NO CA-0177 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA * * * * * * * VERSUS

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1 OLIVIA BAILEY, ON BEHALF OF THE DECEASED, WILLIAM BROWN, GRACE GUIDRY, ON BEHALF OF THE DECEASED, RAYMOND J. GUIDRY, MAXINE P. HARRIS, ON BEHALF OF THE DECEASED, DAMION D. HARRIS, ET AL. VERSUS EXXON MOBIL CORPORATION, EXXONMOBIL OIL CORPORATION, CHEVRON USA, INC., CONOCOPHILLIPS COMPANY, MARATHON OIL COMPANY, SHELL OFFSHORE, INC., ET AL. NO CA-0177 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO , DIVISION N-8 HONORABLE ETHEL SIMMS JULIEN, JUDGE JAMES F. MCKAY III JUDGE (Court composed of Judge James F. McKay III, Judge Max N. Tobias, Jr., Judge Daniel L. Dysart) FRANK M. BUCK, JR. MIKALIA M. KNOTT 757 St. Charles Avenue Suite 201 New Orleans, Louisiana JEREMIAH A. SPRAGUE TIMOTHY J. FALCON FALCON LAW FIRM 5044 Lapalco Boulevard Marrero, Louisiana Counsel for Plaintiffs/Appellants

2 GLEN M. PILIÉ MARTIN A. STERN VALERIA M. SERCOVICH RAYMOND P. WARD ADAMS AND REESE LLP 701 Poydras Street 4500 One Shell Square New Orleans, Louisiana Counsel for Exxon Mobil Oil Corporation, Exxon Mobil Corporation, and Humble Incorporated, Defendants/Appellees MARY S. JOHNSON JILL T. LOSCH JOHNSON GRAY MCNAMARA, LLC Marion Lane Suite 300 Mandeville, Louisiana THOMAS M. MCNAMARA JOHNSON GRAY MCNAMARA, LLC P.O. Box Lafayette, Louisiana CHAD J. MOLLERE S. SUZANNE MAHONEY JOHNSON GRAY MCNAMARA, LLC 650 Poydras Street Suite 1905 New Orleans, Louisiana ROY J. RODNEY, JR. RODNEY & ETTER, LLC 620 North Carrolton Avenue New Orleans, Louisiana Counsel for Shell Offshore Inc., Shell Oil Co., and SWEPI LP, Defendants/Appellees MICHAEL R. PHILLIPS LOUIS M. GROSSMAN KEAN MILLER HAWTHORNE D'ARMOND McCOWAN & JARMAN, L.L.P. 909 Poydras Street Suite 1400 New Orleans, Louisiana Counsel for Chevron U.S.A. Inc., Defendant/Appellee

3 RICHARD S. PABST JULIE PARELMAN SILBERT STEPHEN HANEMANN KEAN MILLER HAWTHORNE D'ARMOND McCOWAN & JARMAN 909 Poydras Street Suite 1400 New Orleans, Louisiana Counsel for Marathon Oil Co., Defendant/Appellee DEBORAH D. KUCHLER JANIKA D. POLK MICHELE HALE DESHAZO KUCHLER POLK SCHELL WEINER & RICHESON, LLC 1615 Poydras Street Suite 1300 New Orleans, Louisiana Counsel for ConocoPhillips Co., Defendant/Appellee RENE' A. CURRY, JR. CHRISTOFFER C. FRIEND MOLLY STEELE SHANNON C. BURR CURRY & FRIEND, PLC 228 St. Charles Avenue 1200 Whitney Bank Building New Orleans, Louisiana Counsel for Occidental Chemical Corp. and Placid Oil Co., Defendants/Appellees RONALD A. JOHNSON BETTYE A. BARRIOS GAVIN H. GUILLOT JOHNSON JOHNSON BARRIOS & YACOUBIAN 701 Poydras Street Suite 4700 New Orleans, Louisiana Counsel for BP Exploration & Production Inc., American Oil Company, and BP Corporation North America Inc., Defendants/Appellees AFFIRMED

4 The plaintiffs, Olivia Bailey, on behalf of the deceased, William Brown, et al, appeal the trial court s maintaining of an exception of no cause of action for punitive damages in a wrongful death claim filed by the defendants, Exxon Mobil Corporation, et al. We affirm. FACTS AND PROCEDURAL HISTORY On December 20, 2002, over 700 named plaintiffs filed suit in Warren Lester, et al v. Exxon Mobil Corp., et al, No , in Civil District Court for Orleans Parish. The plaintiffs alleged that either they or their decedents were exposed to naturally occurring radioactive material (NORM) at over 600 pipeyards throughout Louisiana, six other states, and overseas. The plaintiffs also alleged entitlement to punitive damages under former Louisiana Civil Code Article The trial court ordered the cases be tried in various flights. As one of these flights progressed to trial, certain defendants filed a motion in limine to exclude evidence of damages attributable to the deaths of persons alleged to have 1 Former La. C.C. art , effective September 3, 1984 and repealed April 16, 1996, provided for punitive damages if it [were] proved that plaintiff s injuries were caused by the defendant s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances. 1

5 been exposed to NORM based on the fact that no wrongful death claim had been pleaded either in the original or in any of the numerous supplemental and amending petitions filed. Thereafter, the plaintiffs filed two nearly identical petitions, both styled Olivia Bailey, et al v. Exxon Mobil Corp., et al. One was filed in the 24 th Judicial District Court, Jefferson Parish; the other was filed in Civil District Court, Orleans Parish and is the case currently before this Court. The plaintiffs then pursued their wrongful death claims in the Bailey actions and their survival claims in the Lester action. In the instant case, the defendants filed numerous exceptions, including peremptory exceptions of no cause of action for punitive damages for plaintiffs wrongful death claims based on this Court s holding in Bulot v. Intracoastal Tubular Services, Inc., (La.App. 4 Cir. 11/3/04), 888 So.2d The trial court sustained the defendants exceptions of no cause of action for punitive damages in a wrongful death case. In its written judgment, the trial court designated this judgment as final under Louisiana Code of Civil Procedure Article 1915 (B). 2 It is from this judgment that plaintiffs now appeal. DISCUSSION In their sole assignment of error, the plaintiffs contend that the district court erred in granting defendants-appellants exceptions of no cause of action for punitive damages in a wrongful death claim. Therefore, the issue before this Court 2 Although the defendants objected to the trial court s designation of its ruling on the exception of no cause of action as a final judgment, we will address the issue of whether punitive damages can be awarded in a wrongful death action on the merits. 2

6 is the purely legal question of whether the plaintiffs claims for punitive damages in a wrongful death action are precluded by Bulot. 3 In Bulot, the widow and children of a deceased employee brought survival and wrongful death actions against his employer. They alleged that the deceased s cancer was the result of occupational exposure to radioactive waste while cleaning oilfield pipes. Id. The trial court granted the employer s motion for summary judgment on the punitive damages claims. His widow and children then appealed. This Court held that there were genuine issues of material fact which precluded summary judgment on the punitive damages claim in the survival action. Id. at This Court also held that punitive damages could not be recovered by way of a wrongful death action. Id. at Therefore, the plaintiffs in the instant case are precluded from recovering damages in a wrongful death action. Accordingly, we find no error in the trial court s maintaining of the defendants exception of no cause of action. CONCLUSION For the foregoing reasons, we affirm the trial court s judgment. AFFIRMED 3 Further developments in both the court below as well as in the 24 th Judicial District Court occurred after the trial court s ruling on the exception of no cause of action. The developments pertain to issues of prescription and res judicata. These issues are not dealt with in the judgment on appeal currently before this Court and will not be discussed in this opinion. 3