FRANK TONY MARTIN NO. 21-C-159
VERSUS FIFTH CIRCUIT
PHAM LE BROTHERS, LLC D/B/A SUPER COURT OF APPEAL SAVER DISCOUNT, INDIA IMPORTS, LLC D/B/A INTERNATIONAL WHOLESALE CLUB STATE OF LOUISIANA AND SENECA SPECIALTY INSURANCE COMPANY
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 786-245, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
September 22, 2021
HANS J. LILJEBERG JUDGE
Panel composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and John J. Molaison, Jr.
WRIT APPLICATION GRANTED; JUDGMENT REVERSED ON APPARENT MANUFACTURER ISSUE AND SUMMARY JUDGMENT GRANTED ON SAME ISSUE HJL SMC JJM COUNSEL FOR DEFENDANT/RELATOR, INDIA IMPORTS, LLC D/B/A INTERNATIONAL WHOLESALE CLUB David A. Strauss Robin D. Cassedy
COUNSEL FOR PLAINTIFF/RESPONDENT, FRANK TONY MARTIN Stephen M. Huber Charles M. Thomas Logan E. Schonekas
COUNSEL FOR DEFENDANT/RESPONDENT, PHAM LE BROTHERS, LLC D/B/A SUPER SAVER DISCOUNT Timothy W. Hassinger LILJEBERG, J.
Defendant/Relator, India Imports, LLC d/b/a International Wholesale
Club (“International Wholesale Club”), filed a writ application requesting that this
Court reverse the trial court’s denial of its motion for summary judgment seeking
to dismiss the claims filed against it by plaintiff, Frank Tony Martin. Mr. Martin
alleges that International Wholesale Club is liable to him as the manufacturer/seller
of a disposable lighter that allegedly exploded and caused him to sustain severe
burns to his face and upper body. In its writ application, International Wholesale
Club argues that the trial court erred by finding that genuine issues of material fact
exist as to whether it can be considered an apparent manufacturer of the disposable
lighter under the Louisiana Products Liability Act, La. R.S. 9:2800.51, et. seq.
(“LPLA”). For reasons explained more fully below, we find that pursuant to the
undisputed facts and applicable law, International Wholesale Club did not hold
itself out as a manufacturer of the disposable lighter and therefore, is not liable to
Mr. Martin as an apparent manufacturer. Therefore, we grant International
Wholesale Club’s writ application, reverse the trial court’s ruling denying
summary judgment on the issue of whether International Wholesale Club can be
held liable as an apparent manufacturer and grant International Wholesale Club’s
motion for summary judgment on this issue.1
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Martin alleges that on September 2, 2017, he was lighting a cigar with
an MK lighter he purchased from a convenience store owned by co-defendant,
Pham Le Brothers, LLC d/b/a Super Saver Discount (“Super Saver”). He claims
1 Mr. Martin alleges that International Wholesale Club and the co-defendants are liable to him as manufacturers and non-manufacturing sellers. In its motion for summary judgment, International Wholesale Club also argued that it has no liability as a non-manufacturing seller of the disposable lighter. Though the trial court’s written judgment did not grant any part of the summary judgment motion, International Wholesale Club states in its writ application that its alleged liability as a non-manufacturing seller is not an issue for consideration by this Court. Based on this statement by International Wholesale Club, we limit our analysis to its liability as an apparent manufacturer and do not address its alleged liability as a non-manufacturing seller.
21-C-159 1 the lighter released flammable fluid and unexpectedly exploded, catching his shirt
and upper body on fire. Mr. Martin suffered severe burns to his face and upper
body.
On or about August 1, 2018, Mr. Martin filed a petition for damages against
the convenience store, Super Saver, its insurer, Seneca Specialty Insurance
Company, and relator, International Wholesale Club, the wholesaler that allegedly
sold the MK lighter to Super Saver. Mr. Martin specifically alleges that on or
about March 9, 2017, Super Saver purchased a case containing 1000 MK lighters
from International Wholesale Club and the case contained the defective lighter. In
January 2021, Mr. Martin filed a First Supplemental and Amending Petition for
Damages (“Supplemental Petition”), adding two additional defendants, Ravi’s
Import Warehouse (“Ravi’s”) and Arrow Lighter, Inc. d/b/a MK Lighter, Inc. and
MK Lighter Company (“MK Lighter Company”). Mr. Martin alleges that
International Wholesale Club purchased the MK lighters from Ravi’s located in
Dallas, Texas, and the MK Lighter Company manufactured the MK lighter at
issue. Mr. Martin claims that all of the defendants are liable to him as actual and
apparent manufacturers, as well as non-manufacturing sellers of the MK lighter.
