Privacy (Or Lack Thereof) in an Increasingly Digital Age

Louisiana's long relationship with oil and gas has been profitable for both the oil and gas industry and Louisiana's citizens. However, the nature and extent of the duty to restore the land after drilling has often been a disputed and litigated issue. Recently, the Louisiana Supreme Court's decision in State v. Louisiana Land and Exploration Co., 2012-0884 (La. 1/30/13), - So.3d - added clarity to the law by establishing that the presence of a Court-approved remediation plan does not create a "cap" on damages.

The Louisiana Legislature passed La. R.S. 30:29 to provide a procedure for the clean-up, or "remediation," of oilfield, exploration and production sites. Before this statute, a plaintiff who was awarded monetary "remediation" damages to restore land was not obligated to actually use the money to perform remediation work. The purpose of La. R.S. 30:29 was to ensure that any money awarded to remediate polluted sites be used for this purpose. By the statute, any such award is to be deposited with the Court and spent under a Court-approved plan.

Even after the statute, it remained unclear whether a Court's approval of a remediation plan created a "damages cap" whereby the plaintiff landowner could not recover in excess of the plan. This issue was resolved in State v. Louisiana Land and Exploration Co.

The suit involved the State's action for remediation of land owned by the State and managed by the Vermilion Parish School Board. The property was allegedly polluted by oil and gas exploration performed pursuant to a mineral lease. Consistent with recovery allowed in earlier cases, the State sought to recover damages in excess of the remediation costs. Attorneys for one of the defendants filed a motion for partial summary judgment and argued that, under La. R.S. 30:29, the plaintiffs did not have a right to seek damages in excess of the amount necessary to complete the Court's remediation plan

The trial court held the plaintiffs could only recover damages equal to the amount listed in the Court's remediation plan. The appellate court overturned the trial court's decision and held that the landowner could recover damages in excess of the Court's plan, whether those damages are based on a contract or tort law. The Supreme Court affirmed the appellate court's decision and confirmed that there is no "cap" on damages.

Before and after State v. Louisiana Land and Exploration Co., an award for damages in excess of the remediation plan is available and arises from a private right in either contract or tort law. Contract damages are permitted if they are expressly provided by the contract. If contract damages are not available, tort damages may be recovered if the plaintiff shows that the defendant acted unreasonably or excessively in its exploration of gas, oil or minerals. See Terrebonne Parish School Bd. v. Castex Energy, Inc., 2004-0968, p. 10 (La. 1/9/05), 893 So.2d 789.

In view of the State v. Louisiana Land and Exploration Co. decision, oil and gas companies should be aware that they face exposure in excess of the statutory remediation plan, making them potentially liable for far more than just clean-up.

The Louisiana Supreme Court recently held that failure to pay filing fees necessary to add a defendant does not invalidate the proceeding as to other defendants. Prior to the ruling, Louisiana courts held that a failure to pay for one defendant invalidated the entire proceeding.

In Kirt v. Metzinger 2019-C-1162 (La. 04/03/20), plaintiffs requested a medical review panel after the death of their mother due to complications after surgery. Plaintiffs named three defendants—two doctors and the hospital. A letter from the Patient’s Compensation Fund Oversight Board (PCF) was mailed to the plaintiffs, confirming that the defendants were qualified under the Louisiana Medical Malpractice Act, and informing the plaintiffs that they were required by La. R.S. 40:1231.8 to pay a filing fee of $100 per named defendant within forty-five days of the mailing of the letter. Plaintiffs responded, requesting to add two additional defendants to the panel, one of whom was an unidentifiable nurse. Plaintiffs also included payment of $500.

The PCF responded that it was unable to add the nurse without proper identification. Three weeks later, plaintiffs notified the PCF they were also unable to identify the nurse. Upon request, Parish Anesthesia was added to the panel instead. Nearly five months later, plaintiffs provided the PCF with the identity of the nurse in question and requested she be added. The PCF sent confirmed the addition and requested another $100 filing fee which was never paid. Nevertheless, the medical review panel thereafter determined that none of the defendants, including the nurse, breached their standard of care. Suit followed against all defendants.

