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Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 13th day of March, 2012, are as follows: NEWS RELEASE #014

BY CLARK, J.:

2010-C -2605

CRAIG STEVEN ARABIE, ET AL. v. CITGO PETROLEUM CORPORATION, ET AL. (Parish of Calcasieu) For the foregoing reasons, we reverse the rulings of the courts below in part, affirm in part, and render judgment. JOHNSON, J., concurs in part and dissents in part for reasons assigned by Knoll, J. KNOLL, J., concurs in part and dissents in part with reasons. GUIDRY, J., concurs in the result and assigns reasons.

03/13/12 SUPREME COURT OF LOUISIANA NO. 2010-C-2605 CRAIG STEVEN ARABIE, ET AL. VERSUS CITGO PETROLEUM CORPORATION, ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF CALCASIEU
CLARK, Justice We granted this writ application in order to determine whether the courts below erred as to the allocation of fault, in awarding damages for fear of future injury, and in awarding punitive damages. For the reasons which follow, we affirm in part, reverse in part, and render judgment. FACTS and PROCEDURAL HISTORY On the night of June 18 and the morning of June 19, 2006, southwest Louisiana experienced a severe rainstorm. As a consequence of the storm, the stormwater drainage and storage system, including the wastewater treatment facility, at the Lake Charles, Louisiana, refinery of defendant, CITGO Petroleum Company (CITGO), was filled beyond available capacity and overflowed, resulting in a major oil spill. The system was designed to collect the water used in day-today operations at the refinery and the runoff from most areas of the refinery due to rainfall. The system contained two 10 million gallon storage tanks with floating roofs, in which water was to be collected until it could be treated and released. The two tanks were equipped with "skimmers," which were to remove any "slop oil"1

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"Slop oil" is the generic term for a mixture of oil, chemicals and water derived from 1

from the wastewater. In addition, the tanks had fittings which would allow excess oil to be drained from the tanks into vacuum trucks. According to the CITGO standard operating procedure, the level of liquid in the tanks was to be maintained at five feet or less to maximize capacity. The tanks were enclosed in a concretefloored area surrounded by concreted levees or "dikes." This area was designed to contain any overflow from the tanks. Due to the ongoing construction of a third tank of similar capacity, a portion of the concrete dike system had been removed and the enclosed area was enlarged. The part of the dike surrounding the newly enclosed area was made of earth, as was its "floor." Cementing of the floor and of the dike walls was not scheduled until after the third tank was completed. A pipeline ran under the newly enclosed area and a "junction box" was installed where the pipeline made a ninety degree turn. The junction box was made of cement and the cement cover was not sealed against leaks. The junction box was covered with unpacked earth. In addition, there were several pipes going through the dike wall. Over 21 million gallons of waste, including 17 million gallons of contaminated wastewater and 4.2 million gallons of slop oil, escaped from the two existing wastewater storage tanks into an area around the tanks which was surrounded by levees or dikes. R. at 25,978. Of the 4.2 million gallons of slop oil which escaped, over 1 million gallons were released into the Calcasieu River. R. at 25,979. The oil spill, which was described at trial as "major" and "catastrophic," eventually contaminated over 100 miles of shoreline along the Calcasieu River, and required several months to clean up. The fourteen plaintiffs, employees of Ron Williams Construction (RWC) working at the Calcasieu Refining Company (CRC) located 2.7 miles south of the CITGO refinery, filed suit against CITGO and R&R Construction, Inc. (R&R), in
various locations in an oil refinery. 2

the Fourteenth Judicial District Court in Calcasieu Parish, alleging various injuries due to their exposure to noxious gases emanating from the spill. CITGO and R&R stipulated that they were liable for the spill and agreed to "pay plaintiffs for all their compensatory damages assessed to CITGO and R&R, if any, that plaintiffs are able to prove to the Court were proximately caused by such release from the CITGO refinery in Calcasieu Parish, Louisiana, on or about June 19, 2006." After a two week bench trial, the district court ruled that plaintiffs had proved their injuries, more likely than not, were caused by CITGO's admitted negligence in allowing the spill. The court awarded plaintiffs general damages, including damages for fear of developing cancer in the future, ranging from $7000 to $15,000. Determining that Louisiana's choice of law statutes favored the

