Thomas D. BAYER and Laura D. Kelley v. STARR INTERNATIONAL CORPORATION, Cimarron, LLC, Entergy New Orleans, Inc., Entergy Louisiana, LLC and Entergy Gulf States Louisiana, Inc.

Thomas D. Bayer and Laura D. Kelley v. Starr International Corporation, et al.

NO. 2017-CA-0948 NO. 2017-CA-0257

Court of Appeal of Louisiana, Fourth Circuit.

MAY 2, 2018

David W. Bernberg, 228 St. Charles Avenue, Ste. 501, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT

L. Peter Englande, Jeffrey E. McDonald, Randell E. Treadaway, TREADAWAY BOLLINGER, LLC, 406 North Florida Street, Suite 2, Covington, LA 70433, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )

Judge Joy Cossich Lobrano *48The sole issue presented for appellate review concerns the recovery for emotional distress and mental anguish resulting from fire damage to property. After reviewing the record and applicable law, we affirm in part, reverse in part, and remand the remaining issue to the district court for further proceedings.

This litigation arises out of a fire that occurred at a house owned by plaintiff/appellant, Thomas D. Bayer, at 7418-7422 Maple Street in New Orleans, Louisiana.1 On April 23, 2014, employees of Cimarron Underground, Inc. ("Cimarron"), were attempting to switch out a gas meter underneath the house when they accidently started a fire. Neither Bayer nor Laura D. Kelley, also plaintiff/appellant, and a resident of the house, was present at the property at any time during the fire. Bayer was at Tulane University's Riley Center while Kelley was at Tulane's Elmwood campus.

By the time Bayer and Kelley returned to the house, the fire had been extinguished, however, Bayer testified "lots of smoke" was still present. Bayer stated that minor damage to the asbestos siding on the house was visible. He opened the front door to let himself and firefighters into the house. Inside he found small particles of ash, referred to by him as soot or ash. Kelley was also able to access the house after the incident. Kelley admitted in her deposition that she did not lose any items in the fire, and left the property before emergency personnel dispersed. Plaintiffs had complete access to the house after the fire and during renovations.

Plaintiffs filed suit against Cimarron, Starr Indemnity & Liability Company, Entergy New Orleans, Inc., Entergy Louisiana, L.L.C., and Entergy Gulf States Louisiana, Inc. in April 2015. On April 27, 2016, the defendants filed a motion for summary judgment seeking to dismiss the claims for emotional distress asserted by the plaintiffs.2 The motion was heard on August 12, 2016 and the motion for summary judgment was granted by the district court on September 26, 2016.

Plaintiffs filed a motion for new trial on September 29, 2016, which was denied on December 6, 2016. Plaintiffs appealed the denial of their motion for new trial. On August 15, 2017, this court found that the prior judgement lacked the necessary decretal language and remanded the matter to the district court. The district court signed a new judgment on October 10, 2017, granting defendants' motion for summary judgment and denying plaintiffs' motion for new trial. Plaintiffs have appealed this most recent judgment.

In its reasons for judgment, the district court found that:

> *49Thomas Bayer did not witness the destruction of his home, did not take medication, or seem unusually upset. Thomas Bayer alleged high blood pressure, but such had already manifested itself prior to the incident. Thomas Bayer states he is going to take a medical examination to determine if his tinnitus is due to the incident. However, doctors in previous medical examination of Thomas Bayer did not provide that the tinnitus is a result of the incident.

> Laura Kelley was not nearby or present at the incident and Thomas Bayer only has the usual worry and inconvenience of damage to his property.

The standard of review of the granting of a summary judgment is *de novo.* This court discussed the standard of review for summary judgment in *Ducote v. Boleware* , 15-0764, p. 6 (La.App. 4 Cir. 2/17/16), 216 So.3d 934, 939, *writ denied* , 16-0636 (La. 5/20/16), 191 So.3d 1071, as follows:

> Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by district courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.

Damages are generally awarded in property damages cases when the property is damaged by: (1) an intentional or illegal act; (2) an act for which the tortfeasor will be strictly or absolutely liable; (3) acts constituting nuisance; or (4) acts occurring when the owner is present or at the time, or shortly after, damage was negligently inflicted and suffers psychic trauma as a result. *See**Williams v. City of Baton Rouge,* 98-1981, p. 15 (La. 4/13/99), 731 So.2d 240, 250 n. 5. *See also* Frank L. Maraist & Thomas C. Galligan, Jr., *Louisiana Tort Law* § 7.02[6] (2d ed. 2004). "The jurisprudence...has limited such recovery by requiring that the emotional distress be severe and not merely the result of the usual worry or anxiety attendant to property damage." *Smith v. University Animal Clinic, Inc.,* 09-745, pp. 1-2 (La.App. 3 Cir. 2/10/10), 30 So.3d 1154, 1156, *writ denied,* 10-0566 (La. 5/28/10), 36 So.3d 247 (*quoting**Doerr v. Mobil Oil Corp.,* 04-1789, p. 9 (La.App. 4 Cir. 6/14/06), 935 So.2d 231, 237, *writ denied,* 06-1760 (La. 11/3/06), 940 So.2d 664 ).