He asserts claims for construction and composition defects, design defects and for
providing inadequate warnings regarding these alleged defects under the LPLA, as
well as under theories of redhibition and negligence.
Mr. Martin does not claim that International Wholesale Club is the actual
manufacturer of the MK lighter. Rather, this writ application concerns the issue of
whether International Wholesale Club is liable to Mr. Martin as an apparent
manufacturer of the MK lighter, that is whether International Wholesale Club
labeled the lighter as its own or otherwise held itself out as a manufacturer of the
MK lighter. The pertinent facts are largely undisputed. In his deposition,
International Wholesale Club’s owner, Hiren Shah, testified that his company
21-C-159 2 operates as a wholesaler that sells products to 800 to 900 convenience store
customers located in Louisiana and Mississippi. Mr. Shah explained that
International Wholesale Club sells most products found in convenience stores, with
the exception of alcohol and gasoline.
In 2017, when the incident at issue occurred, International Wholesale Club
purchased MK lighters from Ravi’s in packs of 50 lighters referred to as a “brick”
of lighters.2 International Wholesale Club resold the lighters to convenience stores
by the brick or by the case.3 Mr. Shah testified that International Wholesale Club
did not make any changes to the bricks of lighters prior to reselling them to its
retail customers. Neither the lighters, nor the packaging for the bricks of lighters,
contain any reference to International Wholesale Club. The metal part at the top of
the lighter contain the initials “MK” etched in the metal. The packaging/display
case from which the lighters are sold includes the description “MK LIGHTER” in
large letters on multiple sides.
Mr. Shah further testified that International Wholesale Club does not solicit
customers and obtains new customers mostly by word of mouth. With respect to
its marketing efforts, Mr. Shah explained that International Wholesale Club has
one salesperson, Himu Vhargushastri. Mr. Vhargushastri testified that he regularly
visited 80 to 100 convenience stores a week to accept orders, which he then
forwarded to International Wholesale Club’s warehouse. Mr. Shah also explained
that International Wholesale Club publishes an extensive catalog of all its products
approximately once a year. International Wholesale Club sends the catalogs to
customers with their deliveries or they are available at International Wholesale
Club’s warehouse.
2 Ravi’s is a wholesaler that sells to other wholesalers, as well as directly to convenience stores. 3 A case contains 20 bricks of lighters for a total of 1,000 lighters.
21-C-159 3 Mr. Shah also explained that International Wholesale Club sells products,
including MK lighters, to its customers from its warehouse located in Metairie.
During his deposition, he described it as a “cash and carry” similar to a
membership club “like a Sam’s Club.” He explained that International Wholesale
Club sold MK lighters from their Metairie location by the brick in the same
packaging they are received without any changes or alterations. Super Saver’s
owner, Bin Pham, testified that he usually placed his orders with International
Wholesale Club through Mr. Vhargushastri and only went to International
Wholesale Club’s warehouse if the convenience store was short on a popular item.
On or about December 10, 2020, over two years after Mr. Martin filed his
original petition, International Wholesale Club filed its motion for summary
judgment seeking the dismissal of all of Mr. Martin’s claims against it. In its
summary judgment motion, International Wholesale Club argued that it is not
liable for any claims under the LPLA because, as a wholesaler that supplies
products to local convenience stores, it is not a manufacturer of the MK lighter. It
argued that it has no knowledge regarding the design and construction of MK
lighters and made no changes to them before selling them to the convenience
stores. It further argued that it does not label the MK lighters as its own or
otherwise hold itself out as the manufacturer of the MK lighter. It asserted that
neither the lighters, nor the packaging in which the lighters are contained and
displayed, have any labels referring to International Wholesale Club. It further
argued that International Wholesale Club never received any complaints from
customers regarding MK lighters and it was not aware of any defects or other
problems with the lighters.
