Labit v. DH Holmes Co., Ltd.

721 So. 2d 933, 1998 WL 716982
CourtLouisiana Court of Appeal
DecidedOctober 14, 1998
Docket98-CA-238
StatusPublished
Cited by3 cases

This text of 721 So. 2d 933 (Labit v. DH Holmes Co., Ltd.) 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
Labit v. DH Holmes Co., Ltd., 721 So. 2d 933, 1998 WL 716982 (La. Ct. App. 1998).

Opinion

721 So.2d 933 (1998)

Gerald LABIT and Ellen Labit
v.
D.H. HOLMES CO., LTD. and Goodyear Tire & State of Louisiana Rubber Company.

No. 98-CA-238.

Court of Appeal of Louisiana, Fifth Circuit.

October 14, 1998.

*934 Anthony S. Taormina, John B. Noble, Metairie, for Plaintiffs/Appellants.

Jonathan C. McCall, Robert B. Landry, Douglas L. Grundmeyer, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for Defendants/Appellees.

Before DUFRESNE and GOTHARD, JJ., and THOMAS C. WICKER, Jr., J. Pro Tem.

GOTHARD, Judge.

Plaintiffs appeal from a jury verdict finding no liability on the part of defendants, and resulting judgment dismissing plaintiffs' suit. For the following reasons, we affirm the decision of the trial court.

FACTS

On November 6, 1989, plaintiff Ellen Labit was driving her husband's 1987 Toyota Supra westbound on Interstate 10 in Jefferson Parish, Louisiana. Her husband, plaintiff, Gerald Labit, was a passenger in the automobile. As the automobile approached the Causeway Boulevard exit, the left rear tire blew out, causing a loss of control of the vehicle. The car ran first into the guard rail and then crossed the highway, where it ran into a light pole. Both Mr. and Mrs. Labit were injured in the accident.

Plaintiffs filed suit against D.H. Holmes and Goodyear Tire and Rubber Company (hereinafter "Goodyear"),[1] alleging that, prior to the accident, the car had been brought to Goodyear for tire replacement; however, Goodyear improperly repaired the tire instead. Defendant contended that it did, in fact, replace the tire and that any improper tire repair was done subsequent to the Labits' visit to Goodyear. After a trial on the merits, the jury returned a verdict in favor of the defendants, and the trial court dismissed plaintiffs' suit. Plaintiffs filed a Motion for Judgment Notwithstanding the Verdict (JNOV) or alternatively, Motion for New Trial, which were denied by the trial court. This appeal followed.

It was undisputed that the cause of the accident was an improper tire repair to the left rear tire. A puncture in the sidewall of the tire had been improperly plugged. Expert testimony at trial established that, prior to the repair, the tire had been driven while flat, causing damage to the interior sides. The tire was not removed from the rim when repaired, and therefore, the damage went undiscovered. Further, it was never appropriate to plug a tire when the damage was to the sidewall.

Mr. Labit testified by video deposition that on October 29, 1988, he went to Goodyear and purchased two tires. At that time, he also purchased a tire protection plan. In March of 1989, he replaced two tires and rims after his daughter damaged the tires. In August of 1989, he had a flat tire on the left rear of the car. He told his daughter, Dorothy Boecher, to bring the car to Goodyear, because of the tire protection plan. He contends that it was during this visit that Goodyear improperly repaired the tire, although the invoice generated at this visit reflects that the tire was replaced, not repaired.

Plaintiff's daughter, Dorothy Boecher, testified that she was with her father when he had the flat tire in August of 1989. After the tire went flat, he had to drive the car for a *935 distance, before he could stop to change the tire. The next day, August 25, 1989, she took the car to Goodyear for a replacement. She arrived right before lunch, accompanied by her young son. Ms. Boecher testified that she waited for the car for almost two hours, and then she complained of the length of time that it was taking. Shortly thereafter, the car was ready. The Goodyear personnel told her that they had replaced the tire. She also testified that she kept looking in the window at the repair bay, but she never saw the car up on the rack.

Brian Dolly, a mechanic, testified that he worked at Goodyear in August of 1989. He testified that it was Goodyear's policy to never plug a tire from the outside, although they might patch a tire from the inside. He further testified that Goodyear would not plug or patch a tire when the damage was to the sidewall, as was the hole that had been plugged in the tire at issue. He further testified that the invoice of the visit of August 1989 showed that the tire was replaced, not repaired. Mr. Dolly did admit that the quickest way to repair a flat was the use of an external plug.

Steven Montalbano was a service manager at the Esplanade Store in 1989. He testified that tires were never plugged at Goodyear during the time he was employed there. Furthermore, a tire would never be patched if the damage was in the sidewall; patching would only be appropriate for some types of damage in the treads. He also testified that the invoice of the August 1989 visit reflected that the tire on the left rear rim was replaced.

Mr. Labit further testified that the car was brought only to Goodyear for tire replacement from March 1989 until the date of the accident in November of 1989, approximately ten weeks later. Mr. Labit also stated that during the time period at issue, he drove the car most of the time; however, his adult children also drove the car on occasion. None of the children told him about having a flat tire and/or having any tire patched. He admitted that he was not always with his children when they drove the car. Mr. and Mrs. Labit, and daughters Lisa Labit and Dorothy Boecher, all testified that they had never had any tire on the car repaired with a plug. His son, Gerry Labit, did not testify at trial.

Allen McLean, an expert on tire repair, testified for the plaintiffs. He testified that he had examined the tire at issue and that the tire had been improperly repaired. It was his opinion that the tire had not been taken off and examined prior to the plug repair. The tire tread wear indicated that the tire was almost new when the blowout occurred.

Harry Baumgardner qualified as an expert in tire technology, including tire failure and repair. He testified that he examined the tire at issue and found a fresh plug repair. The interior of the tire showed a line of wear from driving while flat, called "run flat" damage, which indicated that the tire was probably not dismounted when the plug was inserted. He opined that the tire was not in a repairable condition when it was repaired by the insertion of the plug. He further testified that the tire would fail within a relatively short time after the plug was inserted. He opined that the tire failure probably would have occurred shortly after repair, but failure ten weeks later was not impossible. It would depend on the amount of miles the car had been driven.

Defense witness Charles Gold was qualified as an expert in tire failure and repair. He testified that the tire was improperly repaired. The tire had extensive "run flat" damage, and it was his opinion that the tire had not been removed from the rim and examined before it was plugged. He opined that the tire would not have lasted ten weeks after the repair, if the vehicle was driven regularly.

John Smith, products analyst for Goodyear and an expert in tire repair, testified that he examined the tire after the accident. It had a large plug repair through the upper sidewall, and extensive "run flat" damage both internal and external. The "run flat" damage caused the tire to "blow out". He opined that the tire would have lasted for only a few revolutions after it was plugged, and it could not have been driven for ten weeks after the plug was inserted.

*936 On rebuttal, plaintiff introduced the testimony of Anthony Rabito.

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Cite This Page — Counsel Stack

Bluebook (online)
721 So. 2d 933, 1998 WL 716982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/labit-v-dh-holmes-co-ltd-lactapp-1998.