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In Chustz, we found that "although [article 2315.3] does not define hazardous or toxic substances, the words must be given their generally accepted meaning.
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No. 95-CC-0356
November 6, 1995 Page 1
ON WRIT OF REVIEW TO THE COURT OF APPEAL, FIRST CIRCUIT, STATE OF LOUISIANA
Christopher DtPont Matchett, Esq., Charles Michael Futrell, Esq., MATCHETT, VERBOIS, FUTRELL HENCHY: Counsel for Applicant.
Hon. Richard P. Ieyoub, Attorney General, R. Monroe Garner, Esq., J. J. Mckernan, Esq., C. Jerome D'Aquila, Esq., Gordon J. McKernan, Esq., Counsel for Respondent.
James Julian Coleman, Esq., Peggy Wallace, Esq., Johnny Afton Poindexter, Esq., Counsel for Business Council of New Orleans, River Region, Independent Liquidation Association, Dyn-McDermott Petroleum Operation (Amicus Curiae).
Christopher J. Dicharry, Esq., Cynthia Tripi, Esq., Daniel R. Barney, Esq., Robert Digges, Jr., Esq., Counsel for American Trucking Association (Amicus Curiae).
Christopher J. Dicharry, Esq., Cynthia Tripi, Esq., Counsel for Louisiana Motor Transport, Interstate Truckload C.C. (Amicus Curiae).
Larry M. Roedel, Esq., David A. Woolridge, Jr., Esq., Counsel for Canal Indemnity Co., Canal Insurance Co., (Amicus Curiae).
Joel L. Borrello, Esq., Sam A. LeBlanc, III, Esq., Richard J. Kernion, Jr., Esq., Counsel for The Chamber of New Orleans, The River Region, (Amicus Curiae).
Lawrence S. Kullman, Esq., Counsel for Louisiana Trial Lawyers Association (Amicus Curiae).
Joel L. Borrello, Esq., Counsel for Shell Oil Company, Mobile Oil Corp., Missouri Pacific Railroad, Union Pacific Railroad, Rollins Environmental Service, (Amicus Curiae).
Terrill Wayne Boykin, Esq., Counsel for Mercer Transportation Inc. (Amicus Curiae).
Andrew A. Lemmon, Esq., Elizabeth S. Hardy, Esq., Counsel for Trial Lawyers Association (Amicus Curiae).
John Steven Hunter, Esq., Daryl J. Daigle, Esq., Counsel for Contract Freighters, Inc. (Amicus Curiae).
Walter R. Metz, Jr., Esq., Richard S. Reiser, Esq., Counsel for Werner Enterprises Inc. (Amicus Curiae).
Bobby Stephen Gilliam, Esq., Counsel for Kansas City Southern Railroad (Amicus Curiae).
Sherman G. Fendler, Esq., Mark D. Latham, Esq., Counsel for BP Exploration Oil Inc., Exxon Corporation (Amicus Curiae).
David Chalavon Forrester, Esq., Counsel for National Association Independent Insurance (Amicus Curiae).
LeRoy Allen Hartley, Esq., Kara M. Miller, Esq., Counsel for Lincoln General Insurance Co. (Amicus Curiae).
Michael Gregory Stag, Esq., Counsel for Frozen Food Express Industries (Amicus Curiae).
After a collision between John S. Chustz, Sr.'s pickup truck and J. B. Hunt Transport, Inc.'s eighteen wheeler truck, Chustz died. The truck was hauling cases of petroleum lubricating oil, and Chustz's survivors are seeking exemplary damages under LSA-C.C. art. 2315.3. It is alleged that the truck was transporting a toxic or hazardous substance with wanton or reckless disregard for public safety. The trial court denied Hunt's motion for partial summary judgment on the exemplary damage claims, and the court of appeal denied review.
Under Louisiana law, statutes which impose a penalty, such as punitive or exemplary damages, are strictly construed. International Harvester Credit v. Seale, 518 So.2d 1039 (La. 1988). Although this statute does not define hazardous or toxic substances, the words must be given their generally accepted meaning. LSA-C.C. art. 11. Hazardous substances are those that present substantial danger to public health or the environment. A toxic substance is a substance poisonous to living organisms. Thus, the terms "hazardous" and "toxic" refer to substances which cause injury or death to human beings and/or create an environmental hazard. Applying strict construction, under the facts here cases of petroleum lubricating oil are not hazardous or toxic. Plaintiffs are not entitled to pursue exemplary damages.
For the foregoing reasons, the judgment of the trial court is reversed and partial summary judgment is rendered dismissing plaintiffs' claims for exemplary damages.
REVERSED AND RENDERED.
LEMMON, J., — recused; not on panel. Rule IV, Part 2, § 3.
KIMBALL, J., — concurs in result.
JOHNSON, J., — concurs in result.
YELVERTON, J., — dissents and assigns reasons.
Electricity is the only thing excluded, as a matter of law, from the term "hazardous or toxic substances" as used in Article 2315.3. Electricity was excluded by Act 302 of 1990. As originally introduced, Senate Bill No. 676 (which became Act 302) was to amend and reenact the article to define the term and exclude many things, including oil, from what might be hazardous or toxic. Committee action in both chambers rejected that definition and left excluded, as a matter of law, only electricity.
Most people think of oil as hazardous and toxic. The denial of summary judgment in the trial court and court of appeal was supported by affidavits and depositions of experts. The summary judgment evidence raised a genuine issue of material fact. Whether petroleum lubricating oil is hazardous or toxic in this case should be decided by the trier of fact.