By Douglas W. Redfearn

The focus of asbestos litigation in Louisiana has shifted from non-malignant disease cases to the more deadly lung and mesothelioma cancer cases.  The dominant questions in these cases is how and where a person was exposed to asbestos. Cases involving New Orleans Westbank area residents always raise the question of whether their asbestos exposure can be traced to the Johns-Manville (JM) shingle and pipe plants, which were located in Marrero, Louisiana, and have been closed for years.   Both JM plants manufactured pipes and shingles with asbestos.  The pipe also contained crocidolite “blue” asbestos, a particularly deadly form of asbestos associated with mesothelioma.  
As to be expected, asbestos claims continue to arise from former JM employees who were directly exposed to asbestos during their employment in the Marrero plants.  In addition and more tragically, family members of these employees have also made mesothelioma claims based on their breathing in asbestos from the employees’ clothes.  
Incredibly, there is a more insidious source of asbestos exposure.  Up until approximately 1965, residents on the Westbank of Jefferson and Orleans Parishes, Louisiana, were able to obtain “fill material” from the JM Marrero facility.  The fill material contained waste from the pipes and shingles. It was an asbestos-containing aggregate by-product that was concrete-like in consistency, and used by residents in driveways, yards and street right-of-ways.   The JM “Westbank Asbestos Site,” which is the term used by the Louisiana Department of Environmental Quality (DEQ) to describe the scope and size of the fill material contamination, includes the Louisiana communities of Bridge City, Westwego, Marrero, Harvey, Gretna and Algiers.

The JM “Westbank Asbestos Site” was first investigated by the DEQ, then referred to the Environmental Protection Agency (EPA).  Although the EPA was the lead agency responsible for removing the asbestos-containing fill material, the DEQ assisted the EPA with site investigations and preparing removal activities.    During their investigations, EPA and DEQ officials noticed children playing on the fill material and observed that cars created dust clouds when crossing over areas containing the fill material. The DEQ analytical results in February, 1990, showed samples with up to 60% asbestos content and noted a high concentration of crocidolite “blue” asbestos.  Analytical results in April, 1996, confirmed up to 60% asbestos in some bulk and soil samples.

In the mid-1990s, the EPA began  removal actions for homes and sites contaminated with  asbestos-containing fill material. Articles in the newspapers initially reported that  600 homes contained the asbestos fill material; however, that number subsequently rose to 900 sites.  As of May 14, 1997, the DEQ confirmed that a total of 1,174 sites have visible asbestos-containing material.  All totaled, the EPA removed fill material from approximately 1,400 properties.

Mesothelioma is a long-term latency disease, and may take decades to develop after exposure to asbestos.  Sadly, this means that the impact and legacy of the JM Marrero plants won’t truly be known for decades to come.

By April A. McQuillar

Acts 2009, No. 81, effective January 1, 2010, amended the Louisiana small succession law.  The Act’s amendments increase the gross dollar value of small successions, for the first time allows decedents dying with certain types of immovable property to use the small succession procedure, and simplifies certain small succession rules.
LCCP art. 3421 raises the gross value limit of a small succession from $50,000 to $75,000. Of particular interest regarding the effective date of this increase in gross value is that it applies to all small successions opened on and after January 1, 2010, regardless of the date of death of the decedent.

Previously, the small succession procedure was not available to decedents owning immovable property.  The Act changes this with the amendments to LCCP art. 3431 (A) and (D):

1. An individual with an ownership interest in “small succession immovable property” will now be able to use the affidavit small succession procedure (but note that the decedent must die intestate for this article to apply);
2. and New Paragraph D defines small succession immovable property generally as the last place of residence of the decedent or his spouse and also includes cemetery spaces.

Amended LCCP art. 3432 also simplifies the requirements for execution of a small succession affidavit.  Previously, the small succession affidavit had to be signed by all competent heirs and the surviving spouse, if any.  Now, the small succession affidavit need only be signed by at least two persons, one of which must be the surviving spouse, if any, and the other(s) being a competent major heir of the deceased.LCCP art. 3432(A)(1)-(A)(10) contains an extensive list of information that must be included in the small succession affidavit.

LCCP art. 3434 no longer requires that the small succession affidavit be submitted to the Department of Revenue. The other amendment to this Article requires the that the original affidavit and a certified copy of the decedent’s death certificate must be recorded in the conveyance records of the parish where the small succession property is located.  Under the amended Article, an action against third parties who acquire an interest in the small succession immovable property by a person who claims to be a successor of the decedent, but who was not recognized as such in the small succession affidavit, is subject to  a two year prescriptive period.

The Act repeals LCCP art. 3433, which required that the inheritance tax collector certify that no inheritance taxes are due upon review of the affidavit and endorse the multiples of the original affidavits to be returned to the heirs and surviving spouse.

Practitioners should welcome these new changes.

By Christopher M. Guidroz

As a result of the publicity surrounding the U.N. Climate Change Conference held in Copenhagen this last December, and the ongoing Washington debate regarding energy independence, most of us have some familiarity  with the various federal programs providing tax credits, grants and favorable financing to individuals and corporations who increase energy efficiency by utilizing renewable energy sources, such as hydrokinetics, wind, solar or geothermal.   With this current focus on federal programs, however, it is easy to overlook the significant steps Louisiana has taken to encourage energy efficiency and the development of renewable energy sources.  The summary outline below  highlights that Louisiana is one of the most progressive states when it comes to tax credits and programs for renewable energy.

