After the cases were remanded, the parties agreed to bifurcate the
matter into a liability phase and a causation/damages phase. The cases
were consolidated for the liability phase of the litigation, and Relator
stipulated to liability. However, Relator contests the issues of causation
and damages, and no consolidation has occurred in the
causation/damages phase of the litigation. Instead, via the informal

1
This court found no abuse of discretion in the trial court’s order which severed the claims
involving United States Environmental Services, Inc., from the other consolidated cases. Carriere
v. Union Pacific Railroad Company, 16-616 (La.App. 3 Cir. 10/14/16) (unpublished writ decision).
2
This court found no error in the trial court’s rulings that (1) any party seeking to object to
the Special Master’s report would be required to pay an additional filing fee to have that transcript
of the Special Master’s proceedings filed into the record; and (2) the individual judgments rendered
by the Special Master would be certified final and immediately appealable. Carriere v. Union
Pacific Railroad Company, 17-1048 (La.App. 3 Cir. 1/25/18) (unpublished writ decision), writ
denied, 18-322 (La. 4/16/18), 247 So.3d 115.

consent of the parties, each individual plaintiff’s claim has been severed
for the purposes of trial. Since June 2016, dozens of separate trials have
been held to address causation and damages issues. These individual
trials have been conducted by a court-appointed special master,
Kenneth W. DeJean, who prepares a report and recommendation
regarding the claims of each individual plaintiff.

This writ application involves thirty of the lawsuits. On May 18, 2017, the

four judges of the Twenty-Seventh Judicial District Court issued a Per Curiam Order

which stated that effective May 1, 2017, all Special Master fees were to be paid by

Union Pacific. On May 18, 2017, a second Per Curiam Order was issued which

stated, among other things, that “the trial costs of the court reporter or other court

personnel” would “be borne equally by the parties until such time as there has been

a judgment adopting or modifying the Report and Recommendation of the Special

Master on costs by the District Judge of the particular case.”

Union Pacific filed a motion to vacate those two Per Curiam Orders. As a

result of that motion, the court amended the Per Curiam Order on June 13, 2017.

The amended order stated that:

Effective June 1, 2017, the Court orders that Union Pacific
Railroad is to advance the Special Master costs and fees with an initial
deposit of $30,000.00 due on or before June 30, 2017, and further,
additional deposits are to be made as requested by the Court with the
allocation of final costs and fees of the Special Master to be decided in
the Reports and Recommendations of the Special Master and subject to
review by the Court or on appeal or finality of judgment.

On September 11, 2017, the four judges signed a Per Curiam Order requiring

Union Pacific to deposit an additional $40,000.00. On March 5, 2018, another Per

Curiam Order issued requiring Union Pacific to deposit another $40,000.00. In 18-

272, Union Pacific filed a writ application with regard to the March 5, 2018 order.

This court did not reach the merits of that writ application and denied it, finding that

the errors alleged therein were not properly before the court since they were not first

2

presented to the trial court. Carriere v. Union Pacific Railroad Company, 18-272

(La.App. 3 Cir. 4/30/18) (unpublished writ decision), writ denied, 18-895 (La.

9/28/18), 252 So.3d 934.

On October 10, 2018, a Per Curiam Order 3 was signed that stated:
In connection with the above captioned matters, the 27 th Judicial
District Court issued a Per Curiam on the 18th day of May, 2017
ordering that all Special Master fees and costs were to be paid by the
defendant, Union Pacific Railroad Company.

Presently, the Court has on deposit in the Lawtell Special Master
Fund the sum of $5,014.29. The Court has substantial expenses to pay,
including court reporter fees of $10,084.60 as well as the Special
Master invoices incurred for July, 2017 through September, 2018 in the
sum of $219,783.52. Additionally, trials are ongoing and the additional
deposit is required to complete this calendar year; therefor, considering
the outstanding deficiency;

IT IS HEREBY ORDERED that the defendant, Union Pacific
Railroad Company, deposit an additional $300,000.00 with the Court
for the payment of the outstanding Special Master fees and costs.

