Withrow v. Chevron is another Louisiana legacy lawsuit, this one claiming that defendants Chevron and Vernon E. Faulconer, Inc., and their predecessors, improperly disposed of toxic and hazardous oilfield wastes in unlined earthen pits causing leaks, spills and other surface and subsurface damages and contaminating the soil and groundwater.
Defendants’ filed a Rule 12(b)(6) motion to dismiss the whole shebang for failure to state a claim. To defeat the motion the plaintiff had to plead specific facts, not mere conclusory allegations or legal conclusions masquerading as factual conclusions. On the other hand, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
This the court did not offer much in the way of reasoning for its rulings; there will be plenty of time for that. The order is helpful as a laundry list of claims often asserted by legacy plaintiffs.
The court considered the following claims:
Civil Code Art. 667 absolute liability: Defendants claimed oil and gas E&P activities are not ultrahazardous. They can be and routinely are performed safely with the exercise of reasonable care. Plaintiff responded that it acquired the land before 1996 and an amendment limiting the definition of ultrahazardous activity did not apply to pre-1996 activities.
Mineral Code Article 11: The owner of land burdened by mineral rights and the owner of the mineral rights must exercise their respective rights with reasonable regard for those of the other. The court declined to dismiss these two claims; their viability will be developed in discovery.
Civil Code Arts 2317 and 2322, premises liability: Defendants argued Art. 2322 does not apply because the unidentified equipment that Chevron owns is not a “building” as required. The Court was “not inclined to dismiss these claims at this point” (its phrasing throughout the order).
Civil Code 4864, for civil fruits from property. Defendants framed the question to be whether the plaintiff is seeking recovery of profits earned or costs avoided. Plaintiff asserted that a lessee is impliedly obligated by law to remediate to pre-lease condition less normal wear and tear and to remediate damage resulting from unreasonable, negligent or excessive operations. This pleading was sufficient to withstand the challenge.
Civil Code Art 2688 failure to give notice was dismissed.
Land loss, subsidence and cost of backfilling canals. The court allowed this claim to stand. These were not causes of action but items of damage, and the defendants will have the opportunity to refute them at trial.
“Act 312” (La. R.S 30:29) does not create or deprive a plaintiff of a cause of action and withstood the challenge.
Continuing tort, trespass and nuisance. The court accepted plaintiff’s argument that whether the tort is continuing or otherwise is an issue of prescription. Also, as long as an oilfield pit remains open, torts committed by virtue of the construction or use of the pit continue.
Section 324A, Restatement (Second) of Torts, the Good Samaritan Doctrine. The complaint alleged sufficient facts to survive the challenge. Discovery will determine whether there is proof to support the allegations.
Mineral Code Art. 134 imposes a third-party beneficiary obligation on lessee/defendants as a matter of law said the plaintiff. This claim passed the Rule 12(b)(6) sufficiency test.
Plaintiff’s claim for unjust enrichment could not proceed because there are viable tort, contract and Mineral Code claims. Plaintiff agreed to dismiss.
from Texas Bar Today https://ift.tt/wY1WE9Z
via Abogado Aly Website
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