Primm v. State Farm Fire & Cas. Co.

426 So. 2d 356, 1983 La. App. LEXIS 7657
CourtLouisiana Court of Appeal
DecidedJanuary 17, 1983
Docket15126-CA
StatusPublished
Cited by8 cases

This text of 426 So. 2d 356 (Primm v. State Farm Fire & 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
Primm v. State Farm Fire & Cas. Co., 426 So. 2d 356, 1983 La. App. LEXIS 7657 (La. Ct. App. 1983).

Opinion

426 So.2d 356 (1983)

Bobby J. PRIMM, et ux., Plaintiff-Appellant,
v.
STATE FARM FIRE & CASUALTY COMPANY, et al., Defendants-Appellees.

No. 15126-CA.

Court of Appeal of Louisiana, Second Circuit.

January 17, 1983.

Johnston, Thornton, Dawson, Hunter & Feinberg by James J. Thornton, Jr., Shreveport, for plaintiff-appellant.

Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr., Shreveport, for defendant-appellee, State Farm Fire & Cas. Co.

Shuey & Smith by John M. Shuey, Jr., for defendants-appellees, Jimmie Kalil & Betty Kalil Copeland.

*357 Before PRICE, SEXTON and NORRIS, JJ.

SEXTON, Judge.

Plaintiff-appellants bring the instant appeal to challenge the trial court's ruling that they are not entitled to redhibitory damages for structural defects in a recently purchased home damaged by a leaky, subsurface hot water line. Plaintiff-appellants also appeal the trial court's ruling that they are not entitled to recover from their insurer for these same defects. We affirm in part, and reverse in part.

Plaintiff-appellants herein are Mr. and Mrs. Bobby J. Primm who on May 22, 1979, purchased a house from defendant-appellees Jimmie Kalil and his daughter Betty Kalil Copeland, the co-owners of the house. In addition to defendants Jimmie Kalil and Betty Copeland, the Primms sued State Farm Fire & Casualty Company, from whom the Primms purchased a homeowner's policy covering these premises.

The home which is the subject of plaintiffs' redhibitory action is located at 802 Woodmont in the Hyde Park area of Shreveport, Louisiana and was purchased by the Primms at a cost of $45,000. It is an approximately 23 year old, one-level brick home with an adjoining carport. Plaintiffs inspected this house several times before purchasing it, examining it in the company of both the real estate agents that handled the sale and Jimmie Kalil himself.

Plaintiffs moved into the residence approximately eight days after they purchased it on May 22, 1979. Mrs. Primm noticed a hot spot on the floor in front of the kitchen sink sometime during late September or early October and told her husband of this thermal condition. The Primms called a plumber, and on October 5, 1979, W.C. Chapman arrived to find and repair the leak. Mr. Chapman localized the leak using several indicia: the sound of the hissing water beneath the kitchen sink, the hot area on the floor adjacent to the kitchen floor, and an area of damp earth outside the back of the house adjacent to the kitchen sink. Mr. Chapman correctly inferred from these signs that the leak was in the hot water line which was laid beneath the concrete slab of the house.

After tunneling three to four feet beneath the slab, Mr. Chapman discovered the leak. It was located in the solder of the copper pipe T-joint which connected the hot water line to the kitchen sink. He described it as a "spray hole" which would give "a pretty good shower if you had turned it on full." He said it had occurred because the solder used to secure the T-joint had deteriorated.

After Mr. Chapman's repair work, Mr. Primm began to notice structural problems in his house which appeared subsequent to the repair. New cracks[1] appeared in the exterior bricks and mortar surrounding the casing of Mr. Primm's windows. The cracks ranged in width from a quarter to half an inch, and descended in a vertical line all the way to the concrete slab upon which the home was situated. A half-inch wide crack developed in the slab beneath the den, and extended all the way to the carport adjoining the house. The evidence is clear that these structural flaws did not exist when the home was purchased and that these structural flaws were accompanied by a number of related interior cracks which manifested themselves in the fall of 1979. The fracturing of the interior was repaired by a professional hired by Mr. Primm, but the same cracks reappeared subsequent to repair.

Plaintiffs contend the structural flaws which appeared subsequent to the repair of the house were attributable to the deteriorated solder of the copper T-joint. They theorized that the water which escaped through this leak saturated the soils beneath the house, causing these soils to move, expand and erode, destabilizing the slab foundation which rested upon these soils. The destabilization and shifting of *358 the foundation, in turn, impaired the structural integrity of the home, causing the exterior and interior defects which developed subsequent to the sale of the home and the plumbing repair.

The Primms brought this action in quanti minoris to obtain reduction of the purchase price from the defendant-vendors, seeking $17,785.08 to repair the asserted damage.

A vendee acquires an action in redhibition whenever he purchases an item which is flawed by "some vice or defect ... which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice." LSA-C.C. Art. 2520. A vendee may not institute a redhibitory action on the basis of a defect which is discoverable "by simple inspection" or which, though latent, is declared by the seller to the purchaser "before or at the time of the sale." LSA-C.C. Art. 2521; LSA-C.C. Art. 2522. A vendee has the alternative, upon purchasing a defective item, of seeking an absolute avoidance of the sale or merely a reduction of the purchase price. LSA-C.C. Art. 2520; LSA-C.C. Art. 2541. Although the action for a reduction in price is not, in the classic sense, a redhibitory action, it is nevertheless "subject to the same rules and to the same limitations as the redhibitory action." LSA-C.C. Art. 2544. Thus the statutory requirements for redhibitory actions are applicable also with respect to the action in quanti minoris for a reduction of the purchase price. The statutory rule—common to both redhibition and quanti minoris —which is dispositive here, is delineated by LSA-C.C. Art. 2530: "The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him."

The trial court found, and we agree, that the Primms did not prove by a preponderance of the evidence that the fatal leak—which caused the structural difficulties mentioned above—existed at the time of the sale. According to plaintiffs' own witness, plumber W.C. Chapman, who repaired the leak on October 5, 1979, the T-joint, at the time of the repair, "couldn't have been leaking over maybe a week or something like that ...." Mr. Chapman's testimony was somewhat vacillating, and he declared that it would be impossible for anyone to accurately and precisely gauge the exact amount of time that the leak had existed. Nevertheless, Mr. Chapman steadfastly and repeatedly indicated that, in his opinion, the leak's presence did not span the five month period between the sale of the home and the repair of the leak. Mr. Chapman based his opinion upon the amount of water present in the soil beneath the house, the absence of massive washout or erosion, and the fact that water had not visibly drained downward from the elevated knoll on which the house stood to collect on the street below it.

Mr. Chapman's assertion that the leak had not existed in May of 1979, prior to the sale, is, in our view, corroborated by the fact that Mrs. Primm did not detect an unusual degree of heat in the kitchen floor until late summer or early fall. Mr. Chapman testified that the floor was heated by the hot water which escaped from the leaky joint and sprayed directly onto the concrete slab beneath the kitchen floor. In Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
426 So. 2d 356, 1983 La. App. LEXIS 7657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/primm-v-state-farm-fire-cas-co-lactapp-1983.