"Every incident of property damage is necessarily accompanied by some degree of worry and consternation over such things as possible financial loss, settlement of insurance claims, and discomfort or inconvenience while awaiting and undergoing repair work." *Trim v. South Eastern Exp., Inc.,*562 So.2d 26, 28 (La.App. 5th Cir. 1990) (*quoting**Thompson v. Simmons,*499 So.2d 517, 520 (La.App. 2d Cir. 1986), *writ denied,**50501 So.2d 772 (La. 1987) ). Owners of damaged property may not recover for such mental anguish unless they prove that they suffered a psychic trauma in the nature of or similar to a physical injury as a direct result of the property damage. *Barrios v. Safeway Ins. Co.,* 11-1028, p. 6 (La.App. 4 Cir. 3/21/12), 97 So.3d 1019, 1022-23 ; *Elston v. Valley Elec. Membership Corp.,*381 So.2d 554, 556 (La.App. 2d Cir. 1980).

We first address the claim for emotional distress asserted by Kelley. Here, we find that the district court correctly granted summary judgment. Kelley did not own the home in question or its furnishings. She did not identify any personal property she lost in the fire; in fact, she had no property damage whatsoever. She reported some stress and visited her chiropractor two times for treatment. However, the jurisprudence requires more to recover. We find that her claim was properly dismissed with prejudice by the district court.

We turn now to Bayer. He did own the house and all its furnishings including an extensive art collection. At the time of the fire, Bayer was exercising at the Riley Center. Kelley contacted the Center to inform him of the fire; Bayer testified that he heard: " 'Thomas Bayer, please go to your home...Please go to your home. Your house is on fire.' " Bayer lived about one mile from the Riley Center; he testified that he ran home. He arrived at the scene shortly after the fire was extinguished, but still saw lots of smoke. He arrived just before the firefighters were to break in his front door to gain entry to the house.

He stated that he began to experience tinnitus about two months after the fire. Despite physical examinations and tests, no known underlying physiological reason for the tinnitus could be found. No medication is available for the condition. Bayer testified that the tinnitus has impacted his life.

We find that a genuine issue of material facts exists as to whether Bayer's tinnitus is related to the fire at his home and the resulting stress he experienced in its immediate aftermath. Consequently, the district court erred when it entered a summary judgment against him. Because we find that summary judgment was inappropriate, we pretermit discussion of the district court's alleged error in denying the motion for new trial.

Based on the foregoing, we affirm the summary judgment entered against Laura D. Kelly, dismissing her claims with prejudice, reverse the summary judgment against Thomas D. Bayer, and remand the case to the district court for further proceedings consistent with this opinion.

**AFFIRMED IN PART; REVERSED IN PART; REMANDED.**

1

Bayer also had five tenants living on the property.

2

Plaintiffs' related claims for property damage, relocation, temporary housing and living expenses, and other incidental damages, were previously paid, and were not a part of the litigated claim. All Bayer's tenants were similarly reimbursed for all expenses incurred as a result of displacement, including the boarding of a tenant's dog.

LOVE, J., CONCURS IN PART AND DISSENTS IN PART

LOVE, J., CONCURS IN PART AND DISSENTS IN PART

I respectfully concur in part and dissent in part. I agree with the majority that genuine issues of material fact exist as to Dr. Thomas Bayer which precludes granting of summary judgment in the defendants favor. Unlike the majority, however, I find genuine issues of material fact also exist as to Dr. Laura Kelley. The trial court relied on *Prather v. Audubon Ins. Co.* , 488 So.2d 383 (La. App. 3rd Cir. 1986), and the proximity test to grant defendants' motion for summary judgment. I find the trial court's reliance on *Prather* misplaced. In *Prather* , it took the plaintiff 35 minutes to arrive at the accident scene and no evidence was offered as proof of mental anguish. By contrast, Dr. Bayer arrived at *51the home within seven minutes of learning of the accident and Dr. Kelley arriving quickly after Dr. Bayer's arrival. This case is further distinguished from *Prather* as the plaintiff's claim in that case was based solely on mental anguish and did not seek recovery for inconvenience or loss of use.