Union Pacific filed an ex parte motion to vacate that order. 4 The motion was

denied by order signed on November 5, 2018. That same day, Union Pacific filed

its notice of intent to apply for supervisory writs, and the trial court set a return date

of November 15, 2018.

Union Pacific then filed this writ application in accordance with the trial

court’s return date. We have received two separate oppositions. One was filed on

behalf of the Plaintiffs in trial court docket numbers 14-D-3470-Div. D (the Jody

White set of Plaintiffs), 14-D-3472-Div. A (the Melvin Portier set of Plaintiffs), and

3
The caption notes that the order is issued in docket number 13-C-3656-C “and all other
similar cases arising out of the Lawtell train derailment.”
4
This order is nearly identical to the March 5, 2018 order. The only differences are that
the March 5 order did not specify how much was owed to the Special Master, did not mention
court reporter’s fees, reflected the amount on deposit at the time of the order, and required an
additional deposit of $40,000.00 rather than $300,000.00.

3

14-C-3366-Div. D (the Leroy Brown set of Plaintiffs) (hereinafter collectively

referred to as the White, Portier, and Brown Plaintiffs). The second opposition was

filed on behalf of the following sets of plaintiffs: Tasha Carriere; David Andrus;

Joshua L. Adams; Sherry N. Fruge; Constance Jones; Andree Nicole Shakesnider;

Allen Guillory, Sr.; Wilfred Goodwin; Elsie Goodwin; John Clifford Goodwin;

Joseph Goodwin, III; Mary Ann Goodwin; Ronald Goodwin; and Ivy Thibodeaux,

Jr. (hereinafter referred to as the Carriere Plaintiffs).

The individual trials conducted by the Special Master began on June 26, 2017,

and continued through October 26, 2018. The weekly schedule of trials “will

continue generally into the foreseeable future, until each of the more than 1,000

individual plaintiffs’ claims are tried.” The first six appeals have recently been

lodged in this court under docket numbers 18-901, 18-902, 18-903, 18-904, 18-905,

and 18-906. In those six cases, the trial court has approved the recommendations of

the Special Master awarding damages to particular plaintiffs.

Union Pacific asks this court to set aside the October 10, 2018 Order as

premature because it taxes costs before rendition of a final judgment and because it

is in violation of La.R.S. 13:4165 and La.R.S. 13:961. Union Pacific also asks that

this court issue an order to the district court and/or the Special Master to refund the

$300,000.00.

Union Pacific asks for expedited consideration of this writ application,

alleging that such consideration is warranted “because of the significant prejudice

the challenged provisions of the October 10, 2018 Order impose upon Union Pacific,

along with its patent illegality when measured against the plain language of

Louisiana statutory law.” We note that Union Pacific has not complied with

4

Uniform Rules―Courts of Appeal, Rules 4‒4(B) and 4‒5(C)(12), which require that

requests for expedited consideration be specially marked on the cover sheet and that

the application contain a specific statement of the grounds setting forth the

justification for the request as well as a specific date by which a ruling is sought.

Nonetheless, we find that expedited consideration is warranted given the number of

cases involved, the trials that are occurring or will soon occur, and the pending

appeals.

SUPERVISORY RELIEF

The denial of a motion to vacate is an interlocutory order. Donnie Derouen

Electric Service v. McKay, 406 So.2d 734 (La.App. 3 Cir. 1981). “Ordinarily, an

application for supervisory writ is the appropriate vehicle for the review of an

interlocutory judgment.” McGinn v. Crescent City Connection Bridge Auth., 15-

165, p. 4 (La.App. 4 Cir. 7/22/15), 174 So.3d 145, 148.

