Southern Insurance Co. v. Metal Depot

70 So. 3d 922, 2010 La.App. 1 Cir. 1899, 2011 La. App. LEXIS 741, 2011 WL 2975429
CourtLouisiana Court of Appeal
DecidedJune 10, 2011
Docket2010 CA 1899
StatusPublished
Cited by4 cases

This text of 70 So. 3d 922 (Southern Insurance Co. v. Metal Depot) 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
Southern Insurance Co. v. Metal Depot, 70 So. 3d 922, 2010 La.App. 1 Cir. 1899, 2011 La. App. LEXIS 741, 2011 WL 2975429 (La. Ct. App. 2011).

Opinions

PETTIGREW, J.

|2In this alleged product liability action, plaintiff-insurer appeals the trial court’s judgment granting defendant-manufacturer/contractor’s exception raising the objection of peremption and dismissing plaintiffs claim with prejudice. For the reasons that follow, we affirm.

FACTS

On March 1, 2001, PartyEtc.Com, Inc., of Hammond, Louisiana, contracted with Unique Systems of Albany, Louisiana, wherein an agreement was made for Unique Systems to construct a large warehouse in Tangipahoa Parish, Louisiana. Said contract was recorded in Tangipahoa Parish on March 7, 2001. Unique Systems designed and constructed the warehouse, and an Acceptance of Contract and Notice of Termination of Work was filed into the mortgage records on September 5, 2001.

On December 11, 2008, a snow storm hit Tangipahoa Parish, and snow accumulated on the roof of the warehouse constructed by Unique Systems. It was subsequently determined that the additional weight of the snow on the roof of the warehouse caused the main “I” beam to buckle and the roof to collapse.

ACTION OF THE TRIAL COURT

Southern Insurance Company (“Southern”) provided insurance coverage to Par-[924]*924tyEtc.com, Inc., the owner of the warehouse. As a result of the roof collapse, Southern paid to or on behalf of its insured, PartyEtc.com, Inc., a substantial sum of money. Because the roof collapse allegedly resulted from the fabrication of the main “I” beam, Southern, on October 8, 2009, filed suit in accordance with the Louisiana Products Liability Act (“LPLA”)(La. R.S. 9:2800.51, et seq.) seeking subrogation against The Metal Depot, Inc., the firm that fabricated the “I” beam, and its insurer, United Fire and Casualty Company (“United Fire”). Specifically, Southern alleged that “the warehouse Isbuilding was designed, manufactured and assembled by The Metal Depot, Inc. [“Metal Depot”].”1

Metal Depot and United Fire (collectively referred to as “defendants”) responded by filing along with its answer, peremptory exceptions raising objections of no cause of action, no right of action, and peremption. Defendants claimed that pursuant to La. R.S. 9:2772, Southern’s claim was time-barred by effect of law and legally nonexistent. Southern argued in response that the protections of La. R.S. 9:2772 were not applicable to defendants because (1) the failure that caused the roof collapse was a fabrication issue rather than a construction or design issue; and (2) La. R.S. 9:2772 did not protect fabricators of component parts of buildings.

Following a hearing on June 14, 2010, the trial court granted the peremptory exceptions raised by defendants without assigning reasons. From this judgment, Southern has taken a devolutive appeal.

ASSIGNMENT OF ERROR ON APPEAL

Southern contends that the trial court erred in applying the peremptive period of La. R.S. 9:2772 to Metal Depot, which was sued under the LPLA for the fabrication of a defective component part of a building.

STANDARD OF REVIEW

In connection with its appeal in this matter, Southern asks this court to conduct a de novo review of the trial court’s decision to grant the peremptory exceptions raised by defendants. In support of this contention, Southern cites Bunge North America, Inc. v. Board of Commerce & Ind., 07-1746, pp. 10-11 (La.App. 1 Cir. 5/2/08), 991 So.2d 511, 519, for the proposition that in reviewing a trial court’s ruling on a peremptory exception raising an objection of no cause of action, the appellate court should subject the case to de novo preview because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Given the facts of this case, we disagree.

The record reflects that in addition to filing peremptory exceptions objecting to plaintiffs failure to state a cause of action, as well as a right of action, defendants also filed a peremptory exception raising the objection of peremption. “Per-emption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” La. Civ.Code art. 3458.

[925]*925As noted by defendants, peremption is but a form of prescription, which is not subject to interruption or suspension. Flowers, Inc. v. Rausch, 364 So.2d 928, 931 (La.1978). See also, Bunge Corp. v. GATX Corp., 557 So.2d 1376, 1379 (La.1990). It is well-settled that “[w]hen prescription is raised by a peremptory exception, with evidence introduced at a hearing, the [trial] court’s finding of fact on the issue of prescription is subject to the manifest error standard of review.” Lawrence v. Our Lady of the Lake Hosp., 10-0849, p. 10 (La.App. 1 Cir. 10/29/10), 48 So.3d 1281, 1287-88. As defendants further point out, the transcript of the June 14, 2010 hearing reflects that evidence was introduced at this hearing; therefore, the applicable standard of review is manifest error.

A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993). If the trial court or jury findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

DISCUSSION

In connection with its appeal in this matter, Southern urges that as a result of the collapse of the roof of its insured’s warehouse on December 11, 2008, Southern paid for |sthe damages occasioned thereby which Southern now seeks to recover. Southern has alleged in its Petition for Damages that “the warehouse building was designed, manufactured and assembled by ... Metal Depot.” Southern also alleges that Metal Depot is liable to it for “[m]anufacturing, assembling and marketing a product which was unreasonably dangerous.” Southern further cites Zumo v. R.T. Vanderbilt Co., Inc., 527 So.2d 1074, 1077 (La.App. 1 Cir.1988), for the proposition that “[t]he prescriptive period applicable to product liability cases is one year from the date damages are sustained. (Citing La. Civ.Code art. 3492).” Accordingly, Southern claims that the instant suit filed on October 8, 2009, is timely.

By way of response, defendants assert that application of La. R.S. 9:2772 serves to bar Southern’s claim. Louisiana Revised Statute 9:2772 provides, in pertinent part, as follows:

§ 2772. Peremptive period for actions involving deficiencies in surveying, design, supervision, or construction of immovables or improvements thereon
A. No action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action ... to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable ... property ... shall be brought against any person ...

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70 So. 3d 922, 2010 La.App. 1 Cir. 1899, 2011 La. App. LEXIS 741, 2011 WL 2975429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-insurance-co-v-metal-depot-lactapp-2011.