     Case: 13-30150   Document: 00512820859     Page: 1   Date Filed: 10/30/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                        Fifth Circuit

                                                                       FILED
                                                                   October 30, 2014
                                 No. 13-30150
                                                                    Lyle W. Cayce
                                                                         Clerk
LEVI COLEMAN, SR., Deceased; BARBARA COLEMAN; SHIRLEY
COLEMAN MORELAND; LEVI COLEMAN, JR.; STANLEY NEWTON; ET
AL,

             Plaintiffs - Appellants

v.

OFS, INCORPORATED, individually and as successor in interest to Oil Field
Sales and Service, Incorporated; ATLANTIC RICHFIELD COMPANY,
individually and as successor in interest to Arco Oil and Gas Corporation,
also known as Arco Oil ; Gas Company; BP PRODUCTS NORTH AMERICA,
INCORPORATED, individually and as successor in interest to Amoco Oil
Company and American Oil Company; CHEVRON USA, INCORPORATED,
inidividually and as the parent company and successor to Gulf Oil
Corporation and Gulf Oil Exploration ; Production Company, and Texaco,
Incorporated, the successor to Texas Company; EXXON MOBIL
CORPORATION, individually and as successor in interest to Exxon
Corporation and Mobil Exploration ; Producing Southeast, Incorporated;
SHELL OFFSHORE, INCORPORATED; SHELL OIL COMPANY; SWEPI,
L.P., individually and as successor in interest to Shell Western E;P,
Incorporated; UNION OIL COMPANY OF CALIFORNIA; SUPERIOR OIL
COMPANY; PACKARD PIPE TERMINALS, L.L.C., formerly named as
Packard Pipe Terminals, Incorporated,

             Defendants - Appellees



                Appeal from the United States District Court
                   for the Eastern District of Louisiana



Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges.
    Case: 13-30150      Document: 00512820859    Page: 2   Date Filed: 10/30/2014



                                  No. 13-30150
JAMES E. GRAVES, JR:
      In a prior opinion and order, we certified to the Supreme Court of
Louisiana the question of whether the one-year time period governing a
survival action in Article 2315.1 of the Louisiana Civil Code is prescriptive or
peremptive. See Coleman v. OFS, Inc., 554 F. App’x 251 (5th Cir. Dec. 18,
2013). The Supreme Court of Louisiana denied certification, because in the
interim, that court issued its opinion in Watkins v. Exxon Mobil Corp., 2013-
1545 (La. 5/7/14), 145 So. 3d 237, reh’g denied (July 1, 2014), holding that the
time period in Article 2315.1, as amended in 1986, is prescriptive. Applying
this clear precedent, we reverse the district court’s dismissal of the Plaintiffs’
survival actions.
                    I. Factual and Procedural Background
      We restate the factual and procedural background, drawn from our
previous certification opinion.     Plaintiffs-Appellants in this class action
litigation are pipe yard workers and surviving beneficiaries of pipe yard
workers. Plaintiffs’ tort claims arise out of the pipe yard workers’ occupational
exposure to radioactive oil field waste materials including Technologically
Enhanced Naturally Occurring Radioactive Materials (“TENORM”) and other
hazardous substances. Plaintiffs allege that, unknown to the workers, pipe
cleaning, pipe maintenance, and yard maintenance resulted in their exposure
to TENORM, which caused or contributed to the development of various
diseases, health problems, and deaths. Defendants-Appellees are multiple oil
companies who contracted with employers of the workers. Plaintiffs allege that
Defendants were aware of the dangers of TENORM and were aware of the
workers’ exposure, but failed to warn the workers or the public of the
environmental and health dangers.
      The Coleman family originally filed survival claims and wrongful death
claims in state court based on Levi Coleman’s TENORM exposure. The action
                                        2
    Case: 13-30150    Document: 00512820859      Page: 3   Date Filed: 10/30/2014



                                  No. 13-30150
was amended multiple times to add additional plaintiffs.             Defendants
eventually removed the action to the Eastern District of Louisiana under the
Class Action Fairness Act, 28 U.S.C. §§ 1332(d), 1453. The district court denied
a motion to remand. Multiple defendants filed motions to dismiss certain of
the survival claims pursuant to Federal Rule of Civil Procedure 12(b)(6),
asserting that all survival claims filed more than one year after the decedent’s
death were untimely.       Plaintiffs argued that the applicable one-year
limitations period for survival claims, see La. Civ. Code art. 2315.1, did not
begin to run until Plaintiffs discovered the connection between the decedents’
deaths and the toxic tort exposure. Plaintiffs alternatively argued that the
one-year   limitations   period   was   preempted     by   the   Comprehensive
Environmental Response, Compensation, and Liability Act (“CERCLA”), 42
U.S.C. § 9658.
      After briefing and oral argument on the limitations issues, the district
court dismissed certain of the survival actions as untimely. The district court
determined that both before and after a 1986 amendment to the statute, the
Article 2315.1 limitations period for survival claims is peremptive, rather than
prescriptive, and is not subject to interruption or suspension for any reason.
The district court dismissed all survival claims filed more than one year after
the decedent’s death. The district court designated and certified its order of
partial dismissal as an appealable final judgment under Federal Rule of Civil
Procedure 54(b). Plaintiffs filed a motion for reconsideration arguing that the
district court did not address their argument regarding CERCLA preemption.
The district court denied the motion for reconsideration, holding that according
to circuit precedent, CERCLA does not preempt peremptive periods. Plaintiffs
timely appealed.
      We certified to the Supreme Court of Louisiana the question of whether
the one-year time period governing a survival action in Article 2315.1 is
                                        3
    Case: 13-30150    Document: 00512820859      Page: 4   Date Filed: 10/30/2014



