Fick v. Exxon Mobil Corporation
Filing
90
ORDER AND REASONS DENYING 64 Motion for Summary Judgment. Signed by Judge Susie Morgan on 1/7/2016. (my)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THOMAS FICK ET AL.
Plaintiffs
CIVIL ACTION
VERSUS
No. 13-6608
EXXON MOBIL CORPORATION,
Defendant
SECTION “E”
ORDER AND REASONS
Before the Court is Defendant’s Motion for Summary Judgment. 1 For the reasons
set forth below, Defendant’s motion is DENIED.
BACKGROUND
This is a personal injury case. Plaintiffs Thomas Fick and Antoine Gregoire 2
(collectively, “Plaintiffs”) allege that, while shrimping in Bayou Jean La Croix Field in
Terrebonne Parish, Louisiana, on October 23, 2o13, Fick was operating a Carolina Skiff
boat in a navigable waterway when the boat struck a “pipe to the well owned by Exxon.” 3
Fick and Gregoire allege they sustained severe injuries as a result of the allision. 4 On
December 9, 2013, Fick filed this suit against Exxon Mobil Corporation (“Exxon”). 5
Plaintiffs allege that Exxon was negligent and seek compensatory and punitive damages
under the general maritime law. 6
R. Doc. 64.
Plaintiff Antoine Gregoire was named in the Third Amended Complaint. R. Doc. 38.
3 R. Doc. 1 at ¶ IV; R. Doc. 64-17 at 2; R. Doc. 69 at 2.
4 Id.
5 R. Doc. 1. The Amended Complaint, filed June 17, 2014, named Gulf South Pipeline Company, L.P. (“Gulf
South”) as an additional defendant. R. Doc. 10. Plaintiffs filed a motion to dismiss Gulf South, however, on
March 12, 2015, which the Court granted. R. Docs. 33, 36.
6 R. Doc. 1 at ¶¶ V–VII; R. Doc. 38.
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On November 25, 2015, Exxon filed a motion for summary judgment. 7 Exxon
argues in its motion that it does not own the object Plaintiffs struck and the object is not
associated with Exxon such that it could be held liable for the alleged allision. 8 Plaintiffs
filed a response in opposition to Exxon’s motion on December 8, 2015. 9 Exxon filed a
reply in support of its motion on December 18, 2015, 10 and Plaintiffs filed a surreply on
December 23, 2015. 11
STANDARD OF LAW
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” 12 “An issue is material if its resolution could affect the outcome of the action.” 13
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.” 14 All reasonable inferences are drawn in favor of the non-moving party. 15
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law. 16
Inadmissible evidence cannot be considered on a summary judgment motion. 17 “The
R. Doc. 64.
Id.
9 R. Doc. 69.
10 R. Doc. 80.
11 R. Doc. 82.
12 Fed. R. Civ. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
13 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
14 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). See also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
15 McLaurin v. Noble Drilling (US) Inc., 529 F.3d 285, 288 (5th Cir. 2008).
16 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
17 See Pegram v. Honeywell, Inc., 361 F.3d 272, 285 (5th Cir. 2004).
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admissibility of summary judgment evidence is subject to the same rules of admissibility
applicable to a trial.” 18
If the dispositive issue is one on which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 19 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the non-moving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist. 20
If the dispositive issue is one on which the non-moving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either
(1) submitting affirmative evidence that negates an essential element of the non-movant’s
claim, or (2) affirmatively demonstrating that there is no evidence in the record to
establish an essential element of the non-movant’s claim. 21 If the movant fails to
affirmatively show the absence of evidence in the record, its motion for summary
judgment must be denied. 22 Thus, the non-moving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.” 23 “[U]nsubstantiated
Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1024 (5th Cir. 1995).
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
20 Celotex, 477 U.S. at 322–24.
21 Id. at 331–32 (Brennan, J., dissenting).
22 See id. at 332.
23 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the
evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
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assertions are not competent summary judgment evidence. The party opposing summary
judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’” 24
ANALYSIS
To establish that Exxon is liable for the allision, Plaintiffs “must prove that the pipe
was owned, maintained, controlled, or placed in position” by Exxon. 25 Plaintiffs cannot
survive summary judgment without some evidence linking Exxon to the pipe; establishing
that Exxon’s operations were closest to the allision site is insufficient. 26
Exxon argues Plaintiffs have presented no evidence showing that Exxon owned,
placed, or maintained the line Plaintiffs struck. 27 The allision occurred in an area adjacent
to an oil well field in which Exxon operated through 1983, 28 but Exxon maintains, and
Plaintiffs do not dispute, 29 that the only asset Exxon ever owned in the vicinity of the
allision site was the now plugged and abandoned D-15 well. 30 Exxon’s corporate deponent
testified that Exxon (formerly and at that time, Humble Oil & Refining Co.) leased the
additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.
