Thibodeaux v. Audubon Insurance Co.

539 So. 2d 689, 1989 La. App. LEXIS 159, 1989 WL 10651
CourtLouisiana Court of Appeal
DecidedFebruary 8, 1989
DocketNo. 87-1215
StatusPublished

This text of 539 So. 2d 689 (Thibodeaux v. Audubon Insurance 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
Thibodeaux v. Audubon Insurance Co., 539 So. 2d 689, 1989 La. App. LEXIS 159, 1989 WL 10651 (La. Ct. App. 1989).

Opinion

KING, Judge.

The issue presented by this appeal is whether or not the trial court correctly applied the burden of proof.

Joseph Thibodeaux (hereinafter plaintiff) filed suit for damages, penalties and attorney’s fees against his insurer, Audubon Insurance Company (hereinafter Audubon). The trial court rendered judgment in favor of plaintiff and against defendant for damages in the amount of $4,405.00, but did not render judgment for penalties and attorney’s fees. Defendant appeals from this judgment, alleging that the trial court erroneously shifted the burden of proof from plaintiff to the defendant. We reverse.

FACTS

Plaintiff was the insured under a homeowner’s policy issued by defendant. This policy was effective from April 25, 1985 to April 25, 1986, and insured for direct physical loss to the described dwelling, other appurtenant structures, and personal property caused by a peril covered by the policy, unless the loss was excluded. One of the perils covered was damage caused by explosion. However, the exclusion section of the policy specifically stated:

“We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any other sequence to the loss.
# # # ⅛ * ‡
2. Earth Movement, meaning earthquake including land shock waves or tremors before, during or after a volcanic eruption; landslide; mudflow; earth sinking, rising or shifting; unless direct loss by:
* * # * * *
b. explosion
ensues and then we will pay only for the ensuing loss.”

On January 6, 1986, an explosion occurred at Diesi’s Little Capitol Restaurant in Krotz Springs, Louisiana, approximately two miles from plaintiff’s residence. This explosion was, allegedly, of sufficient magnitude to occasion damage to plaintiff’s fireplace by causing it to crack and pull apart from the frame of the house. Plaintiff filed a claim with defendant insurer and on February 4, 1986, defendant’s agent, Fred H. Vanderbrook, inspected the fireplace. Vanderbrook sent a written report to defendant which detailed his observations of the claim. This report made the following conclusions:

[691]*691“1. Separation between this fireplace and house has occurred as a result of downward movement of the outside portion of the fireplace, due primarily to the difference in soil loading between the fireplace and house foundations.”
2. Where attached to the house slab the fireplace has settled less; thus, the back edge of the fireplace foundation has settled more than the front edge. This caused the V shape separation between the fireplace and the house.
3. This separation has occurred over a relatively long period of time, and much of this settlement obviously took place prior to the most recent painting of the exterior of the house.
4. The differential settlement of the fireplace from the house has caused the cracks in the fireplace itself.
5. Quite often, although damage to the house has occurred over a period of time, the owners [sic] attention is not drawn to this damage until they have some reason to make a close inspection, such as feeling vibrations or knowing there was an explosion in the area. This gives the appearance that the cracks have occurred over a relatively short period of time.
It is our opinion that the separation and cracking of this fireplace has occurred as a result of ground settlement over the years and was not related to the recent explosion.”

Another fact supporting Mr. Vander-brook’s report is one to which he testified at his deposition. He stated that he observed house paint on the bricks of the fireplace, between the fireplace and the wall of the house, at the edge of the fireplace where it should have abutted the house. Mrs. Thibodeaux testified that the last time the house was painted was in the summer of 1985 before the explosion. The only way house paint could reach the bricks of the fireplace, between the fireplace and the wall of the house, was if the fireplace was separated from the house before it was painted.

At trial, plaintiff attempted to prove by a preponderance of the evidence that the explosion and not ground settlement caused the cracks in his fireplace. Plaintiff’s wife, Gussie Thibodeaux, testified that she did not notice any damage to the fireplace until after the explosion. She also admitted that she did not have occasion to examine the chimney prior to the explosion. Plaintiff testified that he, like his wife, did not notice any cracks in the fireplace before the explosion. Plaintiff further testified that he used the fireplace shortly after the explosion, but did not notice any cracks in the mortar. Plaintiff admitted that his wife did not tell him of the cracks and separation of the fireplace from the house until two weeks after the explosion.

Three friends and neighbors of the plaintiff testified in this case. The first, Mrs. Fuqua, stated that she visited the Thibo-deaux residence once or twice a week and had never noticed anything wrong with the fireplace until Mrs. Thibodeaux showed her the damage. Mr. Ellis, plaintiff’s next door neighbor, testified that he, too, had not noticed the damage until Mr. Thibodeaux pointed it out to him. The last neighbor, Mr. Bihm, lives one mile north of plaintiff. He stated that he never noticed the damage before the explosion, but only looked at the fireplace after plaintiff informed him of the cracks and separation after the explosion.

The trial court accepted two of plaintiff’s witnesses as experts. The first, Mr. Lacy, was qualified as an expert by virtue of the fact that he had been pouring and finishing cement for thirty years and “must know something about it” after all of that time. Lacy stated that he went to the Thibodeaux residence but did not inspect the chimney and he admitted that he had not noticed any cracks in the slab. Lacy also admitted that he had not levelled the slab after he originally poured it, but had believed the slab to be level. Next, Mr. Wyble was qualified and accepted as an expert brick mason. He testified that he examined the slab and the cracks, but that he had not measured the slab to determine if it was level. He stated that the cracks appeared to be fresh, but that this was the first time [692]*692he had ever been asked to estimate the age of fireplace cracks.

Mr. Vanderbrook, defendant’s expert, was deposed on March 19, 1987. In its written reasons, the trial court stated that it was unimpressed with Mr. Vander-brook’s credentials merely because he had never testified in an explosion case. However, Mr. Vanderbrook did state that he had testified 35 or 40 times as an engineer specializing in structural failure and damage analysis and in regard to structural problems. Defendant presented two witnesses in addition to the written report and deposition of Mr. Vanderbrook. Mr. Catal-on was tendered and accepted as an expert brick mason. He stated that he could not and had not in the past given an opinion as to the causation of the plaintiffs’ damages. When asked to state his opinion on the causation, plaintiff objected, observing that Mr. Catalon, as an expert brick mason, was not an expert on structural engineering. Mr.

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Bluebook (online)
539 So. 2d 689, 1989 La. App. LEXIS 159, 1989 WL 10651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thibodeaux-v-audubon-insurance-co-lactapp-1989.