                                 No. 13-30150
prescriptive or peremptive. See Coleman, 554 F. App’x at 252. On September
12, 2014, the Supreme Court of Louisiana denied certification, stating that
“The issue presented in the certified question has been resolved in Watkins v.
Exxon Mobil Corporation,” 2013-1545 (La. 5/7/14), 145 So. 3d 237, reh’g denied
(July 1, 2014).   Coleman v. OFS, Inc., 2013-2962 (La. 9/12/14), 2014 WL
4636432.
                                II. Discussion
      We review the district court’s dismissal under Rule 12(b)(6) de novo. See,
e.g., Hamilton v. United Healthcare of Louisiana, Inc., 310 F.3d 385, 388 (5th
Cir. 2002). We also review the district court’s determination of state law de
novo. Am. Waste & Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d
1384, 1386 (5th Cir. 1991).
      Louisiana Civil Code Article 2315.1 governs the time period in which
survival actions must be brought. It provides:
      If a person who has been injured by an offense or quasi offense
      dies, the right to recover all damages for injury to that person, his
      property or otherwise, caused by the offense or quasi offense, shall
      survive for a period of one year from the death of the deceased in
      favor of [specified beneficiaries].
La. Civ. Code art. 2315.1(A). The district court dismissed the survival actions
at issue based on its determination that the one-year time period for instituting
a survival action in Art. 2315.1 is peremptive, and not prescriptive.          In
Louisiana, “prescription merely prevents the enforcement of a right by action;
in contrast, peremption destroys the right itself.” La. Civ. Code art. 3458, 1982
rev. cmt. (b) (citing Pounds v. Schori, 377 So. 2d 1195 (La. 1979); Flowers, Inc.
v. Rausch, 364 So. 2d 928 (La. 1978)).        “When prescription applies, the
prescriptive period does not begin to run until the plaintiff has actual or
constructive knowledge of the facts which would entitle him to bring suit.” Ayo
v. Johns-Manville Sales Corp., 771 F.2d 902, 907 (5th Cir. 1985) (citations

                                       4
    Case: 13-30150    Document: 00512820859      Page: 5   Date Filed: 10/30/2014



                                 No. 13-30150
omitted); see Jenkins v. Starns, 11-1170 (La.1/24/12), 85 So.3d 612, 623
(describing the Louisiana doctrine of “contra non valentem agere non currit
praescriptio, which means prescription does not run against a person who could
not bring suit”). However, a peremptive period is not subject to tolling or
interruption and runs regardless of whether a plaintiff had knowledge of his
cause of action. See Ayo, 771 F.2d at 907; La. Civ. Code art. 3461 (“Peremption
may not be renounced, interrupted or suspended.”).
      The interpretation of Article 2315.1 is, of course, a question of state law.
To determine Louisiana law, we first look to the final decisions of the Supreme
Court of Louisiana. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 206
(5th Cir. 2007) (citing Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co.,
352 F.3d 254, 260 (5th Cir. 2003)). In Watkins v. Exxon Mobil Corp., the
Supreme Court of Louisiana clearly held that the time period in Article 2315.1
is prescriptive and not peremptive. 145 So. 3d at 243-44. In Watkins, the court
pointed to a new provision added in 1986 amendments to Article 2315.1 which
provides that “[t]he right of action granted under this Article is heritable, but
the inheritance of it neither interrupts nor prolongs the prescriptive period
defined in this Article.” La. Civ. Code art. 2315.1(C); see Watkins, 145 So. 3d
at 242. The court then held:
      we must conclude the legislature intended to provide that the time
      limitation for asserting the survival action is a one year period of
      liberative prescription. There can be little doubt that the
      legislature is well aware of the distinction between a period of
      liberative prescription and a period of peremption. Certainly the
      legislature could have deemed the time period one of peremption
      had it desired to do so. The legislature must have intended the
      time period to be one of liberative prescription, given that the term
      “prescriptive period” has a well-settled meaning in our law and
      jurisprudence.
Watkins, 145 So. 2d at 243-44 (citations omitted). In light of the Supreme
Court of Louisiana’s resolution of this question, we must adopt its holding that
                                        5
     Case: 13-30150      Document: 00512820859         Page: 6    Date Filed: 10/30/2014



                                      No. 13-30150
Article 2315.1, as amended in 1986, contains a prescriptive period.                     We
therefore reverse the district court’s dismissal of the plaintiffs’ claims based on
its contrary holding. 1 In light of this determination, there is no need for us to
address the Plaintiffs’ alternative argument regarding the effect of CERCLA.
                                   III. Conclusion
       For the foregoing reasons, we REVERSE the district court’s dismissal of
the plaintiffs’ claims and REMAND to the district court for further proceedings
consistent with this opinion.




       1The Watkins court addressed only the interpretation of Article 2315.1 after the 1986
amendments. See Watkins, 145 So. 2d at 242. Plaintiffs-Appellants’ briefing on appeal did
not contest the district court’s additional holding that prior to the 1986 amendments, the
time period governing survival actions was peremptive.
                                             6
