E.P. Services, Inc. v. Winnebago Industries

146 So. 3d 551, 2012 La.App. 1 Cir. 1678, 2014 WL 3407503, 2014 La. App. LEXIS 26
CourtLouisiana Court of Appeal
DecidedJanuary 8, 2014
DocketNo. 2012 CA 1678
StatusPublished

This text of 146 So. 3d 551 (E.P. Services, Inc. v. Winnebago Industries) 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
E.P. Services, Inc. v. Winnebago Industries, 146 So. 3d 551, 2012 La.App. 1 Cir. 1678, 2014 WL 3407503, 2014 La. App. LEXIS 26 (La. Ct. App. 2014).

Opinions

GUIDRY, J.

Pin this redhibition suit, the dealership and manufacturers of a recreational vehicle (RV) appeal a judgment of the trial court granting the purchaser rescission of the sale.

FACTS AND PROCEDURAL HISTORY

On October 18, 2005, E.P. Services, Inc., (E.P. Services) which was wholly owned by Earl and Gail Percle, purchased a 2006 Itasca Suncruiser, gas-powered RV from Berryland Motors, LLC (Berryland) in Ponchatoula, Louisiana. The chassis of the RV was manufactured by Ford Motor Company (Ford), and the outer body of the RV was manufactured by Winnebago Industries (Winnebago). E.P. Services took possession of the RV on October 25, 2005.

In the week prior to Thanksgiving in 2005, Mr. and Mrs. Percle, along with their daughter, Priscilla, and two grandchildren took a trip to Pigeon Forge, Tennessee in the RV. About ten minutes outside of Chattanooga, Tennessee, the Percies began to hear a loud noise emanating from the rear of the RV. While in Tennessee, Mr. Percle sought to bring the RV to a local dealership, but because of the approaching Thanksgiving holiday, he was advised that if he felt comfortable driving the RV home, he should return home and then contact his local dealership following the holiday.

The Percies drove the RV home to Morgan City, and on the Friday after Thanksgiving, Mr. Percle again sought to have the noise in the RV diagnosed. Arrangements were then made to have the RV towed to Hollingsworth Ford in Baton Rouge. The RV was delivered to Hollingsworth Ford on November 29, 2005, where it was eventually determined that noise generated by the RV was caused by the rear differential. Thereafter, attempts were made to order the part of the rear differential that was not working correctly, but after sending the wrong part twice, Ford eventually sent an entire rear differential assembly to | (¡Hollingsworth. All parts and service were provided under warranty. Once the entire rear differential assembly was received, repair of the RV was commenced by elevating the RV on a wooden platform and “chocks” were wedged beneath the front and back wheels to keep the RV from rolling forward. Unfortunately, the chocks became unanchored and moved, causing the RV to drop and damage the right rear of the body of the RV. Following this accident, the RV was sent to Wooddale Truck Repair Service, Inc. (Wooddale), where the rear differential was replaced with the new assembly sent by Ford.

On April 28, 2006, E.P. Services filed a “Petition for Redhibition, Negligence and for Damages” against Winnebago, Berry-land and Ford. Also in that petition, E.P. Services named Hollingsworth-Richards, LLC, as a defendant, but by a later amended petition properly named River City Ford, Inc., doing business as Holl-ingsworth Richard Ford (Hollingsworth), as the proper defendant.

A trial on the merits of the E.P. Services petition commenced on June 14-15, 2011, then continued to October 12, 2011. Prior to resuming the trial in October, E.P. Services reached a settlement with Hollingsworth, and a judgment dismissing all claims against Hollingsworth was rendered by the trial court on the joint motion of E.P. Services and Hollingsworth. Following the presentation of the last of the evidence, the trial court rendered judgment against Berryland, Ford and Winne[553]*553bago (collectively “defendants”) and rescinded the sale of the RV. The trial court further awarded E.P. Services $351,997.06 in damages for the purchase price of the RV, tax on the purchase, attorney fees, interest on the RV note, and insurance paid on the RV note. The defendants have suspensively appealed the judgment.

