Dollar Thrifty Auto Group, Inc. & Dollar Systems, Inc. v. BOHN-DC, L.L.C.

23 So. 3d 301, 8 La.App. 5 Cir. 338, 2008 La. App. LEXIS 1273, 2008 WL 4415920
CourtLouisiana Court of Appeal
DecidedSeptember 30, 2008
DocketNo. 08-CA-338
StatusPublished
Cited by4 cases

This text of 23 So. 3d 301 (Dollar Thrifty Auto Group, Inc. & Dollar Systems, Inc. v. BOHN-DC, L.L.C.) 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
Dollar Thrifty Auto Group, Inc. & Dollar Systems, Inc. v. BOHN-DC, L.L.C., 23 So. 3d 301, 8 La.App. 5 Cir. 338, 2008 La. App. LEXIS 1273, 2008 WL 4415920 (La. Ct. App. 2008).

Opinion

WALTER J. ROTHSCHILD, Judge.

|2Plaintiffs, Dollar Thrifty Automotive Group, Inc. and Dollar Systems, Inc. (“Dollar”), appeal a summary judgment rendered in favor of defendant, Bohn-DC, L.L.C. d/b/a Don Bohn Dodge (“Bohn”), dismissing Bohn from this lawsuit. For the reasons which follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In August 2005, Dollar, which is in the business of leasing vehicles to the public, delivered eight of its vehicles to Don Bohn Dodge for repair and/or maintenance services. On August 29, 2005, Hurricane Katrina made landfall. In the aftermath of the hurricane, floodwaters engulfed much of New Orleans and the surrounding areas, including the premises of Don Bohn Dodge. The eight vehicles owned by Dollar were damaged or destroyed by these floodwaters. Bohn asserts that over 300 of its vehicles were damaged or destroyed as well.

|3On August 28, 2006, Dollar filed a Petition for Damages against Bohn, asserting that Bohn was negligent and/or in breach of contract by failing to safeguard Dollar’s vehicles to insure they were not lost or damaged by Hurricane Katrina, failing to exercise ordinary prudence in preserving Dollar’s vehicles, failing to take the same precautions to protect Dollar’s vehicles as it took to preserve its own vehicles, and failing to notify Dollar that it could not or would not protect Dollar’s vehicles that were entrusted to Bohn.

On September 24, 2007, Bohn filed a Motion for Summary Judgment, seeking dismissal of Dollar’s suit against it on the grounds that any flood damage to Dollar’s vehicles was caused by a fortuitous event, Hurricane Katrina, and that Bohn could not be held liable for such damage. Bohn asserted that it acted as diligently and prudently as possible to protect the vehicles in its care, fulfilling any duty it had as an onerous depositary. It further stated that Bohn did not have any reasonable or practical place or “safe haven” to move over 300 vehicles prior to evacuating due to a major hurricane approaching. In support of its Motion for Summary Judgment, Bohn submitted an affidavit from Andy McGoon, a loss control manager working for Group 1 Automotive, Inc., in which he indicated that Bohn had an inventory of 357 new vehicles at Don Bohn Dodge on August 29, 2005, and that 327 of these vehicles were totaled due to floodwaters emanating from Hurricane Katrina. He further stated that the vehicles that were not flooded were assigned to management employees or offsite for accessories installation or other reasons. He further asserted that Bohn did not have the manpower to relocate its own vehicles or the vehicles of others at the time.

Dollar filed an Opposition to Bohn’s Motion for Summary Judgment, in which it claimed that Bohn failed in its legal duty as a depositary to diligently and prudently protect Dollar’s vehicles. It asserted that Bohn cannot rely on the “Act |4of God” defense, because Bohn’s fault preceded the Act of God, i.e. Hurricane Katrina, since Bohn failed to take preventative measures to protect Dollar’s property. Dollar claims that Bohn should have moved its vehicles to a less flood-prone area, particularly since Bohn’s premises had flooded in the past, or that Bohn should have notified Dollar that its premises had previously flooded so that Dollar could retrieve and [303]*303move its own vehicles. Dollar submitted an affidavit from Greg Gebo, the manager of the Dollar Thrifty location near the airport in Jefferson Parish, who stated that he investigated and discovered that Bohn’s premises had previously flooded on May 8, 1995. He further stated that if Dollar had known of the flood-prone nature of Bohn’s premises or its lack of manpower to relocate Dollar’s vehicles, Dollar would have retrieved its vehicles and relocated them to an area that would not flood.

A hearing on Bohn’s Motion for Summary Judgment was held on November 5, 2007, and the trial judge granted the motion. On December 18, 2007, the trial judge signed a written judgment, granting Bohn’s Motion for Summary Judgment and dismissing it from this lawsuit. It is from this judgment that Dollar appeals.

LAW AND DISCUSSION

On appeal, Dollar contends that the trial court erred in granting Bohn’s Motion for Summary Judgment and dismissing Bohn from this lawsuit. We disagree.

It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Nuccio v. Robert, 99-1327, p. 6 (La.App. 5 Cir. 04/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544. A motion for summary judgment is properly granted only if the pleadings, ^depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Summary judgment procedure is favored, and shall be construed, as it was intended, to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Hayne v. Woodridge Condominiums, Inc., 06-923 (La.App. 5 Cir. 4/11/07), 957 So.2d 804, 807; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, 195.

Dollar contends that the trial court erred in failing to properly apply the law of deposit to the circumstances of this case, improperly applying the law governing the affirmative defense of Act of God, and failing to recognize that Bohn’s failure to move Dollar’s vehicles or to notify Dollar of its flood-prone location constituted breach of its duties as an onerous depositary.

LSA-C.C. art. 2926 provides:

A deposit is a contract by which a person, the depositor, delivers a movable thing to another person, the depositary, for safekeeping under the obligation of returning it to the depositor upon demand.

LSA-C.C. art. 2930 provides:

When the deposit is onerous, the depositary is bound to fulfill his obligations with diligence and prudence.
When the deposit is gratuitous, the depositary is bound to fulfill his obligations with the same diligence and prudence in caring for the thing deposited that he uses for his own property.
Whether the deposit is gratuitous or onerous, the depositary is liable for the loss that the depositor sustains as a result of the depositary’s failure to perform such obligations.

In the present case, the parties agree that when Dollar delivered its vehicles to Bohn for maintenance and/or repairs and Bohn accepted the vehicles, an onerous contract of deposit was established. An onerous depositary owes a [304]*304duty to exercise reasonable care and to take precautions against reasonably foreseeable danger to | f,deposited property. Broussard v. Paul Fournet Air Service, Inc., 574 So.2d 541, 542 (La.App. 3 Cir.1991), writ denied, 578 So.2d 934 (La. 1991). When a deposit is not returned as made, a presumption arises of the depositary’s negligence or fault, and the depositary has the burden to show that the loss or damage to the deposit was occasioned other than by his own negligence. National Auto Ins. Co. v. Champ’s New Orleans Collision Center, L.L.C., 06-1144, p. 4 (La.App. 4 Cir. 2/28/07), 954 So.2d 197, 199.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
23 So. 3d 301, 8 La.App. 5 Cir. 338, 2008 La. App. LEXIS 1273, 2008 WL 4415920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dollar-thrifty-auto-group-inc-dollar-systems-inc-v-bohn-dc-llc-lactapp-2008.