I find this case is more analogous to *Sierra v. American Alternative Ins.Corp.* , 13-1808 (La. App. 1 Cir. 6/16/14), 147 So.3d 1125. The Sierras were at the hospital when they learned that a fire truck crashed through an exterior wall of their home. Like Drs. Bayer and Kelley, the Sierras rushed to home to find many people at their home, including firemen who were working at the site of the crash. Also like Drs. Bayer and Kelley, the Sierras sustained such damage that they could not live in their home while it was being repaired.

Drs. Bayer and Kelley testified concerning the extreme stress they experienced as a result of the damage to their home. Both individuals arrived within seven minutes of being informed that their house was on fire. Dr. Kelley testified that she when she arrived at the house and learned that someone from Cimarron cut a live gas line causing an explosion, she feared the worst. She testified that she arrived to a scene "fraught with chaos" and feared that someone may have died. Dr. Bayer testified that he arrived on the scene as firemen were attempting to break down the front door.

Drs. Bayer and Kelley both testified to their loss of permanency, the strain placed on their relationship, and Dr. Bayer's worries about the disruption, inconvenience, and discomfort caused to his tenants.1 They indicated that they were displaced from the property for seven weeks, during which time they were provided alternative housing. Nevertheless, they were forced to repeatedly pack up and move from one hotel to the next six times in the first ten days.

They both testified to the disruption the accident caused to their daily activities and the careers. Dr. Bayer testified that he usually spends his summers traveling; however, because of the incident he was forced to refocus his activities, including supervising the repair work. Additionally, his insurance would not cover his extensive art collection and other valuables in his home during the repairs because the home was without a working security system as a result of the accident and the City turning off the electricity to his home. Because he had no other means to protect his collection, he was constantly worried that his possessions would be stolen. Consequently, he would arrive at the home early in the morning and stay late into the night. He explained that his time at the home was insufferable due to the excessive heat as a result of no electricity or use of a bathroom or running water. He would also randomly visit in the middle of the night to create a pattern of irregularity to deter anyone from stealing from the home, which contributed to his worries and lack of sleep. Dr. Bayer also testified that while he regularly had his blood pressure checked, during the time in question, his doctor noticed his blood pressure was higher than normal. He indicated that his doctor attributed the spike in his blood pressure to stress relating to the fire. As a result, he was placed on medication until it normalized later in the year.

Dr. Kelley also testified that she experienced stress, disappointment, and frustration *52after being displaced from her home. She testified to the extreme pressures she was under as a result of being displaced from her home and her office. She testified that her office was in their home and because the home (as mentioned above) was inhabitable it caused significant disruption to her professional career. When the accident occurred, Dr. Kelley was recently named the academic director for Tulane's summer study abroad program in Dublin. It was her first tenure in the role, and she was responsible for creating a curriculum for the entire program. She explained that repeatedly moving from one hotel to the next and the loss of permanency was extremely stressful while trying to plan an entire program curriculum, prepare lesson plans for two courses she would teach, create the necessary course materials, lectures, and plan excursions and field trips without the ability to work from her home office, which contained many of the resources and materials she needed to direct the new program. Dr. Kelley testified to the strain the situation placed on her relationship with Dr. Bayer as he took on everything so that she could try to focus on getting her program ready for the students that summer.

Dr. Kelley's loss of the use of her office, which was set up for her specific health needs, also contributed to the stress and anguish attendant to the property damage. She testified that she has a treadmill work station in her home office that she uses to assist with her back pain. She testified that the fire deprived her of the use of her home office, exacerbating problems with her back. She indicated that she visited the chiropractor twice after the accident to address issues she began having after the accident. She testified that she carries stress in her shoulders and also began getting headaches after the fire. Further, Dr. Kelley testified about lingering anxiety she experienced when defendants began work in other parts of the neighborhood, fearing that another explosion and fire might occur.

Review of the trial court's written reasons demonstrates that it erroneously weighed the evidence and made certain factual determinations. I find the foregoing testimony sets forth sufficient evidence from which a trier of fact may reasonably conclude that Drs. Bayer and Kelley suffered mental anguish and emotional distress that amounted to more than minimal worry of being displaced from their home. A trier of fact may reasonably conclude that the anguish was a direct result of being dispossessed of their home. Therefore, I conclude there is sufficient evidence showing in the record to preclude summary judgment as it relates to the claims of Drs. Bayer and Kelley. Accordingly, I concur in part and dissent in part.

1

Dr. Bayer testified to having stressful and confrontational interactions with defendants regarding how they were treating his tenants, one of whom was a law student in the midst of her final law exams.