In opposition, Mr. Martin argued that International Wholesale Club is liable
as an apparent manufacturer under the LPLA and is presumed to have known of
the defects in the MK lighter, because it held itself out as a manufacturer of the
21-C-159 4 MK lighter. Mr. Martin bases this allegation on a page in the catalog of products
International Wholesale Club published for its convenience store customers. The
page at issue contains 24 separate boxes with pictures of different lighters and
related products. Under each picture, there is a bar code and number, as well as a
brief description of the product, i.e. “Fujima Torch L940 Angle 20ct,” “Bic Lighter
Plain 50ct,” “Lighter Cheap 50ct.” Each picture also contains the initials “IWC” in
the top right corner of the box, which Mr. Shah confirmed stands for International
Wholesale Club.
Mr. Martin argues that the picture of lighters with the description “Lighter
Cheap 50ct” represented the MK lighters. He notes that Mr. Shah and Mr.
Vhargushastri testified that the only cheap lighters International Wholesale Club
sold at the time of the incident in 2017 were MK lighters. Mr. Martin claims
genuine issues of material fact exist as to whether International Wholesale Club
held itself out as a manufacturer of these lighters because it chose not to include
the manufacturer name “MK” next to the picture of the lighters, as it did with the
Fujita and BIC lighters on the page, and the only identifying information next to
the picture are the initials “IWC.”
In reply, International Wholesale Club argued that a picture on one page in
its catalog is not sufficient to defeat summary judgment when it did not label the
actual lighter with its name and did nothing to give the impression that it
manufactured the lighters. International Wholesale Club argued that MK lighters
and the packaging are only labeled with “MK” and “MK LIGHTER” and did not
refer to International Wholesale Club in any way. International Wholesale Club
argued that the photograph at issue in the catalog depicts a lighter, but it is not
specifically an MK lighter.4 Mr. Shah and Mr. Vhargushastri explained in their
4 The brand or manufacturer of the “cheap lighters” is not legible in the picture provided with the writ application.
21-C-159 5 deposition testimony that International Wholesale Club did not specify a particular
brand for the cheap lighters pictured in the catalog because that category of product
was intended to encompass any lighters below the price point of Bic lighters,
which is a more expensive product. They both testified that at the time of the
incident in 2017, MK lighters were the only brand of cheap lighters International
Wholesale Club was selling and that International Wholesale Club’s customers
requested MK lighters by name. They further explained that International
Wholesale Club used a generic or vague description in the catalog for the cheaper
lighters to allow the possibility of selling different brands of cheap lighters if
necessary to meet customer requests.
International Wholesale Club also noted that all of the lighters pictured on
the catalog page, including those containing the brand names BIC and Fujima,
include the letters “IWC” in the upper right hand corner of each box, making it
unlikely that the letters would create the impression that it manufactured cheap
lighters. International Wholesale Club finally argued that Mr. Martin did not
provide any evidence that he ever saw the catalog or the specific page with the
picture and description at issue.
The trial court held a hearing on International Wholesale Club’s motion for
summary judgment on February 9, 2021. After listening to argument, the trial
court denied the motion and in its oral reasons stated that questions of material fact
existed on the following grounds:
And, as it relates to the India Imports' motion for summary judgment, the Court is likewise denying the motion for summary judgment based on the fact that the Court believes there are questions of material fact as to whether or not under Louisiana Products Liability Law, that International Wholesaler (sic) is potentially considered a manufacturer in light of their own marketing materials that specifically list the lighter not as an MK lighter, but as an IWC, that at least has the IWC insignia next to it. This is marketing material specifically produced by IWC for the sale of these particular lighters and they market it under IWC. That, in this Court's mind again, raises
21-C-159 6 a question of fact as to whether or not IWC is considered the manufacturer of these lighters under Louisiana law.
In its written judgment signed on March 3, 2021, the trial court ruled that
International Wholesale Club’s summary judgment motion was denied due to
questions of material fact as to whether International Wholesale Club “is
considered a manufacturer under the Louisiana Products Liability Act by holding
itself out to be an apparent manufacturer of the MK lighters.”
International Wholesale Club filed a timely writ application with this Court,
and after reviewing its arguments and Mr. Martin’s opposition, this Court issued an
order docketing the matter for additional briefing and argument pursuant to La.
C.C.P. art. 966(H).5 This Court specifically requested that the parties address the
application of the following standard set forth in a recent federal court decision,
Pablovich v. Rooms to Go Louisiana Corp., 20-617, 2021 WL 1401759, p. 4 (E.D.
