ZURICH INSURANCE COMPANY v. KAISER ALUMINA CHEMICALS, ET AL

Civil Action No: 00-1800 C/W NO. 00-2341 Section: “D” (5)United States District Court, E.D. Louisiana.
June 13, 2001

J. McNAMARA, Judge.

Before the court is the “Motion for Partial Summary Judgment” filed by Defendants, Kaiser Alumina Chemicals and Kaiser Aluminum Chemical Company. Plaintiff, Zurich Insurance Company, filed a memorandum in opposition. The motion set for hearing on Wednesday, June 13, 2001, is before the court on briefs, without oral argument.

Having reviewed the memoranda of counsel, the record, and the applicable law, the court finds that there are no genuine issues of material fact and Defendants are entitled to partial judgment as a matter of law, dismissing Zurich’s tort claims and any claim for damages allegedly sustained after December 31, 1999.

In this matter, Zurich seeks recovery of the increased costs for the purchase of alumina trihydrate that its insured, PQ Corporation, allegedly incurred after Alumina could no longer supply PQ with alumina trihydrate due to an explosion at the Kaiser plant in Gramercy, Louisiana on July 5, 1999. As the subrogated insurer of PQ, Zurich sues Defendants for breach of contract, and for negligence although Zurich does not claim that PQ suffered personal injury or physical property damages.[1]

However, as a matter of law, Defendants had no general legal duty (independent and separate from a contractual duty) to sell or supply alumina trihydrate to PQ. See e.g., PPG Industries, Inc. v. Shell Oil Co., 727 F. Supp. 285, 288-89 (E.D.La. 1989) (dismissing tort claim by PPG against Shell where Shell’s alleged negligence in causing explosion at its refinery prevented it from delivering contracted amounts of ethylene); City of New Orleans v. United Gas Pipe Line Co., 517 So.2d 145, 167 (La.App. 4th Cir. 1987) (utility company’s damages were not the result of any breach of a general legal duty by the supplier of natural gas, but by the breach of duties arising exclusively from contracts).

Further, Zurich has no supportable contractual claim for alleged damages occurring after December 31, 1999, since the contract at issue expired on that date.[2] Finally, Plaintiff’s allegations against Defendants fail to fall within the narrow parameters of Louisiana’s cause of action for tortious interference with a contract,[3] and Plaintiff has failed to adequately plead detrimental reliance and negligent misrepresentation, or offer any summary judgment evidence in support of such claims. In short, the only showing of any promise or representation made by Defendants to PQ is that which is contained in the subject sales contract.

Accordingly;

IT IS ORDERED that Defendants’ “Motion for Partial Summary Judgment” be and is hereby GRANTED, dismissing Zurich’s tort claims and any claim for damages allegedly sustained after December 31, 1999.

[1] See Zurich’s state court “Petition for Breach of Contract and in Tort” attached to Defendants’ Notice of Removal, Record No. 00-2341, Doc. No. 1.
[2] See Defendants’ Exhibit A, Sales Contract between PQ and Kaiser LaRoche (stating period covered: January 1, 1998 through December 31, 1998); Defendants’ Exhibit B, Fax letter from Kaiser to PQ re: price of alumina trihydrate effective January 1, 1999; Defendants’ Exhibit C, confirmation letter re: price of aluminum trihydrate for 1999; Defendants’ Exhibit E, Plaintiffs CPA Report, p. 2, stating “[t]he Kaiser Aluminum contract at $155 per ton expired on December 31, 1999”.
[3] 9 to 5 Fashions v. Spurney, 538 So.2d 228 (La. 1989); Egorov, Puchinsky, Afanaasiev Juring v. Terriberry, Carroll Yancey, 183 F.3d 453, 457 (5th Cir. 1999).