Achee v. National Tea Co.

686 So. 2d 121, 1996 WL 739286
CourtLouisiana Court of Appeal
DecidedDecember 20, 1996
Docket95 CA 2556
StatusPublished
Cited by9 cases

This text of 686 So. 2d 121 (Achee v. National Tea Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Achee v. National Tea Co., 686 So. 2d 121, 1996 WL 739286 (La. Ct. App. 1996).

Opinion

686 So.2d 121 (1996)

Adrianne ACHEE, d/b/a Eileen's Expressions, Inc.
v.
NATIONAL TEA COMPANY, et al.

No. 95 CA 2556.

Court of Appeal of Louisiana, First Circuit.

December 20, 1996.

*122 Richard L. Seelman, New Orleans, for Defendants-First Appellants National Tea Company, et al.

Thomas W. Mull, Covington, for Plaintiff-Second Appellant Adrianne Achee d/b/a Eileen's Expressions, Inc.

Before WHIPPLE, PITCHER and FITZSIMMONS, JJ.

PITCHER, Judge.

Plaintiff, Adrianne Achee, d/b/a Eileen's Expressions, Inc., and defendants, National Tea Company and its insurers, Great Southwest Fire Insurance Company and Twin City Fire Insurance Company, both appeal the trial court's judgment, awarding plaintiff damages totaling $134,212.68 for the destruction of her business caused by fire. We modify the judgment of the trial court, and, as modified, affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff purchased Eileen's Expressions, Inc. (Eileen's), a Hallmark store, from Eileen King on September 10, 1983. The store was located in the Bogue Falaya Mall in Covington, Louisiana. Ms. King operated the store for approximately ten years before the sale to plaintiff.

On March 11, 1984, a fire erupted in the National Food Store that was located in the Mall. The fire spread throughout the Mall causing extensive fire and water damage to a number of the Mall's tenants, including Eileen's.

On March 8, 1985, plaintiff, along with numerous other tenants of the Mall, filed suit against several defendants, including National Tea Company, the owner of the National Food Store, and its insurers, Twin City Fire Insurance Company and Great Southwest Fire Insurance Company (collectively referred to herein as defendants). The trial court subsequently bifurcated the matter for trial on the issues of liability and damages.

After trial on the issue of liability, the court found that the cause of the fire was defective wiring in an oven installed by National, or under National's direction and control, and that the sole cause of the fire was National's fault. The court further found that the lease provisions in the shopping center lease relied upon by National neither released National from liability to the lessor and its subrogated fire insurer, Vigilant Insurance Company, nor held National harmless from the mall tenants' claims. Judgment was rendered in favor of Vigilant and the mall tenants against defendants for such damages as might be established in the trial on damages. The decision of the trial court was affirmed by this court in Home Insurance Co. of Illinois v. National Tea Co., 577 So.2d 65 (La.App. 1st Cir.1990). The Louisiana Supreme Court, in Home Insurance Co. of Illinois v. National Tea Co., 588 So.2d 361 (La.1991), reversed the judgment in favor of Vigilant against the defendants. In all other respects, the judgment was affirmed.

*123 A trial on the issue of damages was held on March 14, 1995. The trial court held that Eileen's Expressions was destroyed by the fire, and awarded plaintiff the sum of $178,521.39 in damages. The trial court itemized the damages as follows: $131,499.00 for loss of the value of the business, including future lost profits; $44,308.71 for damage to inventory and fixtures[1]; and $2,713.68 for clean-up costs.

Defendants filed a motion for new trial, contending that they were entitled to a reduction in the damages awarded to plaintiff to the extent of her insurance recovery from her insurer, General Accident Insurance of North America (GAI).[2] The trial court, in written reasons for judgment entered on August 14, 1995, found that plaintiff had recovered from GAI, under its insurance policy, the sum of $50,000.00 for loss of business personal property and $33,342.53 for loss of income/profits due to the interruption of the business. The court further found that defendants had subsequently repaid GAI its insurance proceeds paid to plaintiff for damaged inventory and fixtures in settlement of GAI's subrogation suit. The trial court reduced the judgment by $44,308.71, but refused to give credit for an additional sum of $33,342.53, stating that it was not convinced that defendants had established what this payment was for.

Defendants appealed the trial court's judgment, setting forth the following assignments of error for our review:

1. The trial court erred in holding that Eileen's Expressions was destroyed as a result of the fire, rather than interrupted.
2. The trial court erred in awarding damages to Eileen's Expressions that included both the loss of value of the business and future lost profits.
3. The trial court erred in failing to calculate Eileen's Expressions' damages for the period of interruption of its business based on lost net profits.
4. The trial court erred in failing to reduce its damage award for the loss of value of the business, including future lost profits, by the amount of the insurance recovery made by Eileen's on its business insurance policy for loss of income/profits.
Plaintiff has also appealed and urges the following assignments of error:
1. The trial court erred in limiting its award of damages to Adrianne Achee and "Eileen's Expressions, Inc." to "loss of value of business, including loss of future profits" and not including the net operating losses sustained in the three years after the fire in addition to the loss of value of the business.
2. The trial court erred in allowing into evidence certain subrogation documents over counsel for plaintiff's objection when no foundation was laid for the introduction of these documents and no witnesses were called to authenticate, verify and interpret these documents.
3. The trial court erred in rescinding its original award of $44,308.71 for damaged inventory and fixtures on the basis of the erroneously admitted subrogation documents. In ultimately failing to award the plaintiff any amount for damaged inventory and fixtures, the trial court ignored the uncontradicted evidence which proved that the plaintiff suffered property damage beyond either policy limits or subrogated credits.

BUSINESS DESTRUCTION/INTERRUPTION

(Defendants' Assignment of Error Number One)

In its first assignment of error, defendants contend that the trial court erred in holding that plaintiff suffered a destruction of her business. Defendants argue that, because the business reopened, notwithstanding the change of name and the relocation to another city, plaintiff suffered a business *124 interruption. The appropriate measure of damages to be recovered is dependent upon this determination.

Generally, a business interruption is a temporary cessation or impairment of the operations of an established business. After the cessation or impairment, the business returns to some semblance of what it was before the interference of its operations. See Morton M. Goldberg Auction Galleries, Inc. v. Canco, Inc., 94-0734 (La.App. 4th Cir. 1/31/95), 650 So.2d 801; Peacock's Inc. v. Shreveport Alarm Co., 510 So.2d 387 (La. App. 2nd Cir.), writs denied, 513 So.2d 826, 827, 828 (La.1987). However, the case law in Louisiana is silent as to what constitutes a business destruction.

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Cite This Page — Counsel Stack

Bluebook (online)
686 So. 2d 121, 1996 WL 739286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/achee-v-national-tea-co-lactapp-1996.