La. Apr. 14, 2021), to determine whether a seller held itself out as a manufacturer:
‘Whether a holding out has occurred must be judged from the viewpoint of the purchasing public, and in light of circumstances as of the time of purchase.’ Chevron USA, Inc. v. Aker Mar., Inc., 604 F.3d 888, 896 (5th Cir. 2010) (quoting Hebel v. Sherman Equip., 92 Ill. 2d 368, 375, 442 N.E.2d 199, 203 (1982)).
We also requested that the parties address how the decision in Frierson v.
Spanset, Inc., 09-3153, 2010 WL 11537999 (E.D. La. Aug. 17, 2010), discussed
more fully below, may or may not apply to this case.
LAW AND DISCUSSION
A motion for summary judgment is a procedural device used to avoid a full-
scale trial when there is no genuine issue of material fact. Bell v. Parry, 10-369
(La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure is
5 La. C.C.P. art. 966(H) provides:
On review, an appellate court shall not reverse a trial court’s denial of a motion for summary judgment and grant a summary judgment dismissing a case or a party without assigning the case for briefing and permitting the parties an opportunity to request oral argument.
21-C-159 7 favored and is designed to secure the just, speedy, and inexpensive determination
of every action. La. C.C.P. art. 966(A)(2). Under La. C.C.P. art. 966(D)(1), the
initial burden is on the mover to show that no genuine issue of material fact exists.
If the moving party will not bear the burden of proof at trial, the moving party must
only point out that there is an absence of factual support for one or more elements
essential to the adverse party's claim, action, or defense. Id. The nonmoving party
must then produce factual support sufficient to establish the existence of a genuine
issue of material fact or that the mover is not entitled to judgment as a matter of
law. Id. If the nonmoving party fails to do so, summary judgment should be
granted. Babino v. Jefferson Transit, 12-468 (La. App. 5 Cir. 2/21/13), 110 So.3d
1123, 1125.
In ruling on a motion for summary judgment, the judge’s role is not to
evaluate the weight of the evidence or to determine the truth of the matter, but
instead to determine whether there is a genuine issue of triable fact. All doubts
should be resolved in the non-moving party’s favor. Larson v. XYZ Insurance Co.,
16-745 (La. 5/3/17), 226 So.3d 412, 416. A fact is material if it potentially ensures
or precludes recovery, affects a litigant’s ultimate success, or determines the
outcome of the legal dispute. Id. A genuine issue is one as to which reasonable
persons could disagree; if reasonable persons could reach only one conclusion,
there is no need for a trial on that issue and summary judgment is appropriate. Id.
Appellate courts review a judgment granting or denying a motion for
summary judgment de novo. Ruel v. Dalesandro, 18-243 (La. App. 5 Cir. 7/9/19),
276 So.3d 626, 632. Thus, appellate courts ask the same questions the trial court
does in determining whether summary judgment is appropriate: whether there is
any genuine issue of material fact, and whether the mover is entitled to judgment
as a matter of law. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La. App. 5
Cir. 11/29/11), 78 So.3d 849, 852.
21-C-159 8 The LPLA “establishes the exclusive theories of liability for manufacturers
for damage caused by their products.” La. R.S. 9:2800.52. In addition to the entity
that actually manufactures a product, the LPLA defines a manufacturer as one
“who labels a product as his own or who otherwise holds himself out to be the
manufacturer of the product.” La. R.S. 9:2800.53(1). This provision is commonly
referred to as the apparent manufacturer doctrine. This doctrine allows a plaintiff
to hold a seller or distributor liable for injuries caused by a product defect, when
the seller leads a reasonable consumer to believe that it is the manufacturer of the
product. See Meunier v. Home Depot U.S.A., Inc., 19-12141, 2021 WL 795878, p.
3 (E.D. La. May 2, 2021), citing Chevron USA, Inc. v. Aker Maritime, Inc., 604
F.3d 888, 895 (5th Cir. 2010); Frierson, p. 3, 2010 WL 11537999.
In the supplemental briefing requested by this Court, both Mr. Martin and
International Wholesale Club agree that under the apparent manufacturer doctrine
set forth in the LPLA, a court determines whether a seller held itself out as the
manufacturer of the product by considering the viewpoint of the purchasing public
and in light of the circumstances as of the time of purchase as set forth in
Pablovich, supra. After reviewing a broad range of cases decided by Louisiana
state and federal courts addressing the apparent manufacturer doctrine, we agree.
