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Energy & the Law

The Fracing Verdict – What Didn’t Get To The Jury?

Posted in Hydraulic Fracturing

As we know, the Parrs won a $2.9 million jury verdict against Aruba Petroleum for a nuisance created by gas wells near the Parrs’ home in Wise County, Texas. Let’s see what claims didn’t make their way to the jury.  (See the court’s web site for the motions  discussed below and other filings in the case).

The Pre-Trial Motions

Halliburton argued in a motion for summary judgment that there was no evidence on these claims:

  • Assault, intentional infliction of emotional distress, negligence, gross negligence, negligence per se,
  • private nuisance,
  • trespass and subsurface trespass to real property.

The court granted Halliburton’s motion on all counts.

Motions for summary judgment were filed by producer defendants asserting there was no evidence for these claims:

  • Intentional infliction of emotional distress,
  • Negligence, gross negligence, or negligence per se,
  • Civil conspiracy,
  • Causation between any alleged act or omission by the defendants and the plaintiffs’ injuries.

The court dismissed all plaintiffs’ causes of action except for nuisance and trespass.

Encana then filed a motion for summary judgment on nuisance and trespass, alleging:

  • Of its 42 wells in close proximity of the home, all but three were drilled and completed prior to the time the plaintiffs said they first experienced health symptoms. Twenty other wells were drilled by operators other than EnCana,
  • Air emissions that comply with the federal and Texas Clean Air Acts cannot be unreasonable as a matter of law with respect to a nuisance claim and cannot constitute a trespass,
  • Migratory particles do not constitute trespass as a matter of law,
  • The common law claims were preempted by the Texas and federal Clean Air Acts. Those statutes and their regulations establish permissible levels for emissions and potential contaminants. Activity that comports with those standards could not be the subject of a civil suit for compliant activity.

This motion was denied, and Encana settled before trial. Those of us who weren’t there don’t know what effect, if any, Encana’s motion had on the settlement. It’s possible that the plaintiffs saw a better target in Aruba and didn’t want to confuse the jury. EnCana was a good operator and there was evidence that Aruba had TCEQ compliance problems.

Somewhere in all this were defendants’ unsuccessful motions that the claims were barred by limitations.

Aruba challenged the damage claims in a pre-trial brief:

  • Future property damages are not recoverable for permanent damage to real property,
  • A plaintiff cannot recover for loss market value of property and costs of repair.

What does it mean?

In the end, the court allowed only nuisance and trespass to be considered by the jury. Defendants might think: We’ll still beat ”fracing plaintiffs” on the traditional causes of action. We’ll see what the trial judge and, if not him the court of appeals, does with trespass and nuisance.

Plaintiffs, without studying the evidence and legal arguments in detail, can’t tell if future cases are likely to end up like Parr, with dismissal of the traditional claims. They no-doubt see the case generally as a victory, in that the nuisance claim got to the jury.

This post doesn’t address the plaintiffs’ personal injury claims. We’ll save that for another time.

Today’s musical interlude reflects a simpler time.  Remember when you could classify a person by whether he was “Ford“ or ”Chevy“.  Giddyup.