ASSIGNMENTS OF ERROR

In bringing this appeal, the defendants assert that the trial court committed the following errors in rendering judgment:

Ji-
The trial court erred in determining that a redhibitory defect existed. The evidence in the record does not reasonably support the finding that there was a lack of sufficient lubrication/oil in the rear differential
II.
Even assuming the existence of a red-hibitory defect in the rear differential, the trial court still erred in rendering judgment against [the defendants] because the entire rear-end assembly was successfully replaced/repaired before this case was filed. In the alternative, the trial court erred in rescinding the sale of the motor home, as opposed to allowing a claim for diminished value. Under Louisiana law, a one-time malfunction of a part, properly repaired, does not rise to the level warranting rescission of the sale.
III.
The trial court erred in relying upon the “additional problem” created by the “intervening dropping of the vehicle by a co-defendant, the Hollingsworth Ford Dealership,” as grounds to rescind the sale. Under Louisiana redhibition law, additional problems that occur after the alleged defective part is replaced by the manufacturer do not permit rescission of the sale.
IV.
The trial court erred in awarding all attorneys’ fees against [the defendants], including those incurred by EPS in pursuing claims against Hollingsworth-Riehards Ford for negligent repair. Attorney’s fees are not recoverable in actions for negligent car repair. And, attorneys’ fees are not recoverable for pursuing claims against a settling defendant. The trial [court] further erred in awarding legal interest on the $163,523 award of attorney’s fees “from April 28, 2006 until paid,” rather than the date of judgment — April 4, 2012.

DISCUSSION

In their first assignment of error, the defendants contend that the trial court erred in finding that the RV contained a redhibitory defect of a lack of sufficient oil or lubrication in the rear differential at the time of sale. We find merit in this assignment.

The original rear differential was disposed of after it was replaced by Wood-dale. The defendants presented the testimony of Paul Chutz, who was accepted by the trial court as an expert witness in automotive mechanics, to establish that there was sufficient oil or lubricant in the rear differential and therefore the rear differential was not defective. Mr. Chutz worked for ¡¿Hollingsworth and was the mechanic who originally diagnosed the problem with the RV as being the rear differential. It was also Mr. Chutz who admittedly was responsible for causing the RV to fall and sustain new damage. Mr. Chutz testified that he believed there was sufficient oil in the rear differential to adequately operate the RV, but he further stated that had he been given the opportunity, it was his intent to more fully examine the parts of the rear differential to [554]*554determine whether the “small lack of oil contributed to the failure” of the rear differential.

E.P., Services offered the testimony of James Guidry, who was accepted by the trial court as an expert in the field of rear differentials in heavy duty truck repairs, mechanics and body work. Based on his many years of experience, Mr. Guidry testified unequivocally that the lack of sufficient oil in the rear differential caused the loud noise the Percies heard while operating the RV. He further explained that there could be a lack of sufficient oil, despite there being no observable odor of burnt oil or metal shavings in the existing oil contained in the differential.

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

Related

Pratt v. Himel Marine, Inc.
823 So. 2d 394 (Louisiana Court of Appeal, 2002)
INS. STORAGE POOL v. Parish Nat. Bank
732 So. 2d 815 (Louisiana Court of Appeal, 1999)
Prince v. Paretti Pontiac Company, Inc.
281 So. 2d 112 (Supreme Court of Louisiana, 1973)
Dumond v. Houma Toyota, Inc.-AMC Jeep, Inc.
470 So. 2d 484 (Louisiana Court of Appeal, 1985)
Aucoin v. Southern Quality Homes, LLC
984 So. 2d 685 (Supreme Court of Louisiana, 2008)
Young v. Ford Motor Co., Inc.
595 So. 2d 1123 (Supreme Court of Louisiana, 1992)
Morrison v. Allstar Dodge, Inc.
792 So. 2d 9 (Louisiana Court of Appeal, 2001)
Rodney v. All Star Ford, Inc.
599 So. 2d 812 (Louisiana Court of Appeal, 1992)
Dickerson v. Begnaud Motors, Inc.
446 So. 2d 536 (Louisiana Court of Appeal, 1984)
Cazaubon v. Cycle Sport, LLC
79 So. 3d 1063 (Louisiana Court of Appeal, 2011)
Cotton v. State Farm Mutual Automobile Insurance Co.
65 So. 3d 213 (Louisiana Court of Appeal, 2011)
O.K. Realty Co. v. John A. Juliani, Inc.
1 La. App. 1 (Louisiana Court of Appeal, 1924)
Nee v. N. O. Public Service, Inc.
123 So. 135 (Louisiana Court of Appeal, 1929)

Cite This Page — Counsel Stack

Bluebook (online)
146 So. 3d 551, 2012 La.App. 1 Cir. 1678, 2014 WL 3407503, 2014 La. App. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ep-services-inc-v-winnebago-industries-lactapp-2014.