David Guidry v. Tarver Motor Co., Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-829

DAVID GUIDRY

VERSUS

TARVER MOTOR CO., INC., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2002-5769
HONORABLE J. DAVID PAINTER, DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Glenn B. Gremillion, and Elizabeth A. Pickett,
Judges.

REVERSED AND REMANDED.

John L. Olivier
Olivier & Brinkhaus
P.O. Drawer E
Sunset, LA 70584
(337) 662-5242
Counsel for Plaintiff/Appellant:
David Guidry

Jere Jay Bice
Bice & Palermo, & Veron, L.L.C.
P. O. Box 2125
Lake Charles, LA 70602-2125
(337) 310-1600
Counsel for Defendant/Appellee:
Tarver Motor Co., Inc.

GREMILLION, Judge.

The plaintiff, David Guidry, appeals the judgment of the trial court

granting summary judgment in favor of the defendant, Tarver Motor Company d/b/a

Lake Charles Toyota. Guidry purchased a used Toyota truck from Tarver Motor, but

experienced problems with it almost immediately after its purchase. After several

futile attempts were made to correct the truck’s problems, he filed suit against Tarver

Motor seeking damages pursuant to his extended warranty. The trial court granted

summary judgment in Tarver Motor’s favor and dismissed Guidry’s claims with

prejudice. For the following reasons, we reverse and remand.

FACTS

On November 17, 1997, Guidry purchased a 1994 Toyota T-100 truck

from Tarver Motor. At the same time, he purchased an extended warranty from Gulf

States Mechanical Breakdown Insurance Company. The warranty was for two years

or 24,000 miles, whichever came first. The truck’s odometer read 67,380 miles at the

time of its purchase. Thus, the extended warranty would extinguish two years later

on November 18, 1999, or when the truck’s odometer read 91,380 miles, whichever

occurred first.

Guidry’s petition outlines the various problems he had with the truck.

Subsequent to purchasing the truck, he drove it to his second home, located in

Kansas. After arriving there, the truck would not start. He towed the truck to the

nearest Toyota dealership, 100 miles away, where it was repaired at the cost of

$1000. When Guidry returned to Louisiana, he returned the truck to Tarver Motor

because its brakes vibrated. While there, he was informed of a recall on the truck’s

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head gasket. These repairs were performed and Guidry left the dealership. Several

miles later, the truck’s engine began making a loud noise, so he returned to Tarver

Motor. It was discovered that there was no oil in the truck, so oil was put in the

engine.

Guidry drove the truck to Kansas a second time. On his return to

Louisiana, he took the truck to Tarver Motor because the air conditioner stopped

working. This repair was effectuated and Guidry was charged for the repairs. Shortly

thereafter, the truck’s engine developed a clicking noise. This was determined to be

a burnt valve seal and was repaired.

Guidry drove the truck to Kansas a third time. After returning to

Louisiana, he took the truck to Tarver Motor because the engine light remained on.

A repair was attempted by replacing the module for the truck’s cruise control, speed

odometer, and switch control. However, the engine light remained on. A further

repair was attempted by Tarver Motor changing the switch control. Although the

engine light initially turned off, it lit up again when Guidry was in Shreveport, en

route to Kansas. When Tarver Motor’s service manager was informed, he told Guidry

to bring the truck to Tarver Motor on his return to Louisiana. Due to a family

emergency, Guidry returned to Louisiana immediately upon his arrival in Kansas.

While driving back, the truck became overheated in Oklahoma, but cooled down after

he added water to the engine. When he reached Louisiana and reported this to Tarver

Motor’s service manager, he was advised not to drive the truck any further. After it

was towed to Tarver Motor, it was determined that a head gasket in the engine had

blown and that the valve seal had burned again. These repairs cost Guidry $2700.

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Guidry filed suit against Tarver Motor and Toyota Motor Sales, U.S.A.,

Inc. on November 25, 2002. In his Petition for Breach of Warranty Contract, he seeks

damages for inconvenience and mental anguish. He also seeks attorney’s fees, court

costs, and special damages, which include reimbursement for repairs made at the

Kansas Toyota dealership and at Tarver Motor, and for the cost of a new engine.

Subsequently, Toyota Motor Sales was voluntarily dismissed from the suit by Guidry.

Tarver Motor then filed a motion for summary judgment arguing that Guidry’s suit

should be dismissed as he has no claim against it under the extended warranty.

Following a hearing on the motion, the trial court granted summary

judgment in favor of Tarver Motor and dismissed Guidry’s claims against it with

prejudice. It held that Tarver Motor was not a party to the extended warranty; thus,

it could not be held liable for a breach of the contract. The trial court further opined

that this was a redhibition action pursuant to La.Civ.Code art. 2520. However, as

Guidry’s petition failed to claim that it was such an action, the trial court granted

summary judgment in favor of Tarver Motor. This appeal by Guidry followed.

ISSUE

Guidry raises five assignments of error on appeal. Simply, he argues that

the trial court erred in finding that Tarver Motor was not a party to the extended

warranty contract purchased by him.

SUMMARY JUDGMENT

The standard of review in summary judgment matters is well settled.