As explained above, Mr. Martin contends that International Wholesale Club
is liable as an apparent manufacturer, not because it placed a label identifying the
company in any way on the product, but because it placed its initials “IWC” on the
top corner of the picture of a brick of lighters identified as “Lighter Cheap 50ct” in
a catalog provided to its customers. Mr. Martin does not claim that he saw the
catalog at issue at Super Saver or at any time prior to the incident. Therefore, the
evidence does not indicate that International Wholesale Club held itself out as a
manufacturer of the MK lighter when analyzing the circumstances at the time Mr.
Martin purchased the MK lighter at Super Saver.
21-C-159 9 In his supplemental memorandum filed with this Court, however, Mr. Martin
expands his arguments and contends that when considering the evidence from the
purchasing public’s view, genuine issues of material fact exist as to the apparent
manufacturer issue because International Wholesale Club sold defective lighters
that 1) included the brand name “MK Lighter” and did not identify the Chinese
manufacturer, Zhuoye Lighter Company, Ltd.; 2) marketed the lighters in a catalog
as their own cheap lighters, and 3) distributed the catalogs out to the public at its
“brick and mortar store” where it sold MK lighters. Mr. Martin further cites to
Chevron, 688 F.3d at 896, for its finding that “[a]s a general rule, it takes very little
under Louisiana law to present a jury issue if a product does not bear the actual
manufacturer’s mark.”
We first address Mr. Martin’s argument that a genuine issue of material fact
exists because the MK lighter does not identify the actual manufacturer, Zhuoye
Lighter Company, Ltd. Before addressing the caselaw Mr. Martin cites to in
support of this argument, we must first consider that Mr. Martin did not introduce
any admissible evidence regarding a manufacturer of the lighter other than MK
Lighter Company. We recognize that in his initial petition, Mr. Martin alleges that
Zhuoye Lighter manufactured that MK lighter in China and that International
Wholesale Club was an affiliate that distributed the MK lighter. When Mr. Martin
filed his Supplemental Petition, however, he removed all references to Zhuoye
Lighter and replaced them with allegations naming MK Lighter Company as the
manufacturer of the MK lighter. Mr. Martin did not allege that International
Wholesale Club is an affiliate of MK Lighter Company, and did not re-allege,
incorporate or adopt any allegations from the original petition into his
21-C-159 10 Supplemental Petition. As a result, the Supplemental Petition is a superseding
petition that completely replaced all allegations contained in the original petition.6
Mr. Martin also argues that the present matter falls within a line of cases,
such as Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La. 1978), where the
product itself does not identify the actual manufacturer. In Chappuis, a Sears
Craftsman hammer chipped as the plaintiff was driving a nail and the metal
fragment lodged in the plaintiff’s eye. The hammer was manufactured by Vaughan
and Bushnell to Sears’ specifications, with Sears’ name and its “Craftsman”
trademark on the handle. Based on these facts, the Supreme Court determined that
Sears held the product out as its own and also recognized that due to the “size,
volume and merchandising practices of Sears,” it was within the class of
professional vendors presumed to know the defects in the products they sell. Id. at
930. Chappuis is completely distinguishable from the present matter because the
MK lighter contains the name of the manufacturer as alleged by Mr. Martin, the
lighter did not include International Wholesale Cub’s name or brand, the company
did not dictate any specifications for the lighter or its labeling, and Mr. Martin
presented no evidence to establish that International Wholesale Club is a
professional vendor of MK lighters.
Even if evidence existed regarding another manufacturer in addition to MK
Lighter Company, this issue is not relevant to the determination of whether
International Wholesale Club held itself out as the manufacturer. Mr. Martin has
not alleged that International Wholesale Club has any relationship or connections
to MK Lighter Company or any other manufacturer. Mr. Martin does not cite to
any law or jurisprudence requiring a distributor or seller to disclose the name of all
6 Louisiana courts have acknowledged that the wording used in an amending petition may have the effect of superseding and replacing the allegations in an original petition. See Gereighty v. Domingue, 17-339 (La. App. 5 Cir. 5/30/18), 249 So.3d 1016, 1023, fn. 4 (finding that allegations in earlier reconventional demand were abandoned when defendant filed a new reconventional demand that replaced all allegations and did not re-allege or incorporate any allegations from prior pleadings); see also Santiago v. Tulane University Hospital and Clinic, 12-1095 (La. App. 4 Cir. 4/24/13), 115 So.3d 675, 685-86.