24 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
25 Guidry v. Apache Corp. of Delaware, 236 F. App’x 24, 25 (5th Cir. 2007); Creppel v. Shell Oil Co., 738
F.2d 699, 702 (5th Cir. 1984). See also Parker v. Arco Oil & Gas Co., No. 07-5915, 2007 WL 4299426, at *2
(E.D. La. Dec. 6, 2007) (“A duty exists when the lessee owns the obstructions, has placed them, or maintains
them under its control.”).
26 Guidry, 236 F. App’x at 25.
27 R. Doc. 64-3 at 6.
28 R. Doc. 64-14 at 2–3. Plaintiffs do not dispute this. R. Doc. 69 at 6.
29 Plaintiffs agree that the only asset Exxon ever owned within 100 feet of the allision site is the D-15 well.
R. Doc.69-8 at ¶ 15.
30 See R. Doc. 64-2 at ¶ 15; R. Doc. 69-8 at ¶ 15.
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land from Louisiana Land and Exploration Company (“LL&E”) in 1950. 31 The parties
agree that the lease between Humble Oil & Refining Co. and LL&E was “completely
released back to LL&E” in June 1983. 32 Exxon maintains that it has not operated any
assets in Bayou Jean La Croix Field since 1983 33 and that it does not own, maintain,
control, or operate—and had no duty to remove—the object Plaintiffs struck. 34
Plaintiffs attach to their opposition a sworn affidavit from Thomas Picou. In his
affidavit, Picou states that, while he was operating his vessel in Bayou Jean La Croix on
October 24, 2013, his vessel struck the same object that Plaintiffs struck. 35 Picou also
states that John Dill, a claim supervisor for ExxonMobil Risk Management, Inc., 36 told
Picou that the object he struck “was Exxon’s equipment which was associated with a Well
#15.” 37 According to the affidavit, Exxon sent Picou a check to compensate him for the
damage to his boat as a result of his allision with the object. 38 Thus, if admissible, Picou’s
affidavit would create a genuine issue of material fact as to whether Exxon owned,
operated, maintained, put in place, or was otherwise responsible for the object Plaintiffs
struck.
Exxon argues Picou’s affidavit is inadmissible hearsay and thus is not competent
summary judgment evidence. 39 Exxon also argues that Federal Rule of Evidence 408
renders inadmissible Picou’s affidavit concerning any settlement with Exxon. As the party
R. Doc. 64-14 at 3.
R. Doc. 64-2 at ¶ 4; R. Doc. 69-8 at ¶ 4. For the Release of Lease document, see R. Doc. 64-13.
33 See R. Doc. 64-3 at 19; R. Doc. 64-14 at 2 (“We’ve not operated in that area since 1983.”); R. Doc. 64-14
at 3 (“Q Until 1983. And at which time, they abandoned the site to or back to—abandoned the lease back to
LL&E? A Correct.”); R. Doc. 69-4 at 5 (same).
34 R. Doc. 64-3 at 17–25.
35 R. Doc. 69-5 at 1–2.
36 R. Doc. 80-2 at ¶ 2.
37 R. Doc. 69-5 at 1.
38 Id. at 2.
39 R. Doc. 80 at 4.
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objecting to the admission of the affidavit, Exxon bears the burden of proving the
preliminary facts required to show its inadmissibility. 40
Under Rule 408, evidence of a statement made during compromise negotiations
“about the claim” is inadmissible to prove or disprove the validity of a disputed claim.41
The rule expressly provides for exceptions, noting that evidence of statements made
during compromise negotiations may be admitted “for another purpose.” 42 This Court has
broad discretion in determining whether to admit evidence related to a compromise or
settlement for another purpose. 43 Indeed, “[e]vidence coming out of settlement
negotiations . . . [has] been admitted by courts for additional purposes other than
establishing liability, including for purposes of rebuttal, for purposes of impeachment, to
show knowledge and intent, to show a continuing course of reckless conduct, and to prove
estoppel.” 44
Moreover, several courts have determined that the rule does not apply to evidence
regarding the settlement of a claim different from the one being litigated, 45 though “even
the circuits that construe Rule 408 narrowly view evidence of third party settlements
skeptically.” 46 The 1972 advisory committee notes to Rule 408 state as follows:
Lyondell Chem. Co. v. Occidental Chem. Corp., 608 F.3d 284, 295 (5th Cir. 2010).