The Plaintiffs contend that this writ application is untimely since the order

that Union Pacific is really contesting is the one issued on June 13, 2017. The

Plaintiffs contend that the motion to vacate filed by Union Pacific with regard to the

October 10, 2018 Order “does nothing to cure the fact that Union Pacific failed to

timely raise the issues of which it complains in June 2017, when the true ruling at

issue was rendered.”

We find the writ application timely. The October 10, 2018 Order differs from

the prior orders because it includes the fees of the court reporter in the amount to be

paid by Union Pacific, even though prior orders stated that the costs of the court

reporter and other court personal would be borne equally by the parties until there

was a judgment adopting or modifying the recommendation of the special master.

5

The court reporters are working with the Special Master when the individual trials

are conducted. The May 18, 2017 Order provided that the court reporters’ fees

would be borne equally by the parties until a final judgment was issued. But that

order was amended, and the amended order did not address the fees of the court

reporters. Thereafter, the first order specifically to address the court reporters’ fees

was the October 10, 2018 Order. We find that, much like in Lafferty v. Allstate

Insurance Co., 36,119, 36,155, p. 3 (La.App. 2 Cir. 2/28/02), 806 So.2d 1000, 1003,

writ denied, 02-718 (La. 3/22/02), 811 So.2d 938, the October 10 Order “effectively

supplanted” the previous order so that this writ is timely.

Furthermore, this court stated that it did not reach the merits of the prior writ

application because Union Pacific did not first raise the issues in the trial court.

Union Pacific has now raised the issues in the trial court in the motion to vacate.

An order granting a motion for security for costs is an interlocutory judgment.

Johnson v. Kerry Brown, LLC, 06-925 (La.App. 5 Cir. 3/13/07), 956 So.2d 3. The

per curiam orders in this case are similar to an order requiring security for costs and

are interlocutory because they do not address the merits of the claims. La.Code

Civ.P. art. 1841. An interlocutory ruling is “subject to change or revision at any time

prior to final judgment on the matter.” Kilber v. PNK (Lake Charles), LLC, 16-173,

p. 6 (La.App. 3 Cir. 9/28/16), 201 So.3d 943, 947. In this instance, the trial court

did change the substance of the prior per curiam orders. Union Pacific’s failure to

seek supervisory relief from the first ruling is of no moment because it has been

changed, and a new order has been issued. See Regions Bank v. Weber, 10-1169

(La.App. 4 Cir. 12/15/10), 53 So.3d 1284.

6

COURT COSTS
“The discretion of the trial court to assess court costs is vast[,] and is not

subject to reversal unless there is an abuse of discretion.” Farrar v. Whaley, 16-790,

p. 19 (La.App. 3 Cir. 2/1/17), 211 So.3d 449, 461, writ denied, 17-409 (La. 4/13/17),

218 So.3d 626. Union Pacific argues that it is entitled to a de novo review because

it is alleging errors of law in the trial court’s application of the relevant statutes.

Alexander v. Menard, 15-910 (La.App. 3 Cir. 9/28/15), 215 So.3d 766. If the trial

court incorrectly applies an applicable statute, it is a legal error. Platinum City,

L.L.C. v. Boudreaux, 11-559 (La.App. 3 Cir. 11/23/11), 81 So.3d 780. “Errors of

law are reviewed de novo.” Fontenot v. Town of Mamou, 18-301, p. 3 (La.App. 3

Cir. 12/19/18), ___ So.3d ___, ___.

The Special Master was initially appointed to oversee the liability phase of

this litigation. When that phase was concluded by Union Pacific’s stipulation that it

was solely liable for the train derailment, the trial court re-appointed the Special

Master. In the liability phase, the Plaintiffs and Union Pacific paid the Special

Master in advance of the judgment, with each side bearing fifty percent of the fees.

But when the damages phase began, the trial court ordered Union Pacific to pay one

hundred percent of the Special Master’s compensation and issued a series of Per

Curiam Orders requiring Union Pacific to deposit money with the court to pay the

Special Master.

