Morgan v. State Farm Fire and Cas. Co.

978 So. 2d 941, 2007 WL 3246738
CourtLouisiana Court of Appeal
DecidedNovember 2, 2007
Docket2007 CA 0334
StatusPublished
Cited by15 cases

This text of 978 So. 2d 941 (Morgan v. State Farm Fire and Cas. Co.) 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
Morgan v. State Farm Fire and Cas. Co., 978 So. 2d 941, 2007 WL 3246738 (La. Ct. App. 2007).

Opinion

978 So.2d 941 (2007)

Julia P. MORGAN
v.
STATE FARM FIRE AND CASUALTY COMPANY, INC., Darnell Browning, Superior Services Industry, Inc. and William Rogers d/b/a Lake Park Laundry.

No. 2007 CA 0334.

Court of Appeal of Louisiana, First Circuit.

November 2, 2007.

*942 Kris A. Perret, Baton Rouge, LA, for Plaintiff/Appellant Julia P. Morgan.

Joseph N. Lotwick, Baton Rouge, LA, for Defendant/Appellee B & G Construction and Restoration, Inc.

Daniel A. Reed, Baton Rouge, LA, for Defendant/Appellee Republic Vanguard Insurance Company.

Before WHIPPLE, GUIDRY, and HUGHES, JJ.

GUIDRY, J.

A homeowner appeals a judgment dismissing her claims against a contractor she hired to repair her home after a fire. Having thoroughly reviewed the evidence in the record before us, and finding no error in the determinations of the trial court, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 27, 1999, a fire that emanated from the fireplace damaged the home of Julia P. Morgan. Ms. Morgan was at home at the time of the fire. She maintained a policy of homeowner's insurance covering her home with State Farm Fire and Casualty Company (State Farm), and immediately called her agent to report the occurrence. The agent arrived at Ms. Morgan's home on the night of the fire and brought with him Barry Jenkins, the owner of B & G Construction and Restoration (B & G). Thereafter, Ms. Morgan contracted with B & G to perform the repair work on her home. The company commenced the work approximately four weeks after the date of the fire and completed the work in October 1999.

Apparently dissatisfied with how her claim was processed, on the one year anniversary of the fire, Ms. Morgan filed suit against State Farm and her agent, Darnell Browning, alleging that based on the failure to properly adjust her claim, she was *943 not fully compensated for all the losses she suffered and that her home remained in a state of disrepair. Also in that petition, Ms. Morgan made claims against the companies that cleaned her home and clothes following the fire. She later amended her petition to name additional companies and individuals that performed work on her home relative to the fire, which claims and defendants are not at issue in the matter before us.

However, critical to this appeal is Ms. Morgan's first supplemental and amending petition in which she named B & G as a defendant based on its alleged failure to make the repairs to her home in a "timely, professional and workmanlike manner." This petition was filed on October 13, 2000, and B & G answered the petition denying Ms. Morgan's claims. Ms. Morgan later filed a second supplemental and amending petition naming Republic Vanguard Insurance Company as a defendant as the insurer of B & G.

After extensive pretrial discovery, motions, and interlocutory rulings, the trial court finally heard the claims asserted against B & G on June 14, 2006. Ms. Morgan testified at the trial and presented the testimony of a witness accepted by the trial court as an expert in estimating and construction. Mr. Jenkins testified on behalf of B & G. After considering the testimony and other evidence presented, the trial court took the matter under advisement and later rendered judgment in favor of B & G, finding Ms. Morgan failed to present sufficient evidence to prove that B & G failed to repair her home in a workmanlike manner. It is from that judgment, signed August 22, 2006, that Ms. Morgan appeals, asserting that the trial court erred in not accepting as true the uncontradicted testimony offered by her expert witness and in reaching conclusions that she maintains are not supported by the record.[1]

DISCUSSION

The primary evidence relied on by Ms. Morgan in presenting her claim is the testimony of Winston Wood, accepted by the; trial court as an expert in estimating and construction. It is Ms. Morgan's contention that Mr. Wood's testimony was uncontradicted and clearly established her right to recover the damages claimed. On review, we find no support for these arguments.

At trial, Mr. Wood testified that he inspected Ms. Morgan's home in 2003, nearly four years after the fire and repair work in 1999. Based on his inspection, Mr. Wood documented the following as problems he observed regarding the repair of the home: paint sloughing off surfaces throughout the house, including moldings; stained bathroom tub that should have been replaced or resurfaced and sealed; mold accumulating in a closet as a result of overflow from the air conditioning system; a hole in the wall in the hallway caused by the closet rod on the communicating wall of the closet with mold in it; nails not properly securing decking of the roof to the rafters; hole around a vent near the attic bigger *944 than the vent, allowing hot air from the attic to reach the cold air of the interior of the house and possibly causing mold to develop; failure to spray joists, rafters and decking in the attic with a sealant to kill any odor from the fire and smoke that absorbed in the wood; air conditioner unit in attic not properly supported or anchored; tile in kitchen that was beginning to crack that needed to be replaced; a crack in kitchen countertop; bifold doors in kitchen that needed to be replaced; damage starting to show to wooden floors, either from improper installation or moisture from the overflowing air conditioning unit; and failure to use the same quality and type of wood to make repairs to the roof and in the attic.

Based on the defects observed, Mr. Wood opined that the work performed on Ms. Morgan's house was either unsupervised or substandard. However, on cross examination, Mr. Wood admitted that he did not know what the condition of the house was when Ms. Morgan moved back into it after B & G had completed its work in October 1999. As for the damage noted in the wall in the hallway, Mr. Wood stated:

Well, I'm not quite sure the mechanism, how the hall wall got damaged from the other side, unless the bracket that was supporting the shelf and the rod itself when it fell just punched a hole through it, because this sheetrock wall was on the opposite side of the stud from where the problem was created.

As for the spraying of the joists and rafters in the attic with a sealant, he clarified his testimony regarding whether a sealant had been sprayed on those surfaces by admitting "[w]ell, it didn't appear to be." Mr. Wood also admitted not knowing when the crack in the kitchen floor had occurred. In explaining his testimony regarding the quality of the wood used to repair the fire damage to the roof, Mr. Wood stated:

If I was going to replace the roof with like and quality, I'd — unless someone asked me to raise it for some reason, I would put it back like it was, and if they wanted tongue and groove, I'd use tongue and groove. If they didn't, I'd use plywood and give them a credit that they could use on something else or they wouldn't pay me that money.

Following Mr. Wood's testimony, Mr. Jenkins, the owner of B & G, was called to the stand to testify, and contrary to Ms. Morgan's assertion on appeal, his testimony, as well as several exhibits introduced in conjunction with his testimony, did contradict the opinion and statements of Mr. Wood in several respects.

First, regarding the peeling paint observed on several surfaces in the house, Mr.

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Bluebook (online)
978 So. 2d 941, 2007 WL 3246738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-state-farm-fire-and-cas-co-lactapp-2007.