Magnon v. Collins, 98-2822 (La. 7/7/99), 739 So.2d 191. Accordingly, we will now

perform a de novo review of the matter.

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EXTENDED WARRANTY

The document pertaining to the extended warranty policy purchased by

Guidry is entitled, “GULF STATES MECHANICAL BREAKDOWN INSURANCE

COMPANY”; “MECHANICAL BREAKDOWN INSURANCE APPLICATION.”

In addition to containing information pertinent to Guidry’s application, the document

also contains an “Acknowledgment.” Included in this portion of the document is the

following:

I, THE APPLICANT, APPLY TO GULF STATES MECHANICAL
BREAKDOWN INSURANCE COMPANY (GSMIBIC) FOR A
MECHANICAL BREAKDOWN INSURANCE POLICY COVERING
THE VEHICLE DESCRIBED IN THIS APPLICATION. I
UNDERSTAND THAT THE POLICY WILL BE ISSUED IN
ACCORDANCE WITH THE INFORMATION CONTAINED IN THIS
APPLICATION. MY SIGNATURE MEANS THAT I HAVE
REVIEWED AND UNDERSTAND THE TIME AND MILEAGE
LIMITATIONS AS SHOWN ABOVE AND THE REQUIRED
MAINTENANCE LISTED BELOW.

....

THIS IS ONLY AN APPLICATION FOR A MECHANICAL
BREAKDOWN INSURANCE POLICY. RETAIN THIS FORM AS
EVIDENCE OF YOUR APPLICATION. YOUR DEALER WILL
SUBMIT A COPY OF THIS FORM TO THE ADMINISTRATOR, G
S ADMINISTRATORS, INC. (GSA), WHICH WILL NOTIFY YOU
OF ACCEPTANCE BY MAILING YOU YOUR POLICY. GSMBIC
HAS APPOINTED GSA AS ADMINISTRATOR. IF YOU DO NOT
RECEIVE YOUR POLICY FROM THE COMPANY WITHIN 60
DAYS, PLEASE CONTACT THE ADMINISTRATOR. THE
ADDRESS IS: G S ADMINISTRATORS, INC., 7701 WILSHIRE
PLACE DRIVE, HOUSTON, TEXAS 77040, OR CALL TOLL FREE
800-628-0027.

The application is signed by Guidry and by Gary B. Hood, an employee of Tarver

Motor. The line signed by Hood contains the following description, “SIGNATURE

OF DEALER (AGENT).”

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In addition to introducing the signed application, Tarver Motor

introduced a copy of the remaining pages of the application, which would have been

presented to Guidry. A statement on the first page defines who the parties to the

extended warranty contract are:

This policy is between the Policy Holder (“You” or “Your”) specified
in the Policy Information and Gulf States Mechanical Breakdown
Insurance Company (“GSMBIC”). It provides for the repair of
mechanical failures of components specified in this Policy. GSMBIC
may be hereinafter referred to as “Obligor”. GSMBIC has appointed an
Administrator, G S Administrators (“GSA”). GSA has the sole and
exclusive responsibility for this Policy.

Louisiana Civil Code Article 2989 defines “mandate [as] a contract by

which a person, the principal, confers authority on another person, the mandatory, to

transact one or more affairs for the principal.” If the mandate enters into a contract

on behalf of his principal, and discloses such to the contracting party, then his

principal is bound by the contract. The mandate is not bound unless he exceeded the

limits of his authority in executing the contract. La.Civ.Code art. 3016. If the

mandate failed to disclose his status and entered the contract in his own name, then

he becomes personally liable under the contract. La.Civ.Code art. 3017.

In this instance, Tarver Motor acted as an agent for Gulf States

Mechanical Breakdown Insurance Company (Gulf States) in the sale of the extended

warranty contract. Furthermore, its status as mandatory for Gulf States was disclosed

as the application form clearly identifies Gulf States as the provider of the warranty.

As the record is devoid of any genuine issue of any material fact that Tarver Motor

exceeded its authority in contracting with Guidry, Tarver Motor is not liable pursuant

to the contract.

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We further agree with the trial court that Guidry’s action against Tarver

Motor was more properly a redhibition action, rather than a claim under his extended

warranty contract. A review of his petition reveals that he has plead sufficient facts

asserting that the Toyota truck contained a defect which rendered it useless for its

intended purpose; that the defect existed at the time of its purchase, and that Tarver

Motor was given an opportunity to repair the truck, but failed to do so. La.Civ.Code

art. 2520; Vanderbrook v. Coachmen Indus., Inc., 01-809 (La.App. 1 Cir. 5/10/02),

818 So.2d 906.

Thus, we find that Guidry has alleged a claim in redhibition and that

genuine issues of material fact exist with regard to this claim. Accordingly, we

reverse the trial court’s judgment dismissing Guidry’s claims against Tarver Motor

and remand the matter for further proceedings.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and

the matter is remanded for further proceedings on the claim of redhibition. The costs

of this appeal are assessed to the defendant-appellee, Tarver Motor Company d/b/a

Lake Charles Toyota.

REVERSED AND REMANDED.

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