imposition of either Texas' or Oklahoma's punitive damages laws, the court further awarded each plaintiff $30,000 in punitive damages. The court of appeal affirmed, holding that the district court's finding the spill caused plaintiffs' injuries was not an abuse of discretion, the fear of future disease award was supported by the record, there was no evidence of fault on the part of either plaintiffs or their employer, the application of the punitive damages law of Texas was not error, and that, as required for recovery under Texas' punitive damages law, CITGO was grossly negligent. Arabie v. CITGO Petroleum Corp., 10-244 (La.App. 3 Cir. 10/27/10), 49 So.3d 529. Defendants filed in this Court a Writ of Certiorari and/or Review, which was granted. Arabie v. CITGO Petroleum Corp., 2010-2605 (La. 2/4/11), 56 So.3d 981. DISCUSSION CITGO asserts five assignments of error: (1) Louisiana law should apply to plaintiffs' punitive damage claims, (2) the award of punitive damages violates CITGO's due process rights under the United States Constitution, (3) the damage award changes the burden of proof in chemical exposure cases, (4) the lower courts
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failed to follow this Court's jurisprudence in awarding damages for fear of future injury, and (5) the lower courts did not allocate fault to all individuals responsible for plaintiffs' alleged injuries. Standard of Review It is well-settled that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1979). In Arceneaux, we set forth a two-part test for the appellate review of facts: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court, and (2) the appellate court must further determine that the record establishes the finding is not clearly wrong or manifestly erroneous. Arceneaux, 365 So.2d at 1333; see also Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). If the trial court's findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990). Consequently, when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Stobart v. State, Through Department of Transportation and

Development, 617 So.2d 880, 883 (La.1993); Sistler, 558 So.2d at 1112. Punitive Damages Claims Our analysis of whether Louisiana law or another state's laws should be applied with regard to punitive damages is controlled by Louisiana Civil Code Book IV, Conflict of Laws, Title VII, Delictual and Quasi-Delictual Obligations, Articles 3542 through 3548. The fundamental question in all cases involving statutory interpretation is legislative intent. City of DeQuincy v. Henry, 2010-0070 (La. 3/15/11), 62 So.3d 43, 46. Further, according to the general rules of statutory interpretation, our interpretation of any statutory provision begins with the language of the statute itself. In re Succession of Faget, 10-0188, p. 8
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(La.11/30/10), 53 So.3d 414, 420. While the Official Revision Comments are not the law, they may be helpful in determining legislative intent. See, e.g., State v. Jones, 351 So.2d 1194, 1195 (La. 1977). We recently reiterated many of the rules of statutory interpretation, stating: When [a] provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used. Unequivocal provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. Words and phrases must be read with their context and construed according to the common and approved usage of the language. "The word 'shall' is mandatory and the word 'may' is permissive." Further, every word, sentence, or provision in a law is presumed to be intended to serve some useful purpose, that some effect is given to each such provision, and that no unnecessary words or provisions were employed. Consequently, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless and surplusage if a construction giving force to and preserving all words can legitimately be found. Where two statutes deal with the same subject matter, they should be harmonized if possible, as it is the duty of the courts, in the construction of statutes, to harmonize and reconcile laws. However, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. McGlothlin v. Christus St. Patrick Hospital, 2010-2775 (La. 7/1/2011), 65 So.3d 1218, 1228-29 (citations omitted). The trial court, in its reasons for judgment, began its analysis of whether another state's punitive damages law should apply in this case by recognizing that punitive damages are not allowable unless expressly authorized by statute. The court then paraphrased Civil Code Article 3546, stating: Punitive damages may not be awarded by Louisiana courts except when two of the following three are present: (1) Punitive damages are authorized by the law of the state where the injurious conduct occurred
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(2) Punitives are authorized by the law of the state where the injury occurred (3) Punitives are authorized by the law of the place where the person who caused the injury was domiciled . . . [I]n determining in what state the injurious conduct occurred, it is necessary to determine whether the location of the corporate headquarters should be used, rather than the location of the local situs (in this case, refinery). In order for this to happen, the management or corporate level decisions and actions should "outweigh or equal the allegedly tortious conduct that occurred" locally. Similarly, an isolated corporate act will not outweigh "considerable business activities" conducted locally. R. at 25,046 (citations omitted). As referenced, the trial court felt that the