21-C-159 11 entities involved in manufacturing a product to avoid liability as an apparent
manufacturer. This is simply not required under the LPLA. The inquiry is
whether International Wholesale Club labeled the product as its own or held itself
out as a manufacturer by engaging in actions that would lead a reasonable
consumer to believe it was a manufacturer. Furthermore, Mr. Martin presents no
evidence that International Wholesale Club had any knowledge regarding the name
of a manufacturer other than MK lighter.
Mr. Martin also argues that this Court should treat the failure to list the
manufacturer’s name next to the picture in the catalog as equivalent to the factual
circumstances considered in cases where the actual product does not bear the
manufacturer’s name. Consequently, Mr. Martin urges this Court to apply the
observation stated in Chevron, supra, that “it takes very little under Louisiana law
to present a jury issue if a product does not bear the actual manufacturer’s mark,”
to the present matter. The two Louisiana cases the Chevron court cites to in
support of its observation, however, involve situations where the product itself
contained absolutely no reference to the manufacturer. See Louviere v. Ace
Hardware Corp., 05-259 (La. App. 3 Cir. 11/2/05), 915 So.2d 999, 1002 (genuine
issue of material fact exists on manufacturer issue where price tag includes seller’s
name with no other labels on the product to indicate the identity of the
manufacturer); Cooke v. Fairmont Hotel Co., 90-4759 (E.D. La. 2/5/93), 1993 WL
35146 (shipping labels with wire supplier’s name and brief description of product
precluded summary judgment where the wire was not labeled with the name of the
manufacturer).
Accordingly, this matter does not fall within the line of cases where the
product itself contains no reference to the manufacturer, therefore requiring “very
little to create a jury issue.” Rather, this Court is presented with the opposite
scenario because the MK lighter clearly displays the manufacturer’s initials “MK”
21-C-159 12 at the top, the packaging in which the lighters are sold state “MK LIGHTER” on
several sides, and there is no reference to International Wholesale Club on the
product or the packaging. The pertinent inquiry for this Court, therefore, is
whether in light of these circumstances, the picture in the catalog creates a genuine
issue of material fact as to whether International Wholesale Club held itself out as
a manufacturer?
Not surprisingly, we found few cases where courts held a seller or distributor
liable when the product itself displayed the manufacturer’s name or brand and did
not contain any reference to the distributor or seller. The most prominent case we
identified is, Chevron, supra, which involved defective bolts. The bolts contained
the initials “OF” for the manufacturer, Oriental Fastener Co. Though the
distributor, Lone Star, did not manufacture the defective bolts and the bolts did not
include Lone Star’s name or mark, the court determined that the jury did not err in
holding Lone Star liable as a manufacturer because the evidence indicated Lone
Star was “‘well-known’ as a bolt manufacturer” and did not inform its customer
that the bolts it sold were not its own. 604 F.3d at 898. Furthermore, the shipping
box included Lone Star’s mark and the packing slip accompanying the bolts stated
they were either manufactured or distributed by Lone Star. Id. at 891.
In Media Production Consultants v. Mercedes-Benz of North America, Inc.,
262 So.2d 377, 380-81 (La. 1972), the court held a Mercedes-Benz distributor
liable as a manufacturer because the evidence indicated that the distributor led
American consumers to believe the distributor was the manufacturer. The
Louisiana Supreme Court based this determination on the fact the distributor had
exclusive rights to market the cars in the United States, and for selling, servicing
and establishing franchise dealerships. The distributor also inspected, adjusted and
prepared vehicles for sale prior to sending them to dealerships and included its
name in the owner’s manuals and service policies provided to purchasers of the
21-C-159 13 vehicles. Id. Furthermore, in Rutherford v. Coca–Cola Bottling Co. of Shreveport,
501 So.2d 1082 (La. App. 2nd Cir.1987), a consumer brought an action against the
local Coca-Cola bottler in Shreveport for injuries allegedly suffered after finding a
bug in a canned soft drink. The can’s label contained the names of the national
company, Coca-Cola, USA, and the cannery of the beverage, but not the name of
the local bottler, which was the distributor of all Coca-Cola products in Shreveport.
Nevertheless, the local bottler was held liable for the defect because the evidence
indicated that it held itself out as the manufacturer of Coca-Cola products in the
Shreveport area. Id. at 1085-86.
