Alvarez v. Southern Showrooms, Inc.

615 So. 2d 528, 1993 La. App. LEXIS 925, 1993 WL 57688
CourtLouisiana Court of Appeal
DecidedMarch 3, 1993
DocketNo. 92-219
StatusPublished

This text of 615 So. 2d 528 (Alvarez v. Southern Showrooms, Inc.) 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
Alvarez v. Southern Showrooms, Inc., 615 So. 2d 528, 1993 La. App. LEXIS 925, 1993 WL 57688 (La. Ct. App. 1993).

Opinion

STOKER, Judge.

This is an action for damages and civil penalties for violation of the Louisiana Consumer Credit Law, LSA-R.S. 9:3510, et seq., filed by Danilo and Ivonne Alvarez against Southern Showrooms, Inc., T & H Credit, Inc., American General Finance, Inc., and Great Central Fire Insurance Company of Oakdale, Louisiana. The main issue before us is whether the defendants made bad faith violations of the Louisiana Consumer Credit Law with respect to movable property insurance purportedly sold to the plaintiffs in conjunction with their credit purchase of a sofa and loveseat. The trial judge held that the defendants’ violations were not made in bad faith or intentionally. We reverse in part.

FACTS

On February 25, 1989, plaintiffs bought a sofa and loveseat on credit from Southern Showrooms, Inc. The credit sale was financed through T & H Credit, Inc. At the same time, plaintiffs also bought credit life insurance and property insurance for their sofa set. They allege that they were told by the salesperson at Southern Showrooms, Inc. that the property insurance would cover anything that happened to their sofa set. The insurance policies were to be issued by Great Central Fire Insurance Company of Oakdale, Louisiana.

The amount financed was calculated as follows:

Cash Price $ 981.43
Cash Down Payment -181.43
Unpaid Balance of Cash Price 800.00
Credit Life Insurance 25.57
Property Insurance 76.71
Unpaid Balance Amount Financed 902.28
Finance Charge 376.20
Total Payments 1278.48
Deferred Payment Price 1459.91

[529]*529The financing was based on an annual percentage rate of 35.98 percent. It was payable in twenty-four monthly installments of $53.27 each.

Plaintiffs were not provided with copies of either their credit life insurance or their property insurance policy. Later, at the request of their attorney, plaintiffs were sent a copy of their credit life insurance policy on January 16, 1990. They were also given a blank and inaccurate insured’s memorandum of a property insurance policy. Apparently, their property insurance policy had either been lost or was never issued.

In December 1989, plaintiffs’ furniture was damaged by water when their water pipes froze and burst. They contacted Southern Showrooms, Inc. and T & H Credit in an attempt to obtain benefits from their property insurance. They were told that their insurance did not cover water damage. Plaintiffs stopped paying the installments due under the financing agreement as of January 25, 1990. Plaintiffs then retained an attorney who obtained the blank copy of the “insured’s memorandum” of the property insurance policy mentioned above. The memorandum of insurance stated that the policy covered damages resulting from (1) “collision, derailment or overturning of vehicle, collapse of bridges, while being transported by land vehicles”, and (2) “marine perils while on ferries and/or in cars or transfers in connection with land conveyances”. Plaintiffs later discovered that the master policy issued to T & H Credit also covered damages resulting from (1) “fire and lightening” and (2) “windstorm, cyclone, tornado, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles and smoke”. However, these coverages were not set forth in the insured’s memorandum of insurance.

By certified mail, plaintiffs notified all defendants of the apparent violations of the Louisiana Consumer Credit Law with respect to property insurance in a letter dated February 5, 1990. When defendants took no action in regard to the alleged violations, plaintiffs filed this suit against Southern Showrooms, Inc., T & H Credit, Inc., American General Finance, Inc., and Great Central Fire Insurance Company of Oakdale, Louisiana, on May 17, 1990.

Great Central Fire Insurance Company answered with a denial. Plaintiffs settled their claim against Great Central prior to trial and Great Central was dismissed from the suit.

T & H Credit answered with a general denial and asserted a reconventional demand for full payment of the balance due on plaintiff’s promissory note under the acceleration clause of the financing agreement plus 25 percent attorney fees.

Plaintiffs filed an exception of no right of action to T & H Credit’s reconventional demand alleging that T & H Credit had assigned the contract to American General Finance. The trial judge apparently held in favor of T & H Credit on the basis that the contract and promissory note had been reassigned back to T & H Credit.

American General Finance answered with a general denial and filed a cross-, claim for' indemnification against Southern Showrooms and T & H Credit. Prior to trial, T & H Credit and American General Finance stipulated that T & H Credit would be liable for any judgment rendered in favor of plaintiffs and against American General Finance.

TRIAL COURT ACTION

Following a trial on the merits, the trial judge found that defendants were not in bad faith, even though they failed to timely provide plaintiffs with a copy of their insurance and, when they finally did so, it was inaccurate since it did not reflect the full coverage set forth in the master policy. The trial judge found that there was no unconscionable or intentional violation by defendants of the Louisiana Consumer Credit Law. However, he did award plaintiffs $100, under LSA-R.S. 9:3552 A(2)(b), for T & H’s failure to respond timely to plaintiffs’ written complaint as to its “good faith” failure to timely provide, and the inaccuracy of, the written memorandum of insurance. The trial judge also granted T & H Credit’s reconventional demand, [530]*530awarding $691.36 for full payment of the promissory note, plus attorney fees.

Plaintiffs appeal this judgment.

OPINION

Southern Showrooms, Inc.

Initially, we note that the trial court did not err in dismissing plaintiffs’ claims against Southern Showrooms. The Louisiana Consumer Credit Law provides remedies against consumer transaction creditors, not sellers. See LSA-R.S. 9:3510, et seq. Southern Showrooms was only the seller in the transaction and, as such, plaintiffs’ claims against it were properly dismissed.

T & H Credit, Inc.

The appellants list three specifications of error alleging that the trial judge erred in: (1) holding that “collision and marine coverage” in a policy of property insurance on household furnishings bears a “reasonable relationship” to the “risk of loss” — appellants cite LSA-R.S. 9:3543 in this connection; (2) not recognizing that T & H Credit’s failure to describe the coverage purchased and to provide an insurance policy or certificate of insurance violated LSA-R.S. 9:3545 and 9:3547(1) and made it impossible for the Alvarezes to know that the coverage they had been promised was not in effect; and (3) failing to apply LSA-R.S. 9:3551 and 3552 A(l)(a) to award damages and attorney’s fees and nullify the consumer credit agreement in a case of clear violations of LSA-R.S. 9:3543, 3545, and 3547(1).

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Related

Reliable Credit Corp. v. Smith
418 So. 2d 1311 (Supreme Court of Louisiana, 1982)

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Bluebook (online)
615 So. 2d 528, 1993 La. App. LEXIS 925, 1993 WL 57688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alvarez-v-southern-showrooms-inc-lactapp-1993.