Louisiana Court Limits Use of Biomechanical Expert Testimony

Anyone who has spent time in the humid South knows why swimming pools are popular. The Hoffmanns, Louisiana residents, tried to purchase an in-ground swimming pool to entertain their grandchildren but found the pool was far from the oasis they imagined. Recently, in Hoffmann v. B & G, Inc., 2016-1001 (La. App. 1 Cir. 2/21/17), 215 So.3d 273, the First Circuit upheld an award in their favor which returned the price of the pool and additional costs related to its installation even though the seller was unaware of the problems with the pool at the time of sale.

The Hoffmanns asserted what is known in Louisiana law as a "redhibition" claim. Redhibition allows purchasers to void a sale if the thing bought has a “vice or defect” that makes it either:

(1) useless, or

(2) so inconvenient that the buyers would not have bought the thing had they known of the problem.

When the Hoffmanns purchased the pool, the seller arranged to have it installed, which was included in the price. The Hoffmanns used the pool for two summers. However, when they uncovered the pool for its third summer of use, they discovered that the pool liner had detached. The Hoffmanns later learned that the manufacturer no longer recommended their specific pool to be installed completely in-ground.

With redhibition, “good faith" sellers (sellers who did not know of the defect) must be given the chance to repair or replace the defective thing. Instead of repairing the pool, the seller of the Hoffmanns’ pool arranged for a new pool to be installed by a third party. Unfortunately, this second "replacement" pool also failed, this time because of an installation issue. After the second pool failed, the Hoffmanns filed suit.

The pool company argued that the Hoffmanns could not support a redhibition claim because the second pool they provided did not have a defect, but instead failed because of faulty installation. It claimed that it discharged its redhibition duties with respect to the first pool when it replaced the pool. The court disagreed and found that the "object" of the sale was a functioning in-ground swimming pool and that, after all of the efforts to repair and/or replace the original pool, the Hoffmanns still did not have a “defect-free useable in-ground swimming pool.”

The Hoffmanns won, making their summer a little more bearable.

Louisiana insurance law recognizes a practical problem faced by many: the need to obtain alternative transportation when the car won’t start. Under La. R.S. 22:1296, any insurance on your personal vehicle must also extend to vehicles that are used as “temporary substitute autos.”

The statute provides that a car’s status as a “temporary substitute auto” depends on how the term is defined in the particular auto policy at issue. However, some rules typically apply to determine whether the auto is a “temporary substitute.” First, the use must be temporary, i.e. limited in duration. Second, the car must be a substitute for the auto insured under the policy and used for the same purpose. Third, policies typically limit coverage to substitute vehicles that the driver does not own.

Some policies also limit coverage by requiring that the substitution be needed for a purpose identified in the policy, such as the breakdown, repair, or destruction of the covered auto.

While the statute generally defers to the definition of “temporary substitute auto” provided in the policy, sometimes courts will overrule the insurer’s definition. For instance, in State Farm Mutual Automobile Insurance Company v. Safeway Insurance Company, 50-098 (La. App. 2 Cir. 9/30/15), 180 So.3d 450, the relevant policy defined a “temporary substitute auto” as a substitute for the owned auto when the owned auto was “being serviced or repaired by a person engaged in the business of selling, repairing, or servicing motor vehicles.” The case involved a motor vehicle accident that occurred while the policy holder operated a borrowed vehicle but before she brought her usual vehicle to a mechanic.

Citing the terms of the policy, the insurer denied coverage on grounds that the policy required the “temporary substitute auto” not only take the place of the driver’s usual vehicle, but also that the driver take the car to a mechanic before coverage would extend to the substitute vehicle. However, the court found this requirement to be against the public policies behind La. R.S. 22:1296 and found coverage under the policy extended to the borrowed vehicle.

The Louisiana Supreme Court recently ruled that a co-defendant who pleads comparative fault as an affirmative defense may appeal a summary judgment that dismisses a co-defendant, even when the plaintiff did not file an appeal. The Court’s decision in Amedee v. Aimbridge Hospitality resolved a circuit split among the Louisiana Courts of Appeal regarding this issue.

The Amedee plaintiff filed a personal injury suit against multiple defendants including the City of New Orleans and Premium Parking of South Texas, LLC. After discovery, the City of New Orleans filed a Motion for Summary Judgment seeking dismissal from the suit. The plaintiff did not oppose the city’s motion. Premium Parking was the only party to file an opposition. The trial court granted the city’s motion and dismissed it from the suit. Premium Parking appealed the court’s judgment.

The Fourth Circuit did not address the merits of Premium Parking’s appeal. Instead, the court dismissed the appeal because it found Premium Parking did not have a legal right to appeal the city’s dismissal when the plaintiff did not appeal the judgment.

The Supreme Court disagreed and reversed the appellate court’s ruling. The Court noted that “to prohibit appellate review of a summary judgment by a co-defendant, even where a plaintiff did not appeal, diminishes the search for truth—the object of a lawsuit—and denies a defendant the ability to fully defend itself.” To reach this conclusion, the Court first asked, who may appeal a judgment?

To answer this question, the Court looked to La. C.C.P. art. 2082 and observed the article makes no restriction regarding what party may appeal a final judgment. Further, the Court noted that the right to an appeal is even extended third parties, not involved in the suit, when that third party is allegedly aggrieved by the judgment. See La. C.C.P. art. 2086.

The Court also considered a defendant’s right to appeal in the context of Louisiana’s pure comparative fault system and summary judgments. Under La. C.C. art. 2323, Louisiana’s comparative fault statute, the fault of all parties is to be quantified. La. C.C.P. art. 966(G), provides that when summary judgment is granted in favor of a party or non-party to a suit, the fault of the dismissed party may not be considered in any subsequent allocation of fault in the matter.

The Court noted that while art. 966(G) precludes an allocation of the fault of a party dismissed under the statute, it does not limit the right of a defendant to appeal the dismissal of a co-defendant. No statute limited a defendant’s right to appeal a summary judgment only to those situations where a plaintiff also filed an appeal. Therefore, a defendant who hopes to keep a co-defendant in the case so that fault still may be allocated to the dismissed party at trial now may appeal the co-defendant’s dismissal, even when the plaintiff fails to do so.

Case Reference: Amedee v. Aimbridge Hosp. LLC, 2021-01906 (La. 10/1/22), --- So.3d ---, 2022 WL 12338929.