FED. R. EVID. 408(a)(2).
42 Id.
43 In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, on Apr. 20, 2010, No. MDL 2179, 2012
WL 395048, at *3 (E.D. La. Feb. 7, 2012) (“Whether evidence should be admitted for another purpose is
within the discretion of the district court; the decision to admit or exclude evidence proferred for other
purposes will be reversed only for an abuse of that discretion.”); U.S. Aviation Underwriters, Inc. v.
Olympia Wings, Inc., 896 F.2d 949, 956 (5th Cir. 1990); Belton v. Fibreboard Corp., 724 F.2d 500, 505
(5th Cir.1984).
44 Zurich Am. Ins. Co. v. Watts Indus., Inc., 417 F.3d 682, 689 (7th Cir. 2005).
45 Tendeka, Inc. v. Glover, No. 13-1764, 2015 WL 2212601, at *20 (S.D. Tex. May 11, 2015) (“Rule 408 does
not prohibit all uses of settlement offers. Instead, Rule 408 prevents a party from proving or disproving the
validity of ‘a disputed claim’ by introducing evidence of ‘valuable consideration in compromising or
attempting to compromise the claim.’” (quoting FED. R. EVID. 408) (emphasis in original)); Towerridge,
Inc. v. T.A.O., Inc., 111 F.3d 758, 769–70 (10th Cir. 1997); Dahlgren v. First Nat. Bank of Holdrege, 533
F.3d 681, 700 (8th Cir. 2008).
46 Dahlgren, 533 F.3d at 699.
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While the rule is ordinarily phrased in terms of offers of compromise, it is apparent
that a similar attitude must be taken with respect to completed compromises when
offered against a party thereto. This latter situation will not, of course, ordinarily
occur except when a party to the present litigation has compromised with a third
person. 47
As the Tenth Circuit explained, “Rule 408 does not require the exclusion of evidence
regarding the settlement of a claim different from the one litigated, though admission of
such evidence may nonetheless implicate the same concerns of prejudice and deterrence
of settlements which underlie Rule 408.” 48 Another section of this Court explained that
the underlying policy of Rule 408, which is intended to encourage the compromise of
disputes by ensuring freedom of communication with respect to settlement negotiations,
“applies in situations, as here, in which a plaintiff attempts to introduce evidence of a
settlement between the same defendant but a different plaintiff.” 49 The court also stated,
however, that Rule 408 “may be used only to exclude settlement documents that are
introduced to prove or disprove the liability or the amount of the claim that was the
subject of the compromise.” 50
Here, Plaintiffs seek to introduce Picou’s affidavit not to prove or disprove Exxon’s
liability regarding Picou’s claim but rather to dispute Exxon’s contention that it has no
connection with the object Plaintiffs struck. Therefore, Rule 408 does not bar its
admissibility.
Exxon also contends Picou’s affidavit is hearsay and thus inadmissible under Rule
802. 51 Hearsay is a statement that “(1) the declarant does not make while testifying at the
FED. R. EVID. 408 advisory committee’s note.
Towerridge, 111 F.3d at 769–70 (internal citations omitted).
49 Safford v. St. Tammany Parish Fire Protection Dist. No. 1, No. 02-0055, 2003 WL 1873907, at *5 (E.D.
La. April 11, 2003).