determining factor was the location of the injurious conduct. It found, without providing its analysis, that CITGO's domicile was in Texas or Oklahoma. The court of appeal, in agreeing with the trial court's ruling, did explore CITGO's domiciliary location, holding that CITGO was domiciled in Texas for the purpose of Louisiana's conflict of laws statutes. It is undisputed by the parties and the lower courts that the site of the injury is Louisiana. CITGO argues that an analysis of Louisiana's con flict of laws statutes indicates that the application of either Texas or Oklahoma punitive damages laws is erroneous. CITGO further argues that the lower courts erred in determining that CITGO was not a domiciliary of Louisiana and that the place of injurious conduct was in Texas or Oklahoma. Plaintiffs, as may be expected, argue in opposition that the lower courts were correct in making these two determinations. According to the Civil Code, punitive damages may only be awarded under certain conditions. We begin our analysis by examining Article 3546 of the Code, entitled "Punitive damages," which reads: Punitive damages may not be awarded by a court of this state unless authorized: (1) By the law of the state where the injurious conduct occurred and by either the law of the state where the resulting injury occurred or the law of the place where the person whose conduct caused the
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injury was domiciled; or (2) By the law of the state in which the injury occurred and by the law of the state where the person whose conduct caused the injury was domiciled. C.C. art. 3546. Subparagraph (2) of the article requires that punitive damages be authorized by both the state in which injury occurred and the state of domicile of the person who caused the injury. Because it is undisputed that all the injuries occurred in Louisiana, subparagraph (2) clearly does not apply. Likewise, the first instance described in subparagraph (1) of the article is not applicable, as both the injurious conduct and the resulting injuries are required to have occurred in a state which authorizes punitive damages. As pointed out above, the injuries, at least, occurred in Louisiana. Under the second instance described in subparagraph (1), both CITGO's domicile and the place of injurious conduct must have been in Texas or Oklahoma for the Texas or Oklahoma punitive damages laws to apply, as found by the trial court. As pertains to conflict of laws questions, a party's domicile shall be determined according to Articles 3518 and 3548 of the Civil Code. Article 3518 reads: For the purposes of this Book [Book IV, Conflict of Laws], the domicile of a person is determined in accordance with the law of this state. A juridical person may be treated as a domiciliary of either the state of its formation or the state of its principal place of business, whichever is most pertinent to the particular issue. C.C. art. 3518. Article 3548, in turn, reads: For the purposes of this Title [Title VII, Delictual and QuasiDelictual Obligations], and provided it is appropriate under the principles of Article 3542, a juridical person that is domiciled outside this state, but which transacts business in this state and incurs a delictual or quasi-delictual obligation arising from activity within this
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state, shall be treated as a domiciliary of this state. C.C. art. 3548. As stated above, when two statutes apply to the same subject matter and their language cannot be harmonized, the language of the more specific statute applies, which, in this case involving delictual obligations, would be Article 3548. Here, though, the two statutes can be harmonized. CITGO is a Delaware corporation with its corporate headquarters located in Houston, Texas. As such, it is a juridical person domiciled outside this state per Article 3518. CITGO also operates its refinery in Lake Charles, Louisiana, the place at which the oil spill occurred. Under Article 3548, juridical persons

domiciled outside Louisiana, as is CITGO under Article 3518, who incur a delictual obligation, shall be treated as a domiciliary of Louisiana if appropriate under the principles contained in Article 3542. Thus, under Article 3548, CITGO must be treated as a domiciliary of Louisiana if such treatment is appropriate under the principles of Article 3542, and, if so, the second instance described in Article 3546, subparagraph (1) is inapplicable. The court of appeal recognized the