Louisiana Revised Statutes 13:4165 provides for the appointment, duties, and

compensation of special masters. According to the statute, the compensation “shall

be reasonable, fixed by the court as limited by Subsection A . . . , and taxed as costs

of court.” La.R.S. 13:4165(D). Louisiana Code of Civil Procedure Article 1920

states that “[u]nless the judgment provides otherwise, costs shall be paid by the party

7

cast, and may be taxed by a rule to show cause. Except as otherwise provided by

law, the court may render any judgment for costs, or any part thereof, against any

party, as it may consider equitable.”

“The default rule is that the party cast in judgment is liable for all costs.”

Davis v. State ex rel. DOTD, 11-1386, p. 2 (La.App. 3 Cir. 4/11/12), 87 So.3d 396,

397. The jurisprudence recognizes that “‘in the absence of some reason in equity or

otherwise to control, costs generally follow the final judgment in favor of the

prevailing party.’” Johnson v. Marshall, 202 So.2d 465, 469 (La.App. 1 Cir.), writ

refused, 251 La. 217, 203 So.2d 555 (La.1967), quoting Connolly v. Commercial

National Bank in Shreveport, 89 F.Supp. 976, 978 (W.D.La. 1950). This court has

also held that “[t]he fixing of costs should not be determined prior to final

adjudication of the suit.” Savoy v. Doe, 315 So.2d 875, 876 (La.App. 3 Cir. 1975).

Louisiana Revised Statutes 13:4522 (footnote added) states, in part, that “[t]he

defendant before pleading in all cases may by motion demand and require the

plaintiff or intervenor to give security for the cost in such case[.]”5 In McGlynn &

Glisson v. Donahue, 17-183 (La.App. 1 Cir. 5/18/17) (unpublished writ decision),

the court recognized that neither La.R.S. 13:1215 nor La.R.S. 13:4522 requires the

defendant to post security for costs, reversed the trial court’s ruling, and denied the

plaintiff’s ex parte motion seeking to have the defendant post security for costs.

Based on this, Union Pacific argues that the Twenty-Seventh Judicial District Court

Judges had no authority to order it, as a non-consenting defendant, to pay the

5
Orleans Parish has its own provision, La.R.S. 13:1215, dealing with security for costs,
and La.R.S. 13:4165 is inapplicable in Orleans Parish. Louisiana Revised Statutes 13:1215 also
states that the defendant may require “the plaintiff or party prosecuting the cause to post a bond or
other security.” There is no provision allowing the plaintiff to demand security.

8

compensation of the Special Master before final judgments taxing that as costs have

been rendered.

The Carriere Plaintiffs argue that because Union Pacific has been held to be

solely at fault in causing this accident, it is solely responsible for the costs. Union

Pacific counters that the stipulation was to liability only with a reservation of its right

to contest the existence of any damages caused by the derailment. Accordingly,

Union Pacific argues that if there are no damages, it should not have to pay costs.

In Donavan v. Jones, 26,883 (La.App. 2 Cir. 6/21/95), 658 So.2d 755, writs

denied, 95-1786, 95-1891 (La. 11/3/95), 661 So.2d 1379, the trial court allocated

forty percent of fault to one defendant, ten percent to the second defendant, twenty-

five percent to the third defendant, and twenty-five percent to the plaintiff. It then

assessed fifty percent of the costs to the first defendant and fifty percent to the second

defendant. The second circuit upheld the allocation of fault but reversed the trial

court’s assessment of costs and re-assessed the costs in the same division as the

allocation of fault. The second circuit found that since the trial court provided no

explanation for the assessment of fault, there was “no reason to deviate from the

usual allocation of costs.” Id. at 768, citing Broussard v. Delchamps, Inc., 571 So.2d

855 (La.App. 3 Cir. 1990), writ denied, 575 So.2d 370 (La.1991).

