Mike Legros v. Arc Services, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-0918

MIKE LEGROS

VERSUS

ARC SERVICES, INC., ET AL

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 1997-7329
HONORABLE ROBERT L. WYATT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Billie Colombaro Woodard, Marc T. Amy,
Michael G. Sullivan and Billy H. Ezell, Judges.

AMY, J., DISSENTS AND ASSIGNS WRITTEN REASONS.

SULLIVAN, J., DISSENTS FOR THE REASONS ASSIGNED BY JUDGE
AMY.

REVERSED.

Gregory Marceaux
Marceaux Law Firm
1800 Ryan Street, Suite 101
Lake Charles, LA 70601
(337) 433-3300
COUNSEL FOR PLAINTIFF/APPELLANT:
Mike LeGros

Benjamin Mount
Bergstedt & Mount
P.O. Drawer 3004
Lake Charles, LA 70602-3004
(337) 433-3004
COUNSEL FOR DEFENDANT/APPELLEE:
ARC Services, Inc.

Matthew Landreau
Jones, Walker, Waechetr, Poitevent, Carrere & Denegre
500 Dover Blvd., Suite 120
Lafayette, LA 70503
(337) 406-5610
COUNSEL FOR DEFENDANT/APPELLEE:
Cummins Engine Co., Inc.

SAUNDERS, J.

Mike LeGros appeals the judgment of the trial court granting Cummins Engine

Co., Inc.’s (“Cummins”) Peremptory Exception of Prescription. We reverse.

FACTS

Mr. LeGros owns and operates the commercial shrimping vessel “Mrs. Angie.”

On March 24, 1995, Mr. LeGros purchased an 855 cubic inch 400 horsepower

Cummings continuous heavy-duty engine from ARC Services, Inc. (“ARC”), for use

on the “Mrs. Angie.” However, what Mr. LeGros actually received and had installed

on his vessel was a rebuilt 855 cubic inch 400 horsepower Cummins continuous

medium-duty engine.

Immediately after purchasing and installing the engine Mr. LeGros experienced

problems with it. On the second or third night of use, the engine overheated and the

manifold burst. ARC performed the necessary overhaul of the engine. Despite this

overhaul, the engine continued to experience problems on use and required two

additional overhauls by ARC, the final overhaul by ARC was performed in July of

1995.

In September of 1995 the engine’s manifold and turbo needed to be replaced

again. ARC did not have all necessary replacement parts, so Mr. LeGros had the

engine repaired by a different shop. The appellant claims that the engine continued

to run hot, and he eventually asked Gulf Coast Power to look at the engine and try to

determine why it continued to run hot. In November of 1996 the cam shaft was pulled

from the engine and Gulf Coast Power informed Mr. LeGros that the wrong cam shaft

had been installed in the engine. Although replacing the cam shaft alleviated many

of the problems with the engine, the prior overheating of the engine damaged it to the

point that it had become useless.

On August 28, 1997 Mr. LeGros filed a redhibitory action against ARC

claiming that the engine contained redhibitory defects and that he was entitled to the

return of the purchase price, damages, and attorney’s fees. ARC filed an exception

of prescription, which was granted by the trial court but reversed by this court. On

June 11, 1999, Mr. LeGros filed a First Supplemental and Amending Petition naming

Cummins as a defendant, re-alleging his redhibitory action against ARC, and alleging

a redhibitory action against Cummins.

A hearing on Cummins’ exception of prescription was held on May 9, 2003.

The trial court granted Cummins’ Exception of Prescription, stating: “I am not

convinced at this time that Cummins is a solidary obligor with ARC and as such I find

that I believe this matter has prescribed. I don’t think that the filing of the

Supplemental and Amending petition was timely, and, accordingly, it has prescribed.”

Mr. LeGros presents the following issue on appeal: “Whether the trial court

erred in sustaining the exception of prescription, as prescription did not run against

Cummins as Cummins and ARC are solidary obligors.”

DISCUSSION

Under Louisiana law, a buyer is entitled to a warranty against redhibitory vices

unless it has been expressly waived. Louisiana Civil Code art. 2520 provides:

The seller warrants the buyer against redhibitory defects, or vices,
in the thing sold.

A defect is redhibitory when it renders the thing useless, or its use
so inconvenient that it must be presumed that a buyer would not have
bought the thing had he known of the defect. The existence of such a
defect gives a buyer the right to obtain rescission of the sale.

A defect is redhibitory also when, without rendering the thing
totally useless, it diminishes its usefulness or its value so that it must be
presumed that a buyer would still have bought it but for a lesser price.
The existence of such a defect limits the right of a buyer to a reduction

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of the price.

