     Case: 13-30150   Document: 00512476009   Page: 1   Date Filed: 12/18/2013




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

                                                                      FILED
                                                                  December 18, 2013
                               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
                          USDC No. 2:11-CV-2937
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                                      No. 13-30150
Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       This is an appeal from a partial final judgment which dismissed certain
plaintiffs’ state law survival claims as untimely. The district court found that
the limitations period governing survival claims in Louisiana is peremptive
and thus not subject to tolling or interruption. We certify the dispositive
question of whether the relevant time period is prescriptive or peremptive to
the Louisiana Supreme Court.
                    I. Factual and Procedural Background
       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



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

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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.




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                                   II. Discussion
      This case involves the application of Louisiana 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 the absence of a final decision by the Supreme
Court of Louisiana, we “must make an Erie guess and determine, in our best
judgment, how that court would resolve the issue if presented with the same
case.” Id. When making the Erie guess, we “must employ Louisiana’s civilian
methodology, whereby we first examine primary sources of law: the
constitution, codes, and statutes.” Id.
      “Louisiana Civil Code article 2315.1 grants to designated beneficiaries a
right of action to recover the damages that a person suffered and would have
been entitled to recover from a tortfeasor, if that person had lived.” Barber v.
Employers Ins. Co. of Wausau, 2011-0357 (La. App. 1 Cir. 6/28/12), 97 So. 3d
454, 461; see La. Civ. Code art. 2315.1(A). Article 2315.1(A) 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].
      The primary issue on appeal is whether the one-year limitations period
provided by Article 2315.1 is prescriptive or peremptive. “Prescriptive periods”
are also known as statutes of limitation, while “peremptive periods” are also
known as statutes of repose. This court has described the difference:
       A statute of limitations extinguishes the right to prosecute an
       accrued cause of action after a period of time. It cuts off the
       remedy. It is remedial and procedural. A statute of repose limits
       the time during which a cause of action can arise and usually runs
       from an act of a defendant. It abolishes the cause of action after

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                                      No. 13-30150
           the passage of time even though the cause of action may not have
           yet accrued.

Servicios-Expoarma, C.A. v. Indus. Mar. Carriers, 135 F.3d 984, 989 (5th Cir.
1998) (quoting Harding v. K.C. Wall Prods., Inc., 831 P.2d 958, 967 (Kan.
1992)). In other words, “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)). In Louisiana,
“[w]hen 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 omitted); see Barber, 97 So. 3d at 464 (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”)
(citing Jenkins v. Starns, 11-1170 (La.1/24/12), 85 So.3d 612, 623). By contrast,
when peremption applies, the limitations 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.”). “Whether a particular
time period is prescriptive or peremptive is a matter determined by the
Louisiana courts.” Ayo, 771 F.2d at 906.
       In 1986, the Louisiana legislature amended and restructured Article
2315, placing wrongful death and survival actions into separate provisions. 1
Compare La. Civ. Code art. 2315.1 (survival action) with La. Civ. Code art
2315.2 (wrongful death action); see Barber, 97 So.3d at 462 (describing the