The common denominator in all three of these cases where the product itself
contained the actual manufacturer’s name or brand, and no reference to the
distributor, is that when viewed from the perspective of the purchasing public, the
courts found liability based on evidence that the distributor was also an actual
manufacturer of a similar product or evidence existed that the general public in the
area perceived the distributor to be a manufacturer of the product. There is no
evidence to support either of these scenarios in the present matter.
Because he did not see the catalog page at issue, Mr. Martin further argues
that this Court should not consider the circumstances as of the time of his purchase
as instructed by the jurisprudence cited above, but rather the Court should consider
all possible point of sale scenarios along the chain from the manufacturer to the
eventual consumer that uses the MK lighter. Based on this alternative analysis, he
contends that a genuine issue of material fact exists because the catalog was
available at International Wholesale Club’s warehouse and it sold the MK lighters
to the general public from this location.
First, after thoroughly reviewing the record presented by the parties, we find
no evidence that International Wholesale Club sold individual lighters to the
general purchasing public from its warehouse in Metairie. Mr. Shah and Mr.
21-C-159 14 Vhargushastri both testified that International Wholesale Club’s customers are
retail convenience stores, not the general public. Mr. Martin contends that the fact
International Wholesale Club operates a “cash and carry” business similar to Sam’s
Club indicates that it sells to the general purchasing public. However, this
assumption is contrary to the deposition testimony establishing that International
Wholesale Club sells lighters by the brick of 50 Mk lighters from the warehouse,
not on an individual basis. Mr. Shah further testified that International Wholesale
Club produced the catalog for its convenience store customers, not the general
purchasing public. Also, though the catalog was available at the warehouse, Mr.
Martin did not present any evidence indicating the catalog was provided to
customers with each sale that occurred at the warehouse. He also failed to provide
any evidence that any convenience store owners or operators believed International
Wholesale Club manufactured lighters.
Second, after reviewing relevant caselaw, Louisiana courts do not generally
consider the factual circumstances at issue when a distributor sells to another
retailer higher up in the chain of sales in order to determine whether the distributor
held itself out as a manufacturer. Instead, as indicated by the numerous cases
outlined above, courts review the circumstances at issue with respect to the person
or entity consuming or using the product at issue. In fact, in Frierson, supra, the
court recognized that under the LPLA, in order to find a distributor held itself out
as a manufacturer, there must be some evidence that a consumer could believe the
distributor was a manufacturer based on information included with the product at
the point of sale. Frierson, p. 3, 2010 WL 11537999.
Frierson is also similar in that the court considered the issue of whether a
marketing brochure created a genuine issue of material fact on the apparent
manufacturer issue. The plaintiffs in Frierson alleged that Mr. Frierson was
injured when he was attempting to secure cargo on his work truck with a winch bar
21-C-159 15 that unexpectedly broke. The winch bar was manufactured by Peak Power
Products7 and distributed by the defendant, Spanset, Inc. to a Truckpro auto parts
store. Truckpro in turn sold the winch bar to J&S Trucking, Mr. Frierson’s
employer. The plaintiffs filed suit against Spanset under the LPLA alleging that
the winch bar was defective and that Spanset was liable as a manufacturer.
The plaintiffs moved for summary judgment on the issue of whether Spanset
held itself out as an apparent manufacturer under the LPLA based on several pieces
of evidence. First, Spanset advertised the winch bar, as well as other products it
sold, in a brochure, and the Spanset name appeared on the page where the winch
bar appeared. Second, plaintiffs alleged that Spanset’s name was on the box in
which Spanset sent the bars to its vendors. Third, some of Spanset’s vendors, who
sold the winch bar, advertised it as a Spanset product. Finally, though the winch
bar did not bear any identifying marks regarding the manufacturer, Peak, or the
distributor, Spanset, Peak did mark the winch bar with an internal control number
“AB 6361,” as requested by Spanset. The bar was also marked with the word
“China.”
The Frierson court first considered whether a brochure which contained
Spanset’s name on the same page as the product established that Spanset was
holding itself out as a manufacturer of the winch bar. The court explained that it
could not locate “any case finding that the content of a distributor’s brochure, like
the one in this case, contributed to a finding that the distributor was a
‘manufacturer’ under the LPLA.” Id. at p. 2. The closest case the Frierson court
located was Bush v. J.C. Penney Co., 99-2692, 2002 WL 1160083, p. 2 (E.D. La.