A waiver of such warranty against redhibitory defects must be written, and must

be presented in clear and unambiguous terms. Tuttle v. Lowrey Chevrolet, Inc., 424

So.2d 1258 (La.App. 3 Cir. 1982). There is no evidence of such a waiver in the

instant matter.

Mr. LeGros argues that, under Louisiana law, a seller and a manufacturer are

solidarily liable to a buyer for redhibitory defects in a thing sold. In support of his

argument Mr. LeGros cites the landmark Louisiana Supreme Court case Media

Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 So.2d 377

(La.1975). In that case, a buyer sued the auto dealer to recover the purchase price of

an automobile so defective as to require the avoidance of the sale. The plaintiff

obtained a judgment against the automobile dealer, who had since gone out of

business. The issue before the supreme court was whether the plaintiff could recover

the cost of the vehicle from the manufacturer, Mercedes-Benz of North America. The

supreme court held:

Two warranty obligations are inherent in every sale, the warranty
of merchantable title and the warranty of reasonable fitness for the
product's intended use. LSA-C.C. Arts. 2475, 2476.

....

Louisiana has aligned itself with the consumer-protection rule, by
allowing a consumer without privity to recover, whether the suit be
strictly in tort or upon implied warranty. Marine Ins. Co. v. Strecker,
[234 La. 522, 100 So.2d 493 (1958) ]; LeBlanc v. Louisiana Coca Cola
Bottling Co., 221 La. 919, 60 So.2d 873 (1952).

We see no reason why the rule should not apply to the pecuniary
loss resulting from the purchase of a new automobile that proves unfit
for use because of latent defects.

....

The pecuniary loss resulting from an unusable vehicle is

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recoverable when there is an Express warranty without privity.
(Citations omitted). Although there is a split of authority on the
question, we find no adequate reason for not applying the same rule and
allowing recovery when there is an Implied warranty without privity.
(Citations omitted).

We hold, therefore, that Mercedes-Benz of North America, Inc.,
is solidarily liable with Cookie's Auto Sales, Icn. [sic] for the price of the
automobile and other allowable expenses.

Id. at 380-81.

This holding by the supreme court was later relied upon by the First Circuit in

Womack and Adcock v. 3m Business Products Sales, Inc., et al, 316 So.2d 795

(La.App. 1 Cir. 1975). The case involved a redhibitory action in which plaintiffs

sought recission of the sale of a defective 3M copier. In Womack the First Circuit

stated:

Under the articles of the Louisiana Civil Code the buyer can bring
an action against the seller to rescind the sale for breach of implied
warranty; LSA-C.C. Arts. 2475, 2476, 2520, 2530. Since the now
famous case of Media Pro. Consult., Inc. v. Mercedes-Benz of N.A .,
Inc., 262 La. 80, 262 So.2d 377 (1972), noted in 33 La.L.Rev. 724
(1973) and 47 Tul.L.Rev. 473 (1973), the buyer's action for breach of
implied warranty has been extended to all sellers in the chain of sales
back to the primary manufacturer; see Rey v. Cuccia, La., 298 So.2d 840
(1974); Clark v. McBride Dodge, Inc., 298 So.2d 841 (La.App.4th Cir.
1973); Breaux v. Winnebago Industries, Inc., 282 So .2d 763 (La.App.1st
Cir. 1973); Barham: Redhibition; A Comparative Comment, 49
Tul.L.Rev. 376 (1975).

As the Court aptly stated in the Media case, supra, at page 381:

‘Louisiana has aligned itself with the consumer-protection rule, by
allowing a consumer without privity to recover, whether the suit
be strictly in tort or upon implied warranty.’

Id. at 796.

The holdings of the above cases have been incorporated into the supporting text

of La.Civ.Code art. 2545 in Revisions Comments (c) and (d). As such, these

comments represent the accepted interpretation of article 2545 and its effect in

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conjunction with established Louisiana jurisprudence and they have the effect of

creating a presumption of solidary liability between manufacturers and sellers

redhibition actions. After thirty years these holding still represent good law, and we

confirm their legitimacy here.

Mr. LeGros further argues that, under Louisiana law, suit against one solidary

obligor in a court of competent jurisdiction and proper venue acts to interrupt

prescription as to all solidary obligors. Cart v. Ducote, 490 So.2d 731 (La.App. 3 Cir.

1986). He contends that, as he has established the existence of a redhibitory defect

in the engine, his filing suit against ARC served to interrupt prescription on his claim

against Cummins due to its solidary liability with ARC in this redhibitory action.

