Smith v. Hartford Acc. & Indem. Co.

399 So. 2d 1193, 1981 La. App. LEXIS 4066
CourtLouisiana Court of Appeal
DecidedMay 18, 1981
Docket7955
StatusPublished
Cited by21 cases

This text of 399 So. 2d 1193 (Smith v. Hartford Acc. & Indem. 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
Smith v. Hartford Acc. & Indem. Co., 399 So. 2d 1193, 1981 La. App. LEXIS 4066 (La. Ct. App. 1981).

Opinion

399 So.2d 1193 (1981)

Jeanette SMITH, Plaintiff-Appellee,
v.
HARTFORD ACCIDENT & INDEMNITY CO., et al., Defendants-Appellants.

No. 7955.

Court of Appeal of Louisiana, Third Circuit.

May 18, 1981.
Rehearing Denied July 8, 1981.

*1195 Traylor & Kramer, Michael E. Kramer, Winnsboro, for defendant-appellant-appellee.

Bean & Rush, Ernest L. Parker, Mouton & Jeansonne, David S. Cook, Lafayette, for defendants-appellees-appellants.

Pucheu & Pucheu, Jacque B. Pucheu, Jr., Eunice, for plaintiff-appellee.

Before GUIDRY, STOKER and DOUCET, JJ.

DOUCET, Judge.

Plaintiff, Jeanette Smith, brought this suit to recover damages for personal injuries that she sustained on December 9, 1977 when she fell through the floor of a mobile home that she was renting from Tommy Myers. Defendants are Myers' insurer, Hartford Accident & Indemnity Company (Hartford), and the manufacturer of the mobile home, Franklin Homes, Inc. (Franklin).

Plaintiff's petition was filed on October 6, 1978. On January 12, 1979, Hartford answered and filed a third party demand against Franklin, seeking indemnification for any judgment rendered against it. On February 2, 1979, Franklin answered and filed third party demands for indemnification against Myers, Hartford and Albert LeBlanc Mobile Homes, Inc. (LeBlanc), the retailer that sold the mobile home to Myers.[1]

Hartford and LeBlanc filed exceptions of prescription in response to Franklin's third party demands. In addition, LeBlanc filed an exception of improper venue. Hartford's exception was sustained; both of LeBlanc's were overruled.

Following a trial, the district court found that Myers, LeBlanc and Franklin were joint tortfeasors with regard to the injuries suffered by plaintiff. Judgment was rendered (1) in favor of plaintiff and against Hartford and Franklin, in solido, in the sum of $41,495.51,[2] (2) in favor of Hartford on its third party demand against Franklin in the sum of $13,831.84, and (3) in favor of Franklin on its third party demand against LeBlanc in the sum of $13,831.84. From that judgment, Hartford, Franklin and LeBlanc have appealed.

FACTS

In 1976, plaintiff rented a mobile home in Eunice, Louisiana from Tommy Myers. In October, 1977, approximately one year after she had moved into it, plaintiff noticed a crack in the linoleum covering the hall floor. The linoleum immediately adjacent to the crack was discolored, and the floor appeared to be weakened. Plaintiff notified Myers of the problem, and after he had inspected the floor, her daughter placed a suitcase over the discolored area to prevent anyone from walking on it.

Myers contacted LeBlanc and Franklin. LeBlanc informed him that because the mobile home was three years old, it was no longer under warranty, and it disclaimed *1196 responsibility for the damage. Franklin sent out a factory representative, who found that the particle board floor had rotted due to water leakage into the walls. He caulked and sealed the roof and windows to prevent further water leakage. However, Franklin refused to repair the floor, claiming that it had found no manufacturing defects.

Myers took no further action, and on December 9, 1977, plaintiff fell through the floor, injuring her right leg, hip and back. The floor gave way approximately one foot away from the suitcase, which had been placed over the discolored area.

PRESCRIPTION

LeBlanc argues that the trial judge erred in overruling its exception of prescription based on LSA-C.C.P. Art. 1067, which provides:

"An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand."

LeBlanc contends that under this provision, Franklin's third party demand was prescribed, because it was not filed within ninety days of the date of service of the main demand.

LeBlanc's argument overlooks the fact that LSA-C.C.P. Art. 1067 is an exemption rather than a prescriptive statute and applies to incidental demands which otherwise prescribe after filing of the main demand, allowing a 90-day extension for filing reckoning from service of the main or third party demand. Kelly v. Louisiana Stadium & Exposition District, 380 So.2d 669 (La.App. 4th Cir. 1980); Blue Streak Enterprises, Inc. v. Gulf Coast Marine, Inc., 370 So.2d 633 (La.App. 4th Cir. 1979). In this case, Franklin's third party demand had not prescribed at the time of filing because prescription does not begin to run on a claim for indemnification and/or contribution until the party seeking it is, itself, cast in judgment. Blue Streak Enterprises v. Gulf Coast Marine, Inc., supra. Accordingly, we find that the trial judge was correct in overruling LeBlanc's exception of prescription.