The defendants moved for summary judgment, arguing that the failure to pay the additional filing fee invalidated the proceeding as to all defendants. The trial court granted this motion, and the appellate court affirmed. Reversing the lower courts, the Supreme Court found that the failure to pay the additional $100 filing fee did not invalidate the entire proceeding. The court observed that separate confirmation letters sent by the PCF provided a different forty-five day period during which to pay the filing fee tied to each individual defendant.

The Kirt court stated: “[t]he notion of ‘one filing fee’ for every panel proceeding cannot be reconciled with the different payment deadlines that arise when the PCF sends separate letters confirming defendants’ qualified status. A single filing fee cannot be subject to different payment deadlines.” The court dismissed only the nurse and remanded the remainder of case to the lower courts.

Chad A. Sullivan is a partner with Keogh, Cox & Wilson, Ltd. Prior to becoming an attorney, he worked as a licensed Registered Nurse. He utilizes his background in nursing on a daily basis in his law practice that primarily focuses on automobile liability, medical malpractice, nursing home litigation, healthcare professional licensure and discipline, and products liability.

Preparing for a trial is a tense and stressful process for attorneys and their clients. Sometimes, during trial preparation, a crucial piece of evidence can come to light that may push a case from a path towards trial to a path towards a settlement agreement. A “settlement” or “compromise” under Louisiana law is just that – an agreement between the parties to settle the dispute raised in the lawsuit, usually with the exchange of a sum of money. Often, settlements are reached in the weeks leading up to trial or even on the courthouse steps.

This type of scenario occurred in Nola Title Company, LLC v. Archon Information Systems. While in the thick of trial preparation, audio recordings from one of the parties were discovered. That party concluded this evidence would be prejudicial to its case at trial, which spurred settlement negotiations. The parties eventually agreed to a compromise and notified the court of the settlement via an email to the judge’s law clerk. The next day, the attorneys reported to court and verbally outlined the terms of the settlement agreement on the official court record.

Two weeks later, the defendants hired new counsel. Two months after that, counsel for the plaintiff forwarded the formal settlement documents to memorialize the agreement that was made between the parties and entered into the court’s record. However, the defendants refused to sign the paperwork and did not timely make the payments that previously were agreed upon. Therefore, the plaintiff filed a motion to enforce the settlement agreement.

In opposition to the motion to enforce, the defendants argued: 1) that their prior counsel did not have authority to enter into the settlement agreement; and 2) that the agreement on the record of the court was invalid because it did not include a provision about the audio recording, which the defendant claimed was a key element of the agreement between the parties. After an evidentiary hearing, the trial court found that the settlement that was stated on the record was an enforceable settlement agreement.

The Louisiana Court of Appeals for the Fourth Circuit affirmed the ruling of the trial court. In its opinion, the appellate court includes a summary of the law governing settlements in Louisiana. After a thorough review of the applicable law, the court came to the following conclusions:

• The settlement agreement on the record of the court was a binding settlement agreement, even if the parties contemplated a future formal written agreement;
• When a compromise is placed on the record, the recital must include full disclosure of the material terms;
• Any “missing terms” from the recorded settlement agreement were not a material element of the settlement; and
• The defendants’ prior counsel had authority to enter into the settlement as written.

Based upon the court’s ruling, if the parties have a meeting of the minds and settlement terms are entered on the trial court record, there are no “do-overs” or “take-backs.” It is important to “make sure you are sure” when entering the crucial courthouse steps settlement agreement.

References:

Nola Title Company, LLC v. Archon Information Systems, et. al., 2022-CA-0967 (La. App. 4 Cir. 4/13/23), 360 So. 3d 166.