interplay between Articles 3548 and 3542, but in its analysis of CITGO's domicile, listed only those facts which would tend to support the trial court's ruling on domicile, but neglected to address the facts which would support a finding that CITGO should be considered a domiciliary of Louisiana. We turn, then, to the analysis of Article 3542 to determine, under the principles set out therein, whether it would be appropriate to consider CITGO a Louisiana domiciliary under Article 3548. Article 3542 states: Except as otherwise provided in this Title, an issue of delictual or quasi-delictual obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of:
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(1) the pertinent contacts of each state to the parties and the events giving rise to the dispute, including the place of conduct and injury, the domicile, habitual residence, or place of business of the parties, and the state in which the relationship, if any, between the parties was centered; and (2) the policies referred to in Article 3515, as well as the policies of deterring wrongful conduct and of repairing the consequences of injurious acts. C.C. art. 3542. We recently examined the interplay of factors contained in Article 3542 in our opinion in Wooley v. Lucksinger, 09-571 (La. 4/1/11), 61 So.3d 507, 567. In that case, the Louisiana Commissioner of Insurance filed tort and contract suits against several defendants on behalf of a failing health maintenance organization (HMO). The Oklahoma Commissioner of Insurance and a receiver appointed by the Texas Commissioner of Insurance intervened as plaintiffs in the tort cases on behalf of affiliated HMOs, organized and doing business in those states, which had similar tort causes of action against the defendants. The three lawsuits --which alleged causes of action in negligence, negligent misrepresentation, conspiracy, fraud, breach of fiduciary duty, unfair or deceptive acts or practices, and contractual liability--were consolidated. The scheme that formed the core of the matter was relatively simple: after regulatory approval for the sale of the HMOs was obtained in all three states, the parties drafted a final sale document which recharacterized the HMOs' premium deficiency reserves, the amount an insurance company is required to keep on hand to cover claims which cost more money than has been received in premiums, as a restructuring reserve. This sole action had the effect of increasing the assets of the HMOs as of the day before the sale, which allowed the parent corporation--under the expressly-approved sale terms--to take out more of the assets of the HMOs than regulators believed would happen in the transaction. Thus stripped of their reserves, the HMOs were left in a financially unsustainable position from which they never recovered. determined that Texas law applied to the tort cases.
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The trial court

During our review of that decision under the factors contained in Article 3542, we noted that two of the defendants in the case were domiciled in Texas, while the other two were domiciled in Oklahoma and Louisiana, respectively. We determined that the majority of the tortious conduct occurred in Texas, and we noted that the tortious conduct which occurred in Texas had consequences and caused injury in Louisiana, Oklahoma, and Texas, but the most severe harm, in terms of the number of injuries and dollar amounts of damage occurred in Texas. Under those facts, we determined that the trial court did not err in finding that Texas had the most significant contacts under Article 3542. As stated in its first paragraph, the objective of the article is to identify the state whose policies would be most seriously impaired if its law were not applied. To accomplish this, the statute lists several nonexclusive factors to be considered in determining choice of law questions: (1) The pertinent contacts of each state to the parties; (2) their contacts to the events giving rise to the dispute, including the place of conduct and injury; (3) the domicile, habitual residence, or place of business of the parties; (4) the state in which the relationship between the parties was centered; (5) deterring wrongful conduct; and (6) repairing the consequences of injurious acts. The article also imports from Article 3515 the following factors: (7) the relationship of each state to the parties and the dispute; and (8) the policies and needs of the interstate system, including the policies of upholding the justified expectations of the parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state. As stated in the comments to the article: [T]his article provides an illustrative list of the most important factual contacts in light of which to evaluate the strength and pertinence of the above policies. These contacts will serve the dual role of helping, first, to identify the potentially concerned states, and, then, to assess the pertinence and strength of their respective policies and the impacts of the decision on such policies. The listing of contacts is neither exhaustive nor hierarchical, and is intended to discourage a
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mechanistic counting of contacts as a means of selecting the applicable law. . . [T]he evaluation of factual contacts should be qualitative rather than quantitative, and should be made in the light of the policies of each contact-state that are pertinent to the particular issue in dispute. C.C. art. 3542, Revision Comment (a). In his reasons for judgment, the trial judge began his discussion of choice of law with regard to punitive damages with an analysis of Article 3542. The court did not discuss each state's contacts in the terms laid out by the statute. Although, the factors listed in Article 3542 are merely "illustrative," the factors are also "the most important factual contacts" to which a court should turn in determining choice of law questions. Here, in its reasons for judgment, the court found: (1) that a serious spill occurred in Louisiana; (2) that the defendant's home office was located in Texas at the time of the spill; (3) that significant funding, steerage, and budget decisions leading to the under building of the wastewater treatment facility, and ultimately the spill, were made at corporate headquarters in Texas and Oklahoma in furtherance of profit enhancement; (4) this Court's previous ruling that the defendant engaged in civil fraud prior and subsequent to the spill; (5) the defendant failed to adequately warn the local populace of their existing Material Safety Data Sheet (MSDS) for the spilled product; and (6) the defendant cognizantly misinformed government agencies of the status and capabilities of their Waste Water Treatment Unit. R. at 25,048. We recently looked at a trial court's failure to expressly analyze each factor contained in a statute, in terms of child relocation, in the case of Gathen v. Gathen, 10

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