       1On appeal, Appellants do not challenge the district court’s holding that the pre-1986
version of Article 2315 provided for a peremptive period in survival actions.
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amendment). The text of the amended statute is ambiguous. On one hand,
Article 2315.1, which governs survival actions, still provides that the right to
recover “shall survive for a period of one year from the death of the deceased. .
. .” La. Civ. Code art. 2315.1(A). By contrast, the amended Article 2315.2,
which governs wrongful death actions, provides that “[t]he right of action
granted by this Article prescribes one year from the death of the deceased.” La.
Civ. Code art. 2315.2(B).      The difference in language between the two
provisions may indicate different meanings. See Barber, 97 So. 3d at 462 (“This
distinct difference in phrasing [between Articles 2315.1 and 2315.2] reflects
the difference between peremption, which extinguishes a right upon the
expiration of the peremptive period, and liberative prescription, which merely
sets a time limit within which one is allowed to seek enforcement of a right.”).
On the other hand, a new provision included in both the amended Articles
2315.1 and 2315.2 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 arts. 2315.1(C),
2315.2(C). This express reference to a “prescriptive period” in both Articles
may indicate that both time periods are intended to be prescriptive.          See
Watkins v. Exxon Mobil Corp., 2012-0477 (La. App. 4 Cir. 5/29/13), 117 So. 3d
548, 553 (“[T]he explicit language in Article 2315.1 C, describing the delay as
a ‘prescriptive period,’ is the ‘best evidence’ that the legislature intends what
it says in the codal article itself.”) (footnote omitted); see also 12 La. Civ. L.
Treatise, Tort Law § 5:9 (2d ed.) (stating that the question of whether the
Article 2315.1 period is prescriptive or peremptive “should be considered
settled” by the reference to a “prescriptive period” in Article 2315.1).
      The Louisiana Supreme Court has not spoken on the issue of whether
the time period in the amended Article 2315.1 is prescriptive or peremptive.
Further, there are conflicting decisions from the Louisiana appellate courts.
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                                  No. 13-30150
Compare Barber, 97 So. 3d at 462-63 (holding that the time period is
peremptive), with Watkins, 117 So. 3d at 551-53 (holding that the time period
is prescriptive), writ of review granted, No. 13-CC-1545 (La. November 8,
2013).
      Whether the time period defined by Article 2315.1 is peremptive or
prescriptive is determinative of this case. The only other issue on appeal is
whether Article 2315.1 is preempted by CERCLA, 42 U.S.C § 9658, if the time
period for a survival claim is peremptive. The CERCLA issue becomes relevant
only if it is decided that the limitations period is peremptive. If it is
prescriptive, it is subject to the Louisiana doctrine of contra non valentem, see
Jenkins, 85 So.3d at 623, and there is no need to address CERCLA preemption.
      Louisiana Supreme Court Rule XII provides for certification to that court
when there are state law questions determinative of issues before us, and
“there are no clear controlling precedents in the decisions of the supreme court
. . . .” Rules of the Supreme Court of Louisiana, Rule XII, § 1. The parties have
not moved this court to certify the question to the Louisiana Supreme Court,
but the Rule further provides that certification “may be invoked by . . . any
circuit court of appeal of the United States upon its own motion . . . .” Id. § 2.
As this court has previously stated, we are aware that “certification is not a
panacea for resolution of those complex or difficult state law questions which
have not been answered by the highest court of the state,” In re Katrina Canal
Breaches Litig., 613 F.3d 504, 509 (5th Cir. 2010) (internal alteration omitted)
(quoting Transcon. Gas Pipeline Corp. v. Transp. Ins. Co., 958 F.2d 622, 623
(5th Cir. 1992)), but “certification may be advisable where important state
interests are at stake and the state courts have not provided clear guidance on
how to proceed.” Id. (quoting Free v. Abbott Labs., Inc., 164 F.3d 270, 274 (5th
Cir. 1999)). The question of whether Article 2315.1 includes a peremptive or
prescriptive period involves important state interests, as the answer will
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define the time period governing all survival actions brought in Louisiana.
Given that the Louisiana Supreme Court has not spoken on this issue, and the
Louisiana appellate courts are divided, we find that certification is advisable.
                              III. Question Certified
      The interpretation of Article 2315.1 is a matter of Louisiana law that will
determine the outcome of this case and there are no clear controlling
precedents from the Louisiana Supreme Court. Thus, we certify the following
question of law to the Louisiana Supreme Court:
      Whether, after the 1986 amendment to the statute, the one-year
      limitations period for a survival action contained in La. Civ. Code
      Article 2315.1 is prescriptive or peremptive.

                                  IV. Conclusion
      We disclaim any intent that the Louisiana Supreme Court confine its
reply to the precise form or scope of the legal question we certify. We transfer
to the Supreme Court of Louisiana the record and appellate briefs in this case
with our certification. This panel retains cognizance of this appeal pending
response from the Supreme Court of Louisiana.
      We CERTIFY the question stated to the Louisiana Supreme Court.




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