May 29, 2002), where the court found a genuine issue of material fact existed as to
whether J.C. Penney held itself out as a manufacturer because the instructions that
accompanie[d] the lamp included language stating, “’[c]ongratulations on your
7 The full name of the manufacturer is Peak Power Products Ningbo Peak Industrial Company Limited.
21-C-159 16 new JCPenny [ ] floor lamp!’” The Frierson court emphasized that the “fact that
the instruction was included with the product was key to the court’s finding, and
makes it distinguishable from the instant case.” Id.
The Frierson court went on to find that a review of Louisiana cases applying
the LPLA indicated that in order to conclude that a distributor held itself out as a
manufacturer, the plaintiff must present evidence of information included with the
product at the point of sale that could lead a consumer to believe the distributor
was a manufacturer:
A review of cases applying the LPLA makes it clear that in order to find that a distributor held itself out as a manufacturer, there must be some evidence that a consumer could believe the distributor was a manufacturer based on information included with the product at the point of sale. See Allstate Ins. Co. v. Fred’s, Inc., 44,508 (La. App. 2 Cir. 3/17/10); 33 So.3d 976, 978; Louviere v. Ace Hardware Corp., 05-259, p. 1 (La. App. 3 Cir. 11/2/05); 915 So.2d 999; Peterson v. G.H. Bass and Co., 97-2843, p. 1 (La. App. 4 Cir. 5/20/98); 713 So.2d 806; Bush, 2002 WL 1160083, at *2; see also Matthews v. Wal-Mart Stores, Inc., 97-0449, p. 2 (La. App. 4 Cir. 3/11/98); 708 So.2d 1248 (“Plaintiff testified that nothing on the lamp or the box it came in identified the manufacturer.”). Spanset observes persuasively that if a distributor is deemed a “manufacturer” of a product under the LPLA simply because its logo appears in a brochure advertising that product, then every distributor would be a “manufacturer.” There is no evidence here that Spanset’s brochure was included with the winch bar at the point of sale. The Spanset brochure is therefore not relevant to whether it held itself out as a manufacturer of the winch bar.
Id. at pp. 2-3.
The Frierson court also determined that the boxes used to ship the winch
bars to vendors were not relevant because the plaintiffs did not present evidence
indicating that the winch bars were resold in the same box to consumers and
therefore, available to the consumer at the point of sale. Id. at p. 3. The court
further determined that the vendors’ actions in advertising the winch bar as a
Spanset product were not relevant to determining whether Spanset held itself out as
a manufacturer, unless the vendor’s actions were directed by Spanset. Id. at p. 4.
Finally, the court found that even though Spanset directed Peak to place a control
21-C-159 17 number on the winch bars, the evidence did not support a claim that Spanset was a
manufacturer under the LPLA because the control number did not contain
Spanset’s own name or logo. The court reached the conclusion that the control
number was irrelevant because it did not include information that would lead a
reasonable consumer to believe Spanset was the manufacturer of the winch bar. Id.
We recognize the Spanset case was in a different procedural posture because
the trial court was considering whether to grant summary judgment in favor of the
plaintiffs on the apparent manufacturer issue. However, we find the Spanset
court’s analysis of the information available to the consumer of the product at the
time of sale to be instructive to the circumstances at issue in the present matter.
There is simply no evidence to indicate that that alleged catalog page created for
International Wholesale Club’s convenience store customers was available at the
time consumers, such as Mr. Martin, were purchasing MK lighters and led
reasonable consumers to believe International Wholesale Club was a manufacturer
of MK lighters. We further recognize that all of the lighters pictured on the page
contained the initials IWC next to them.
Based on the foregoing, we find that the catalog page at issue does not create
a genuine issue of material fact as to International Wholesale Club’s status as an
apparent manufacturer. Accordingly, we grant International Wholesale Club’s writ
application, reverse the trial court’s ruling denying summary judgment on the issue
of whether International Wholesale Club can be held liable as an apparent
manufacturer and grant International Wholesale Club’s motion for summary
judgment on this issue.
WRIT APPLICATION GRANTED; JUDGMENT REVERSED ON APPARENT MANUFACTURER ISSUE AND SUMMARY JUDGMENT GRANTED ON SAME ISSUE
21-C-159 18 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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