Inside Report for July 23, 2013

Deadline murky for sinkhole suits

More than a year into the Bayou Corne saga, the facts of this suspected man-made disaster are well-known.

An underground Texas Brine Co. salt dome cavern failed, unseen, at some point before May 30, 2012, when a bubbling stretch of bayou first was reported to authorities.

The sinkhole, discovered Aug. 3 on Texas Brine’s site, led to an evacuation order while the threat of flammable gas later found under the Bayou Corne community of 350 people helped keep the evacuation in place for more than 11 months.

Meanwhile, murky questions remain about the legal deadline to file suit for those affected by the sinkhole and the evacuation.

Texas Brine has been conducting two-track negotiations with Bayou Corne residents seeking compensation for their damages or total buyouts. The company says it has focused on those who want out-of-court settlements first while it still works with attorneys for those residents who filed suit.

A trial date was set for April in the class-action suits. U.S. District Judge Jay C. Zainey recently extended, until July 31, the time Texas Brine has to negotiate directly with residents who are in the class.

Lindsey Blanchard faced this worry in May and June — sue and wait, or work with Texas Brine. After back-and-forth negotiations, Blanchard said, he got the written offer he was looking for, though he has not received his check yet.

“They kind of pushed it till the end, and, in the end, they agreed with my proposal, so I had no reason not to accept. I am totally satisfied,” Blanchard said July 10.

Plaintiffs typically have a year to file suit, but the starting date for the Bayou Corne incident is less clear.

William Corbett, an LSU law professor, said the case raises the legal principle known as contra non valentem. Under its criteria, the one-year period to sue does not start until people have enough information to reasonably know to file suit against someone.

Consider these dates:

  • On May 30, 2012, Bayou Corne resident Dennis Landry reported the bubbles in the bayou to a pipeline company.
  • In June 2012, tremors were first reported and some homes allegedly were damaged.
  • Late on Aug. 2 or early on Aug. 3, 2012, the sinkhole surfaced near the Bayou Corne community.
  • On the evening of Aug. 3, 2012, state officials first raised the possibility that Texas Brine’s cavern failed and its failure may be tied to the sinkhole’s formation.

“My guess is it is going to take more than the bubbles to put those people on notice they needed to file the lawsuit,” Corbett said.

Based on the information he had, he said, it seemed Aug. 2 or Aug. 3 would be the deadline, adding that it would be “a precarious situation” to keep negotiating after that date.

Bradley Myers, Texas Brine’s attorney, said in early May, under pressure from residents and with warning he was not giving legal advice, that the company considered Aug. 3, 2012, as the starting point for the one-year lawsuit limitation period.

Some suits were filed in the days and weeks after the sinkhole emerged. More recently, several suits were filed around May 30. Attorneys said they were being cautious.

“In order to be safe, you file early rather than late,” Donaldsonville lawyer Sidney Marchand III said.

David Mitchell, who has been covering the Bayou Corne sinkhole incident for The Advocate, can be reached at dmitchell@the
advocate.com.