But, in Davis, 87 So.3d 396, a panel of this court found that the trial court

acted within its discretion when it assessed one hundred percent of the costs to the

DOTD even though the DOTD had been found to be only twenty-five percent at

fault in the accident. There were three consolidated suits arising out of the accident,

and the driver-plaintiff was killed in the accident. The parents of the guest passenger

filed a motion to have one hundred percent of the costs assessed to the DOTD, but

9

the DOTD argued that it should only be assessed with twenty-five percent of the

costs. The trial court, in assessing one hundred percent of the costs to the DOTD,

reasoned that no percentage of fault could have been apportioned to the guest

passenger and that the trial court declined to assess costs to the surviving children of

the driver. That ruling was affirmed by this court, which noted that “[t]he trial court

gave a reasoned explanation for its deviation from the default apportionment.” Id.

at 399.

In Davis, this court discussed Donavan and another case from the second

circuit, Starr v. State ex rel. DOTD, 46,226, 46,227 (La.App. 2 Cir. 6/17/11), 70

So.3d 128, writs denied, 11-1835, 11-1952, 11-1625 (La. 10/21/11), 73 So.3d 826.6

In Starr, where the DOTD was the only defendant, the second circuit affirmed the

assessment of one hundred percent of the costs to the DOTD even though it had been

found to be only twenty-four percent at fault. The driver in Starr, one of several

plaintiffs, was the only plaintiff to be apportioned any fault.

Union Pacific asserts that there has been no record concerning what services

have been rendered and paid for 7 and that by the time a final judgment is rendered,

Union Pacific will have paid all of the costs even where the plaintiff may not recover

any damages. In that case, Union Pacific argues that it will have no avenue to

6
Starr, 70 So.3d 128, cited Davis v. State, DOTD, 94-308 (La.App. 3 Cir. 12/7/94), 647
So.2d 552, writ denied, 95-34 (La. 1/27/95), 649 So.2d 382, which is a completely different case
than Davis, 87 So.3d 396. In Davis, 647 So.2d 552, this court upheld the trial court’s assessment
of all costs to the DOTD, which was apportioned only forty percent of the fault in a two-vehicle
accident where the defendant driver settled before trial and was apportioned sixty percent of the
fault at trial.
7
Union Pacific contends that it has been given only an accounting from the court regarding
checks issued from the Special Master Account but was not given the underlying invoices for any
other explanation for the payments.

10

recover the funds except to bring a suit against the Special Master and individual

official court reporters. Union Pacific asserts that this not a viable remedy.

The case at bar is different from all of these cases because damages were

found in all the cited cases while no damages have yet been proven in these Union

Pacific derailment cases. In Fair v. Empire Fire & Marine Insurance Company, 579

So.2d 1105 (La.App. 2 Cir. 1991), the second circuit found that the trial court did

not abuse its discretion in assessing one hundred percent of the costs to the plaintiff

where the jury found the defendant to be at fault in causing an accident but also

found that the impact did not cause any damages. The court noted that under

La.Code Civ.P. art. 1920, the trial court “may render judgment for costs, or any part

thereof, against any party as it may consider equitable.” Fair, 579 So.2d at 1108.

In the stipulation of liability signed by Union Pacific, Union Pacific agreed

that it would “not at trial or on appeal urge a defense or present any evidence to

prove that the derailment was the fault of any other party or entity or Act of God.”

Union Pacific also argues that the fees of the Special Master are to be paid

directly to the Special Master rather than into a private account from which the

judges pay the Special Master. Union Pacific argues that the method utilized by the

trial court takes away its right to argue that the fee is unreasonable and that the fee

must be reasonable under La.R.S. 13:4165. However, there is nothing preventing

Union Pacific from asking for an accounting from the court or from asking the court

to see, or to be provided with copies of, the invoices submitted by the Special Master

or from filing a rule to traverse the amounts claimed by the Special Master.