For the same reasons, we find that the trial judge erred in sustaining Hartford's exception of prescription, which it filed in behalf of itself and its insured, Myers. Hartford's exception was also founded on LSA-C.C.P. Art. 1067, which as explained above cannot bar a claim for indemnification on which prescription has not begun to run. The judgment sustaining Hartford's exception is therefore reversed and set aside.

LIABILITY OF FRANKLIN

Franklin's witnesses testified at the trial that nearly all mobile homes, including the one that plaintiff rented from Myers, must be periodically "sealed" to prevent wall and roof leakage. If this is not done, water enters the walls and eventually finds its way to the floor, where it causes rapid deterioration. These witnesses also testified that despite the obvious danger that this presents, Franklin did nothing to inform consumers of the need to have their mobile homes periodically sealed.

Under these circumstances, we find that the trial court correctly imposed liability on Franklin as the manufacturer of a product that was "unreasonably dangerous to normal use." Weber v. Fidelity & Casualty Ins. Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971). We cannot agree with Franklin's contention that the mobile home was not defective, because routine maintenance would have prevented the damage to the floor. Franklin was aware of the fact that the dangerous condition causing plaintiff's injuries could arise through normal use of the mobile home. It therefore had a duty to warn buyers of the danger, and its failure to fulfill that duty constituted "fault" within the meaning of LSA-C.C. Art. 2315. Chappuis v. Sears Roebuck & Company, 358 So.2d 926 (La.1978).

*1197 In view of the above, we reject Franklin's argument that the trial court erred in holding it liable for plaintiff's injuries.

LIABILITY OF LeBLANC

The trial judge's conclusion that LeBlanc was also liable for plaintiff's injuries was based on a finding that it either knew or should have known of the need for periodically sealing the mobile home. On appeal, LeBlanc argues that that finding was erroneous. We agree.

The record before us does not contain any direct evidence of such knowledge on the part of LeBlanc. Franklin's witnesses unequivocably denied having informed LeBlanc of the need for sealing the mobile home, and there is no evidence showing that it acquired this information in any other manner. It is well established that a manufacturer is presumed to know the vices or defects of the things that it makes. Weber v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matthews v. State Farm Automobile Insurance
828 So. 2d 620 (Louisiana Court of Appeal, 2002)
Kratzer v. PPM Contractors, Inc.
803 So. 2d 1147 (Louisiana Court of Appeal, 2001)
Huffman v. Goodman
784 So. 2d 718 (Louisiana Court of Appeal, 2001)
Billiot v. State
654 So. 2d 753 (Louisiana Court of Appeal, 1995)
Winchell v. Johnson Properties, Inc.
640 So. 2d 399 (Louisiana Court of Appeal, 1994)
Marcantel v. Karam
601 So. 2d 1 (Louisiana Court of Appeal, 1992)
Edward J. Milligan, Jr., Ltd. v. Keele
558 So. 2d 338 (Louisiana Court of Appeal, 1990)
Gaspard v. Pargas of Eunice, Inc.
527 So. 2d 28 (Louisiana Court of Appeal, 1988)
Womack v. Housing Authority of New Orleans
508 So. 2d 936 (Louisiana Court of Appeal, 1987)
Carpenter v. Lafayette Woodworks, Inc.
504 So. 2d 179 (Louisiana Court of Appeal, 1987)
Gallagher v. Favrot
499 So. 2d 1205 (Louisiana Court of Appeal, 1986)
Great Am. Surplus Lines Ins. Co. v. Bass
486 So. 2d 789 (Louisiana Court of Appeal, 1986)
Wilson v. New Orleans Metairie Hospital Foundation
487 So. 2d 687 (Louisiana Court of Appeal, 1986)
Wood v. Cambridge Mut. Fire Ins. Co.
486 So. 2d 1129 (Louisiana Court of Appeal, 1986)
Thompson v. Cane Garden Apartments
480 So. 2d 373 (Louisiana Court of Appeal, 1985)
Bergeron v. Amerada Hess Corp.
478 So. 2d 1308 (Louisiana Court of Appeal, 1985)
Freeman v. Thomas
472 So. 2d 326 (Louisiana Court of Appeal, 1985)
State Farm Mut. Auto. Ins. Co. v. Smith
448 So. 2d 209 (Louisiana Court of Appeal, 1984)
Barnes v. Housing Authority of New Orleans
423 So. 2d 750 (Louisiana Court of Appeal, 1982)
LaCour v. St. Paul Fire & Marine Insurance
417 So. 2d 1379 (Louisiana Court of Appeal, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
399 So. 2d 1193, 1981 La. App. LEXIS 4066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-hartford-acc-indem-co-lactapp-1981.