50 Id. (emphasis added).
51 R. Doc. 80 at 4.
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current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter
asserted in the statement.” 52 A statement is not hearsay, however, when it is offered
against an opposing party and was made by a person whom the party authorized to make
a statement on the subject or was made by the party’s employee on a matter within the
scope of that relationship and while it existed. 53
Picou states in his affidavit that John Dill, who was “with Exxon Mobil
Corporation,” told Picou that the object he struck “was Exxon’s equipment which was
associated with a Well #15.” 54 In his declaration, Dill concedes he is employed by
ExxonMobil Risk Management, Inc. as a claim supervisor and that he was the assigned
adjuster for Picou’s claim. 55 Therefore, the statement was allegedly made by Exxon’s
employee on a matter within the scope of his relationship with Picou as the adjuster
assigned by Exxon to Picou’s claim. Accordingly, the statement is not hearsay, as it is
offered against Exxon. 56
The Court determines that Picou’s affidavit is admissible. Dill denies that he told
Picou the object he struck was associated with the D-15 well. 57 Picou’s affidavit, in which
he swears an Exxon employee admitted that the object was Exxon’s, creates a genuine
issue of material fact as to whether Exxon owned, operated, maintained, controlled, put
in place, or was otherwise responsible for the object that Plaintiffs struck.
Exxon argues in the alternative that, even if Exxon owned the pipe Plaintiffs
struck, it did not breach any duties to Plaintiffs because Exxon was under no duty to
FED. R. EVID. 801(c).
FED. R. EVID. 801(d)(2).
54 R. Doc. 69-5 at 1.
55 R. Doc. 80-2 at ¶¶ 2–3.
56 FED. R. EVID. 801(d)(2).
57 R. Doc. 80-2 at ¶ 7.
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remove the pipe or monitor the field after the lease was released back to LL&E in 1983. 58
In its memorandum, 59 Exxon cites several statutes and administrative code articles that
empower state officials to require parties to undertake certain oilfield restoration
activities and provide penalties for failure to comply with required restoration and
removal procedures. 60 Exxon maintains, “Had the State determined that ExxonMobil
needed to further act, it would have provided notice in the 30 or so years prior to the
accident. It never did; strongly suggesting ExxonMobil had satisfied its obligations under
the lease, the release and Statewide Order No. 29-B on the day of the incident.” 61
Whether Exxon satisfied its obligations under the lease and under Louisiana
regulations has no bearing on whether Exxon can be held liable in tort for Plaintiffs’
allision. Exxon fails to establish as a matter of law, or cite any case law to show, that the
oilfield restoration and removal laws and regulations to which it refers affect the standard
of care in a negligence action. 62 Courts have made clear that “[a] duty exists when the
lessee owns the obstructions, has placed them, or maintains them under its control.” 63
R. Doc. 64-3 at 21–25.
Id. at 22–25.
60 See, e.g., La. Rev. Stat. §§ 30:89, 30:92, 30:94.
61 R. Doc. 64-3 at 23.
62 Cf. Creppel, 738 F.2d at 702. The court in Creppel discussed a regulation requiring lessees of lands on
the Outer Continental Shelf to “maintain all equipment in a safe condition . . . for the health and safety of
all persons[] and for the preservation and conservation of property and the environment” and to
“immediately take all necessary precautions to control, remove, or otherwise correct any hazardous oil and
gas accumulation or other health, safety, or fire hazard.” Id. at 701–02. The court explained, “A breach of
the regulation provides no federal civil cause of action” and that the regulation established “no special
standard of care in a negligence action.” Id. at 702.
63 Parker, 2007 WL 4299426, at *2 (“The court in [Creppel] held that the mineral lessee had no duty to
clear its maritime leases of all obstructions simply because it had notice of them. A duty exists when the
lessee owns the obstructions, has placed them, or maintains them under its control. Although it was
arguable that circumstantial evidence existed for the jury to have found that the mineral lessee owned,
maintained, placed, or controlled the pipe in the leased area, the trial court did not instruct the jury that
such a finding was a prerequisite to holding the mineral lessee liable.”). See also Creppel, 738 F.2d at 702
(finding only that a mineral lessee does not have a duty “to police the waters covered by its lease or to take
steps to remove obstructions which it does not own, has not placed there, or does not maintain or control”
(emphasis added)).
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Picou’s affidavit raises a genuine issue of material fact as to whether Exxon owned,
operated, controlled, maintained, or put into place the object Plaintiffs hit. Accordingly,
summary judgment is not appropriate.
CONCLUSION
For the foregoing reasons;
IT IS ORDERED that Exxon’s Motion for Summary Judgment is DENIED.
New Orleans, Louisiana, this 7th day of January, 2016.
__________ ________ __ _____
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
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