UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

COLONIAL PIPELINE COMPANY; TERRA
NOVA INSURANCE COMPANY LIMITED;
COMMERCIAL UNION ASSURANCE
COMPANY PLC; THE NIPPON
INSURANCE COMPANY OF EUROPE
LIMITED; SWITZERLAND INSURANCE
COMPANY UK LIMITED; FUJI
INTERNATIONAL INSURANCE COMPANY
LIMITED; OCEAN MARINE INSURANCE
COMPANY LIMITED; INDEMNITY
MARINE ASSURANCE COMPANY,
LIMITED; PHOENIX ASSURANCE PLC
LSA A/C; NORTHERN ASSURANCE
COMPANY LIMITED PER NORTHERN
UNDERWRITING AGENCY NO. 6
ACCOUNT; YORKSHIRE INSURANCE CO.
LTD., L Account; SIRIUS UK
                                   No. 97-1926
INSURANCE PLC; ZURICH
REINSURANCE UK LIMITED;
COMPAGNIE D'ASSURANCES
MARITIMES AERIENNES ET
TERRESTRES; GAN MINISTER
INSURANCE COMPANY LIMITED;
PHOENIX ASSURANCE PUBLIC LIMITED
COMPANY; THE SCOTTISH LION
INSURANCE COMPANY LIMITED; HANSA
MARINE INSURANCE COMPANY UK
LIMITED; THE TOKIO MARINE & FIRE
INSURANCE COMPANY UK LIMITED;
SPHERE DRAKE INSURANCE PLC NO. 1
A/C,
Plaintiffs-Appellants,

v.
THE DRIGGS GROUP, INC.; THE
DRIGGS CORPORATION,
Defendants-Appellees,

and

PATTEN CONSTRUCTION COMPANY;

PATTEN BEERS CONSTRUCTORS,
INCORPORATED,
Defendants,

HCA HEALTH SERVICES OF VIRGINIA,
INCORPORATED,
Party in Interest.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Richard L. Williams, Senior District Judge.
(CA-96-1700-A)

Argued: May 6, 1998

Decided: June 26, 1998

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge,
and BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Bruce Victor Schewe, PHELPS DUNBAR, New Orleans,
Louisiana, for Appellants. Thomas Frederick Holt, Jr., KIRKPAT-

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RICK & LOCKHART, L.L.P., Boston, Massachusetts, for Appellees.
ON BRIEF: Leah E. Nunn, J. Clifton Hall, III, William H. Howard,
III, PHELPS DUNBAR, New Orleans, Louisiana; Alan B. Croft,
BAACH, ROBINSON & LEWIS, Washington, D.C., for Appellants.
Mark E. Haddad, Phoebe S. Gallagher, Elizabeth L. Smith, KIRK-
PATRICK & LOCKHART, L.L.P., Boston, Massachusetts; Linda M.
Gardner, KIRKPATRICK & LOCKHART, L.L.P., Washington,
D.C., for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In 1993, a 36-inch subsurface oil pipeline owned by appellant,
Colonial Pipeline, ruptured. As a result of the rupture, appellants
incurred clean up costs in excess of $15 million dollars. Appellants
brought suit to recover these costs under the Federal Oil Pollution Act
(OPA) and various state law theories, alleging that defendant-appellee
Driggs struck and gouged the pipeline in 1986 while Driggs was con-
structing a parking lot near the pipeline and that this gouge resulted
in the pipe's eventual rupture in 1993.

The district court granted summary judgment for defendants on
appellants' OPA claims on the ground that the Act did not apply to
Driggs' alleged gouging of the pipe, which, if it occurred at all,
occurred prior to the effective date of OPA. The court allowed appel-
lants' state law claims to proceed to trial, but-- at the close of appel-
lants' case in chief -- the district court granted defendants' motion
for a directed verdict because appellants' case against Driggs was "to-
tally speculative" and was insufficient to allow a jury to find liability.
J.A. at 1191. The district court also found the state law claims time-
barred. Id.

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In order to prevail on their OPA and state law claims, appellants
had to prove that, more probably than not, Driggs damaged the pipe-
line and that that damage caused the pipeline's eventual rupture. In
other words, appellants had to proffer evidence that, if credited by the
jury, would establish not merely that it was a possibility that Driggs
damaged the pipeline, but that there was a reasonable probability that
it did so. Appellants had no direct evidence that Driggs gouged the
pipeline while leveling the ground above and adjacent to the pipeline
to create a parking lot. Instead, Colonial relied entirely on circumstan-
tial evidence to make its case. Having heard oral argument and
reviewed the record and the submissions of the parties, we agree with
the district court that appellants did not present sufficient circumstan-
tial evidence from which a jury could reasonably find that, more prob-
ably than not, it was Driggs who damaged the pipeline, rather than
any of the other groups that worked in the area at the time of the pipe-
line's installation and thereafter. Appellants, in essence, would be
asking the jury simply to speculate about which of the potentially
responsible parties actually caused the damage to the pipeline. This
we cannot allow them to do. Accordingly, the judgment of the district
court is affirmed.*

AFFIRMED
_________________________________________________________________
*Because we affirm the dismissal of appellants' OPA claims and state
law claims on the ground that appellants could not prove causation, we
do not consider the correctness of the district court's alternative holdings
on those claims.

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