Malmay v. Western Star Trucks

903 So. 2d 1208, 5 La.App. 3 Cir. 0193, 2005 La. App. LEXIS 1451, 2005 WL 1279207
CourtLouisiana Court of Appeal
DecidedJune 1, 2005
DocketNo. 2005-193
StatusPublished
Cited by1 cases

This text of 903 So. 2d 1208 (Malmay v. Western Star Trucks) 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
Malmay v. Western Star Trucks, 903 So. 2d 1208, 5 La.App. 3 Cir. 0193, 2005 La. App. LEXIS 1451, 2005 WL 1279207 (La. Ct. App. 2005).

Opinion

LAMY, Judge.

A truck purchased for the plaintiffs logging business suffered a number of mechanical problems, eventually leading the plaintiff to file suit in redhibition. The trial court found the presence of redhibi-tory defects, warranting a reduction in the sales price. The trial court awarded $36,158.58 related to the reduced sales price and $25,121.98 in attorney’s fees. The defendant appeals. For the following reasons, we affirm in part, reverse in part and remand with instructions.

Factual and Procedural Background

The plaintiff, Joseph Malmay, purchased a 1996 heavy duty diesel truck from Texar-kana Truck Center, Inc. d/b/a Shreveport Truck Center (hereinafter Shreveport Truck) in September 1996. The previously owned vehicle had approximately 13,000 miles on the odometer at the time of the purchase. Mr. Malmay purchased the truck for $69,570.00 and began using it in his logging business.

Due to repeated breakdown, particularly those related to engine problems and broken pistons, the truck was repeatedly returned to the Shreveport Truck for repairs. These repairs were made under warranty. As outlined in the plaintiffs brief, an outline supported by evidence and testimony, the truck was repaired as follows:

[Replacement of the camshaft at 12,000 miles, the fuel injector pump at 12,000 miles, head group/cylinders at 12,000 miles, the fuel injector lines at 13,000 miles, the block and cylinder covers at 74,000 miles, the fuel injection pump at 106,000 miles, the fuel injector valves and lines at 130,000 miles, the crankshaft and main bearing at 131,000 miles, another fuel injector pump at 131,000 miles, impeller at 141,000 miles, a piston at 174,000 miles, the camshaft at 207,-000, piston and rod rings at 254,000 miles, camshaft at 343,000 miles, fuel injector pump at 350,000 miles, broken piston at 355,000 miles, engine oil leak at 356,000 miles, fuel injector pump at 355,-000 miles, fuel injector pump, various new gaskets seals, ring and cylinder liner at 368,000 miles[.]

According to Mr. Malmay, after the truck again experienced a broken piston following the expiration of the warranty, in February 2001, he “parked” the truck rather than pay for repairs himself.

I j>The plaintiff filed the instant matter in January 2002 alleging redhibitory defects. He sought rescission of the sale, or alternatively, damages related to the alleged defects. Western Star Truck Sales, Inc. (hereinafter Western Star), the truck’s manufacturer, was named as a defendant, as was Shreveport Truck Center, the truck’s seller. In addition to the claim in redhibition, the petition contained a claim against Shreveport Truck for negligent repair. Shreveport Truck filed a third party demand against Caterpillar, Inc., the truck engine’s manufacturer. By joint motion of the plaintiff and Shreveport Truck, the claim for negligent repair was dismissed in February 2004. Furthermore, on February 20, 2004, on joint motion of the plaintiff and Shreveport Truck, the trial court dismissed the entirety of the plaintiffs claim against Shreveport Truck due to what the parties termed “an amicable settlement!.]” The plaintiffs claims against the remaining parties were reserved. Due to Caterpillar’s presence solely through Shreveport [1211]*1211Truck’s third party demand, it too was dismissed at the time of trial.

The matter against Western Star proceeded to a bench trial in August 2004. The trial court found in favor of the plaintiff, finding that the evidence established the presence of redhibitory defects. Damages in the amount of $36,168.58 plus interest and attorney’s fees in the amount of $25,121.98 were awarded.

Western Star appeals, assigning the following as error:

1. The trial court erred in finding that plaintiff had proven that his truck was redhibitorily defective when it left Western Star.
2. The trial court erred to the extent it may have awarded plaintiff nonpecu-niary damages.
3. The trial court erred to the extent it may have awarded plaintiff damages for economic loss.
4. The trial court erred to the extent it awarded plaintiff any reduction of his purchase price of the truck.
| ¡¡5. The trial court erred in awarding plaintiff $36,168.58 as a reduction of his purchase price of the truck.
6. The trial court erred in awarding plaintiff $25,121.98 in attorney’s fees.

The plaintiff also requests attorney’s fees for work performed on appeal.

Discussion

Redhibition

In its first assignment of error, Western Star contends that the trial court erred in finding that the plaintiff established the presence of redhibitory defects at the time the vehicle left the Western Star facility. In particular, it points out that the truck was purchased after having been previously used, that many of the complained of repairs were made under Caterpillar’s warranty, and that the plaintiff used it for more than five years and logged over 450,000 miles after its purchase. Western Star acknowledges testimony indicating that the engine problems encountered were more than would have been expected for this type of engine, but states that other testimony indicated that there could have been other causes of the problem. In its brief to this court, Western Star argues that: “[UJpholding the judgment would tacitly relieve a plaintiff in redhibition from proving anything other than that a mechanical thing gave mechanical problems throughout its life, and it would judicially extend a manufacturer’s written warranty indefinitely.”

With regard to redhibition, La.Civ.Code art. 2520 indicates that:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
|4A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a [1212]*1212reduction of the price.1

Furthermore, “[t]he warranty against red-hibitory defects covers only defects that exist at the time of delivery. The defect shall be presumed to have existed at the time of delivery if it appears within three days from that time.” La.Civ.Code art. 2530.

Although not as extensive, the warranty of La.Civ.Code art. 2520 is applicable to used as well as new things. Karageorge v. Cole, 565 So.2d 502 (La.App. 2 Cir.1990). Used things must operate “reasonably well for a reasonable period of time.” Id. at 508. See also Wagnon v. Hebert, 520 So.2d 1136 (La.App. 3 Cir. 1987).

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Bluebook (online)
903 So. 2d 1208, 5 La.App. 3 Cir. 0193, 2005 La. App. LEXIS 1451, 2005 WL 1279207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malmay-v-western-star-trucks-lactapp-2005.