Prudential Property & Cas. Ins. Co. v. Stuckey

486 So. 2d 352, 1986 La. App. LEXIS 6658
CourtLouisiana Court of Appeal
DecidedApril 11, 1986
Docket85-338
StatusPublished
Cited by6 cases

This text of 486 So. 2d 352 (Prudential Property & Cas. Ins. Co. v. Stuckey) 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
Prudential Property & Cas. Ins. Co. v. Stuckey, 486 So. 2d 352, 1986 La. App. LEXIS 6658 (La. Ct. App. 1986).

Opinion

486 So.2d 352 (1986)

PRUDENTIAL PROPERTY CASUALTY INSURANCE CO., et al., Plaintiffs-Appellants,
v.
Troy STUCKEY, et al., Defendants-Appellees.

No. 85-338.

Court of Appeal of Louisiana, Third Circuit.

April 11, 1986.

Victor H. Sooter, Alexandria, for plaintiffs-appellants.

Provosty, Sadler & Delaunay, F. Rae Swent, Broussard, Bolton & Halcomb, Drowan G. Vizzier, Alexandria, for defendants-appellees.

*353 Crowell, Owens & Tudor, Richard B. Crowell, Alexandria, for plaintiff-appellee.

Before KNOLL and KING, JJ., and BRUNSON, J. Pro Tem.[*]

KING, Judge.

The issues presented by this appeal are whether or not the trial court erred in finding that an insurance policy did not provide coverage for the plaintiffs' claim and in not awarding plaintiffs damages in tort and redhibition.

Willis C. Jackson, individually, and as administrator for the estate of his minor child, Robert Jackson, his wife, Beverly Jackson, and his major son, James Jackson (all hereinafter referred to as plaintiffs), and the property insurer, Prudential Property and Casualty Insurance Company (hereinafter referred to as Prudential), filed suit for damages caused by a fire against Troy M. Stuckey (hereinafter referred to as Stuckey), and Stuckey's liability insurer, Insurance Company of North America (hereinafter referred to as INA), under the INA policy of insurance issued to Stuckey (hereinafter referred to as the policy). Prudential and plaintiffs alleged that they incurred damages as a result of a fire that partially destroyed the Jackson home. The plaintiffs also sought from Stuckey a reduction in the purchase price of the fire damaged home, by the amount of damages incurred, because of redhibitory defects in the home. From a trial court judgment in favor of INA, plaintiffs appeal. We affirm.

FACTS

In the early part of 1978, Troy M. Stuckey, a general contractor, completed construction of a house in Pineville, Louisiana. Stuckey subsequently sold the house to plaintiffs on March 6, 1978. On January 13, 1982, the plaintiffs were awakened somewhere between 2:00 a.m. and 2:30 a.m. by the smell of smoke which was from a fire that had begun in their home. Despite freezing temperatures and inadequate dress, the plaintiffs made an effort to save their home and belongings until the Holiday Volunteer Fire Department arrived at the scene. Due to the partial destruction of their home, plaintiffs were forced to vacate their home for repairs for approximately two months. At the time of the fire, Prudential had issued a homeowner's policy of insurance to plaintiff, Willis C. Jackson. Under the terms of this policy, Prudential paid plaintiff, Willis C. Jackson, the sum of $33,569.11 for fire damages to the dwelling and became legally and conventionally subrogated for this amount.

On December 7, 1982 Prudential and plaintiffs filed suit against Stuckey, and his insurer, INA; Prudential seeking reimbursement for its subrogation claim for the amount it paid to Willis C. Jackson, and the plaintiffs seeking damages for emotional and physical injury, loss of personal property and sentimental objects, and lost wages, all of which they claimed were incurred due to the fire that was allegedly started due to a defect in their home's brick fireplace. Plaintiffs also asserted a claim against Stuckey for reduction in the purchase price for the sale of the house to them on the ground that the house contained redhibitory defects. Stuckey filed a third party demand against Frank Warren, Jr., the masonry sub-contractor who was responsible for the design, construction, and installation of the fireplace and chimney in plaintiffs' home. Plaintiffs and Prudential thereafter filed a supplemental petition adding Frank Warren, Jr. as an additional defendant in their suit. INA denied coverage under the policy for Stuckey. Stuckey filed a third party demand against INA, seeking indemnity from INA for any sums that he might be held liable to plaintiffs and Prudential, and for attorney's fees and other costs incurred in defending himself.

On March 21, 1984, a Motion for Summary Judgment was filed by INA, on the basis that the policy issued to Stuckey provided no coverage for the losses sustained *354 by plaintiffs, and this motion was denied by the trial court. Prior to trial, Prudential, plaintiffs, and Stuckey jointly obtained a Partial Judgment of Dismissal, dismissing all of the claims of Prudential and plaintiffs against Stuckey, as they had been compromised and settled, and reserving Prudential's and plaintiffs' claims against INA. This left for trial the claims of Prudential, plaintiffs, and Stuckey, against INA.[1]

A bench trial was held and evidence was presented showing that the fire which partially destroyed plaintiffs' home was caused by the negligent design, construction, and installation of the fireplace. In fact, Stuckey testified that fires started in six homes that he built; all six homes having identical fireplaces, and that Frank Warren, Jr. was the masonry contractor on all six of these homes.

Over the objection of Prudential and plaintiffs, the trial judge allowed INA to introduce the policy which it had issued to Stuckey into evidence. After taking the case under advisement the trial judge rendered judgment, which was signed on February 13, 1985, (1) in favor of INA, dismissing Prudential's and plaintiffs' demands at their cost; (2) in favor of Stuckey and against INA for INA's failure to defend Stuckey, in the amount of $1,770.00, together with legal interest thereon from date of judicial demand, as well as all costs associated with Stuckey's third party demand against INA; and (3) taxing all costs on the main demand against Prudential and plaintiffs. INA did not appeal the judgment rendered in Stuckey's favor and against it or answer the appeal. Therefore, this portion of the judgment is now final as to INA. Prudential and plaintiffs appeal from the judgment asserting the following specifications of error:

(1) The trial court erred in failing to address the redhibition issue presented in the pleadings, and at the time of trial;
(2) The trial court erred in admitting into evidence the policy issued by INA to Stuckey;
(3) The trial court erred in improperly relying upon the exclusions of the policy as affirmative defenses, since the policy was not offered to substantiate such defenses;
(4) The trial court erred in finding that the policy did not provide coverage for the damages that Prudential and plaintiffs sustained; and
(5) The trial court erred in not awarding damages in tort and redhibition in favor of plaintiffs and against INA.

Prudential and plaintiffs timely suspensively appealed the judgment but posted no suspensive appeal bond. For this reason the appeal will be treated as a devolutive appeal. Prior to the matter being argued in the Court of Appeal, Prudential dismissed its appeal, with prejudice, reserving all claims of plaintiffs-appellants on this appeal as to the defendant-appellee, INA.

REDHIBITION

Prior to trial the plaintiffs settled all of their claims against Stuckey individually. This included all of plaintiffs' claims for reduction of the purchase price, by the amount of damages they had sustained, because of redhibitory defects in the house, and all claims for damages in tort. Prudential also settled its subrogation claim against Stuckey individually prior to trial. Both Prudential and plaintiffs reserved their rights to proceed against INA, as Stuckey's insurer, at the trial on the merits.

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Cite This Page — Counsel Stack

Bluebook (online)
486 So. 2d 352, 1986 La. App. LEXIS 6658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prudential-property-cas-ins-co-v-stuckey-lactapp-1986.