Solar and Wind Energy Credit. Individuals and corporations who install solar or wind energy systems can receive a state tax credit of 50% of the first $25,000 of the cost of each system. The Louisiana credit is in addition to federal tax credits, and the Louisiana tax credit  is  refundable, meaning you can get a check back from the Department of Revenue for up to $12,500.

Net Metering. Special rules adopted by the Public Service Commission and the New Orleans City Council make Louisiana one of the few places that  require utility companies to allow “net metering”.  So, if you are not home, or it’s a nice day and you have your windows open, and  are not using the energy generated by your renewable system, you can instantaneously sell the excess electricity your system is then producing to your utility company.
Department of Natural Resources Programs.  The Louisiana Department of Natural Resources administers two important programs: (1) the Home Energy Rebate Option (HERO) Program under which homeowners can  receive rebates of up to 20% of the cost of energy efficiency improvements or the cost of energy saved, provided the improvements increase a building’s efficiency by 30%; and (2)  the Home Energy Loan Program (HELP) which allows homeowners to obtain a five-year special reduced-rate loan to improve energy efficiency.
Reduced Rate Incentives.  Both the CLECO and DEMCO utilities also provide special reduced rate incentives to customers who make energy efficiency improvements.

Energy Efficiency Measures. Louisiana enacted legislation in July, 2007, which requires energy efficiency measures to be incorporated in the construction and renovation of every major facility project funded by the state.
Property Tax Exemption.  There is also a special property tax exemption for renewable energy systems installed on your property.

Mr. Wilson has been appointed as a member of the External Advisory Board for the Louisiana Coastal Sustainability Studio, an experimental program being developed by LSU's Coastal Studies Institute to develop, coordinate and implement coastal restoration projects in a manner that will maximize efficiency and benefits in an effort to save our rapidly disappearing coast. The first project being developed is associated with the area of Bayou Bienvenue and the Lower Ninth Ward.

View Mr. Wilson's full bio here

Mr. Wilson will address the Louisiana Landowner's Association on March 12, 2010 at their monthy meeting in Baton Rouge on the topic of liability issues on privately owned wetlands.

View Mr. Wilson's full bio here

Simon, Peragine, Smith & Redfearn is pleased to announce the following attorneys have become partners:

Susan M. Caruso

Ms. Caruso received her Juris Doctor degree from Tulane School of Law. She practices in the following areas: commercial litigation, insurance defense, general civil litigation, products liabiality, environmental and toxic tort.

James R. Guidry

Mr. Guidry received his Juris Doctor degree from Louisiana State University Paul M. Hebert Law Center. Mr. Guidry practices in the following areas: general liability, products liability and toxic tort defense.
April A. McQuillar: Ms. McQuillar received her Juris Doctor degree from Loyola University School of Law. Ms. McQuillar practices in the following areas: general civil litigation, insurance defense, products liability and toxic tort defense.

Charles E. Riley, IV

Mr. Riley received his Juris Doctor from Tulane University School of Law.  Mr. Riley practices in the following areas: civil litigation, general casualty work, insurance subrogation, automobile liability, premises liability, transportation/trucking liability and insurance coverage.

Simon, Peragine, Smith & Redfearn is an active member of Legus, a network of international law firms. As a member of this organization, Simon, Peragine is able to provide clients with access to quality legal representation throughout the United States, South and Central America, Europe, Asia and the Far East. We at Simon, Pergaine, Smith & Redfearn are honored to have been selected as network member.

SPS&R recently filed a motion for summary judgment on behalf of Susan Henderson Montgomery, asking the state district court in New Orleans to rule that Tulane University violated the charges and conditions contained in the will of Josephine Louise Newcomb when it closed Newcomb College and ended its 119-year history as the first coordinate women's college in the United States, and to direct Tulane to reopen Newcomb and restore its endowments.

Montgomery v. Tulane is a follow-up to the earlier case of Howard v. Tulane, also handled by SPS&R, which resulted in a 2008 landmark ruling by the Supreme Court of Louisiana that would-be heirs who inherit nothing from an ancestor’s estate have the right to enforce a condition in their ancestor’s will. Previously, these would-be heirs only had a poorly defined right to revoke a conditional donation or bequest if the donee violated the condition. By ruling that this class of plaintiffs, called would-be heirs or successors, have a right to enforce a conditional bequest in their ancestor’s will, the Supreme Court set the stage for the current litigation, in which the plaintiff is a great-great-great niece of Mrs. Newcomb. Following up on the ruling in Howard, Mrs. Montgomery asked the court in New Orleans to enforce the charge in Mrs. Newcomb's will that Tulane "continue to use and apply the benefactions and property, I have bestowed and may give, for the present and future development of this Department of the University known as the H. Sophie Newcomb Memorial College which engrosses my thoughts and purposes, and is endeared to me by such hallowed associations."

Montgomery v. Tulane is a significant case in the increasingly important area of donor intent in making bequests to educational and charitable institutions. To read the pleadings filed on behalf of Mrs. Montgomery, click here.

Our firm was the first tenant in the Energy Centre in July 1984. We have renewed our lease and are happy to call the Energy Centre home for the next 15 years.