Louisiana Revised Statutes 13:4165(D) states that “[t]he master’s

compensation shall be reasonable, fixed by the court as limited by Subsection A of

11

this Section, and taxed as costs of court.” There are very few reported cases dealing

with the fees of the special master. In Bezou v. Bezou, 15-1879, p. 10 (La.App. 1

Cir. 9/16/16), 203 So.3d 488, 496, writ denied, 16-1869 (La. 12/5/16), 210 So.3d

814 (emphasis in original), the first circuit interpreted La.R.S. 13:4165(D) as

follows: “Section 4165(D) clearly states that the trial court shall reasonably fix the

compensation of the special master and tax that compensation as costs of court.”

There is nothing in the statute which prevents the method employed by the trial court

in this case.

Based on the above-cited cases and the stipulation, the trial court did not

commit an error of law in its application of the relevant statutes to this case when it

assessed one hundred percent of the Special Master’s costs to Union Pacific or when

it required that the fees be advanced through deposits to the special account.

COURT REPORTER FEES

Finally, Union Pacific argues that La.R.S. 13:961(E) and (F) provide that a

court reporter’s fee is to be paid out of either the general fund of the parish or by the

parties as transcripts are requested and prepared. Union Pacific recognizes that there

is an exception when the fee of the court reporter is part of the costs associated with

a deposition taken for use at trial. In that case, the fee of the court reporter can be

taxed as court costs. La.R.S. 13:4533.

The Plaintiffs explain that the Special Master’s function is to conduct the

individual trials and prepare a recommendation to the judge assigned to that case.

As such, it is essential that there be an accurate record of the proceedings. But, while

the individual trials are being conducted, the judges from the Twenty-Seventh

Judicial District Court and their official reporters are required to carry on the

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regularly scheduled trials, motions, etc. That means that the Special Master must

employ independent court reporters to work in the train derailment trials. According

to the Plaintiffs, then, the costs of the independent court reporters are included within

the fees of the special master and should not be subject to the restriction contained

in La.R.S. 13:961(E) and (F). If they are considered fees of the Special Master in

this case, then the court reporter’s fees can be taxed as court costs since La.R.S.

13:4165 specifically states that the fees of the special master “shall” be “taxed as

costs of court.”

“Th[e] equitable power to allocate costs is limited to costs that positive law

identifies as taxable.” Certain St. Bernard Parish Government Computer Disks v.

St. Bernard Parish Government ex rel. Ponstein, 13-1054, p. 3 (La.App. 4 Cir.

12/18/13), 130 So.3d 56, 59, writ denied, 16-1026 (La. 9/16/16), 201 So.3d 252.

Neither side points to any jurisprudential authority for its position. We have

found no reported cases that were directly on point. However, La.R.S. 13:961 speaks

to “official court reporters” who receive a monthly salary from the general fund of

the parish or parishes which they serve. Therefore, as noted by Union Pacific, the

fees of the court reporter are considered to be a “public cost.” Independent court

reporters are being employed by the Special Master in this case, and it is unknown

whether the court reporters used in this case are the ones who are regularly employed

in the Twenty-Seventh Judicial District Court. The fees of the court reporters in this

case should not be considered as a public cost because they are being employed by

the Special Master for the specific purpose of conducting the trials in this train

derailment case where Union Pacific has admitted liability. Therefore, this portion

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of Union Pacific’s writ application is denied since the trial court made no error in its

refusal to apply La.R.S. 13:961.

CONCLUSION

We find no error in the trial court’s ruling, which assesses one hundred percent

of the Special Master’s fees and costs, including the fees of the court reporters in

conducting the individual trials, and which requires advance deposits by Union

Pacific into a special account set up for payments to the Special Master by the

Twenty-Seventh Judicial District Court. All costs of this appeal are assessed to the

Defendant/Applicants, Union Pacific Railroad Company.

WRIT DENIED.

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