Cummins first argues that one possible way for Mr. LeGros to show that his

redhibition claim has not prescribed is to prove that the first supplemental and

amending petition relates back to the date of the original petition. Cummins cites

several cases to support its contention that such a relating back is not applicable in the

instant matter. While we find no fault with Cummins’ analysis of the principle of

relating back, it is an issue that is simply not before the court at this time. Mr.

LeGros’ sole argument against the prescription of his claim against Cummins is

limited to the ground that solidary liability exists between seller and manufacturer in

redhibitory defect actions, as provided by Louisiana case law and the Revision

Comments of La.Civ.Code art. 2545. Therefore, this line of argument by Cummins

is moot and need not be addressed further.

As to Mr. LeGros’ solidary liability claim, Cummins contends that solidary

obligor status does not exist between ARC and Cummins. Cummins cites Davis v.

Burlingame, 607 So.2d 853 (La.App. 2 Cir. 1992), writ denied, 612 So.2d 84 (La.

1993), for the proposition that a seller and manufacturer are not solidary obligors

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unless the seller is a professional vendor. Cummins argues that professional vendor

status does not exist in this matter, and, therefore, it cannot be solidarily liable with

ARC. Mr. LeGros argues that the instant matter is distinguishable from Davis. Davis

is a products liability case, where the plaintiff is seeking damages for personal injury.

The court in Davis states that the seller is generally not liable in products liability

cases unless there is a showing of negligence on their part. Mr. LeGros contends that

this same legal principle does not hold true in redhibition claims, where the seller must

merely show a defect in the product sold and solidary liability is provided by

precedent.

We agree with Mr. Le Gros, that Davis is clearly distinguishable from the

instant matter. As the case law cited above states, solidary obligor status is

established between a manufacturer and seller in cases of redhibitory defects. The

extent of Cummins’ actual liability for the effective engine, if any, is a matter for the

trial on the merits. Cummins’ solidary obligor status with ARC interrupted

prescription when Mr. LeGros timely filed his claim against ARC, therefore, the trial

court erred in granting Cummins’ exception of prescription.

DECREE

We find that Cummins and ARC are solidary obligors the trial court’s grant of

Cummins’ Peremptory Exception of Prescription was manifestly erroneous. All costs

of this appeal are assigned to the appellees.

REVERSED.

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NUMBER 03-918

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

MIKE LEGROS
Plaintiff - Appellant

VERSUS

ARC SERVICES, INC., et al.
Defendant - Appellee

AMY, J., dissenting.

I respectfully disagree that a reversal is warranted. In my opinion, the trial

court’s determination should be affirmed. Although I agree that the redhibition

provisions of the Civil Code—as opposed to the Revised Statutes pertaining to

products liability—apply herein, I differ in my approach as to the application of the

relevant jurisprudence to the facts of the instant matter.

In Womack and Adcock v. 3M Business Products Sales, Inc., 316 So.2d 795

(La.App. 1 Cir. 1975), cited by Mr. LeGros on appeal, the first circuit repeated the

principle of solidarity described in Media Production Consultants, Inc. v. Mercedes-

Benz of North America, Inc., 262 So.2d 377, 262 La. 80 (La.1972), as follows: “Under

the cases of Media, Rey, Clark, and Breaux [sic], cited Supra [sic], it is clear that when

a sale is rescinded because of a redhibitory defect related to the original manufacture

of the product, the buyer may recover the pecuniary loss resulting from the purchase

from the manufacturer as well as from the seller.” (Emphasis added.) Womack, 262

So.2d at 797. In my opinion, it is this very language, “related to the original

manufacture of the product,” which provides the proper focus and which precludes the

broad application of the principle of solidarity of a seller and a manufacturer.

Accordingly, it is my understanding of redhibition law that the critical question in

determining whether solidary liability exists is whether the plaintiff can prove that the

alleged defect was a result of the manufacturing process.

In the case before us on appeal, Mr. LeGros has not asserted that the defect in

his engine was due to Cummins’ original manufacture of the product, nor has he

claimed that the product was defective when Cummins delivered it to ARC. Mr.

LeGros does not specifically allege when this defect occurred. Nonetheless, testimony

adduced at trial tends to show that ARC performed an extensive overhaul on the

engine at issue and that its representative was unsure whether its allegedly defective

crankshafts were the originals as manufactured by Cummins or if they were purchased

elsewhere as replacements. Consequently, it is my opinion that Cummins and ARC

Services have not been shown to be solidary obligors. I would affirm the trial court’s

decision to grant Cummins’ exception of prescription accordingly.

I respectfully dissent.

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