West Bros. of DeRidder, La. v. Morgan Roofing Co.

376 So. 2d 345
CourtLouisiana Court of Appeal
DecidedOctober 10, 1979
Docket7108
StatusPublished
Cited by23 cases

This text of 376 So. 2d 345 (West Bros. of DeRidder, La. v. Morgan Roofing 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
West Bros. of DeRidder, La. v. Morgan Roofing Co., 376 So. 2d 345 (La. Ct. App. 1979).

Opinion

376 So.2d 345 (1979)

WEST BROTHERS OF DeRIDDER, LOUISIANA, INC., Plaintiff-Appellant-Appellee,
v.
MORGAN ROOFING COMPANY, INC., Defendant-Appellee-Appellant.

No. 7108.

Court of Appeal of Louisiana, Third Circuit.

October 10, 1979.

Hall, Lestage & Lestage, David R. Lestage, DeRidder, for plaintiff-appellant-appellee.

Collings & Collings, Robert L. Collings, Stockwell, Sievert, Viccellio, Clements & Shaddock, Fred H. Sievert, Jr., Raggio, Cappel, Chozen & Berniard by Thomas L. Raggio, Lake Charles, for defendant-appellee-appellant.

Before CULPEPPER, DOMENGEAUX and STOKER, JJ.

*346 DOMENGEAUX, Judge.

In this suit, plaintiff, West Brothers of DeRidder, Louisiana, Inc., seeks to recover damages for the amount of money it cost to repair its office building, as well as damages for the inconvenience it sustained, when the building's roof began to leak.

The trial judge succinctly set forth the facts giving rise to this controversy in his written reasons, which we quote, as follows:

"West Brothers of DeRidder, Louisiana, Inc. originally filed this suit on July 1, 1974 in Beauregard Parish seeking a money judgment against the defendant, Morgan Roofing Company, Inc. for breach of contract and tort damages. After an unfavorable ruling on an exception for [sic] lack of jurisdiction over the person of defendant, at plaintiff's motion this suit was transferred to this Court. After transfer, defendant filed a peremptory exception of prescription which was subsequently referred to the merits. Defendant then filed an answer and third party demand against the Fidelity and Casualty Company of New York, Matthiessen and Hegeler Zinc Company and Superior Iron Works and Supply Company. No service was ever made on Superior Iron Works and Supply Company. The basis for the demand against the Fidelity and Casualty Company of New York was the alleged issuance of a policy of insurance to defendant insuring it against the claims of plaintiff. Matthiessen and Hegeler Zinc Company was the manufacturer of a sheet metal called Titanaloy. The Fidelity and Casualty Company of New York answered the third party demand denying coverage. Matthiessen and Hegeler timely filed a general denial to the third party demand of defendant, however on September 18, 1978, two days prior to trial on the merits, this party's attorney was permitted to withdraw as counsel of record when the Court was informed that his client was no longer in business and its assets was [sic] under seizure.
On May 9, 1969, plaintiff, West Brothers of DeRidder, Louisiana, Inc. entered into a building contract with a general contractor, Miller and Associates Construction Company, Inc., for the construction of an office building at DeRidder. All plans and specifications were prepared by Wilson, Morris, Crain and Anderson, an architectural firm of Houston, Texas. Cole and Garcia, another architectural firm, supervised construction at the building site. The defendant roofing company was the roofing sub-contractor of Miller. The general contractor experienced financial difficulties after construction commenced and on May 15, 1970 it's contract was cancelled by mutual consent. When the principal contract was cancelled, the roofing work was either complete or substantially complete. According to Mr. Ray Morgan, president of Morgan Roofing Company, Inc. the last roof work was done on May 20, 1970 and on May 21, 1970, he signed a contract directly with plaintiff-owner.
The plans, specifications and contract documents called for a built up tar and gravel roof with flashing of twenty-two (22) gauge paint-grip galvanized iron.
Mr. Edward D. Brandt, executive vice president and secretary of plaintiff, testified that he supervised the construction on behalf of his company. He testified that he had knowledge and experience in the construction field; that he held a BS degree in Civil Engineering and a MS degree in Merchandising. After construction began but prior to any roof work, Mr. Brandt testified he became concerned about the flashing specified by the architects. His objection to the twenty-two (22) gauge galvanized iron was that it required maintenance by painting and had the ability to rust. He liked Titanaloy because of its sheen and compatibility with the marble face of the building. Subsequently, the architects requested bids on stainless steel and Titanaloy flashing. Defendant relayed this request to its sheet metal supplier, Moreno's Inc. Bids were submitted on copper, stainless steel and Titanaloy. Subsequently a change order was issued by the architect changing the flashing from galvanized *347 iron to Titanaloy. It appears that at this point in time, Titanaloy was a new material on the market and neither plaintiff, defendant nor defendant's sheet metal supplier knew much about the material. The Titanaloy flashing was installed as specified and the building was completed and occupied in July or August of 1970.
In March or April of 1973, plaintiff became aware of some roof leaks. In July of 1973, defendant roofing company was called in to make repairs and it was learned that the Titanaloy had deteriorated. Defendant made repairs but as the deterioration of the flashing continued, the leak problem became more apparent. When plaintiff requested the defendant to correct the problems, defendant took the position that it's work had been performed properly and that the leaks were due to a failure of the Titanaloy.
In July of 1975 at plaintiff's insistance, roof repairs were made by Mr. William Dowden who used extruded aluminum to replace the Titanaloy. Mr. Dowden testified he had thirty-one (31) years in the roofing field. When he examined plaintiff's building he found the roof had been installed in a workmenlike manner. He testified that he had used Titanaloy on three (3) roofing jobs, and like plaintiff's roof, all had failed due to the deterioration of the metal. From the testimony of this witness and others it is obvious that Titanaloy was not a suitable material for roof flashing."

The trial judge concluded that the roof was installed properly and in a workmanlike manner. He felt that Morgan Roofing Company merely followed the plans and specifications prepared by plaintiff or plaintiff's architects. He applied La.R.S. 9:2771 and held that, inasmuch as the defect and deterioration of the roof was due to the Titanaloy applied according to plans and specifications given to the roofing contractor by the owner, the contractor was not liable.

With reference to the third party demand made by Morgan Roofing against its insurer, the Judge found that, inasmuch as the roofing contractor had not been found liable on the principal demand, the third party demand was important only in connection with the duty of the insurer to defend. The Judge stated that, by reviewing the pleadings and the policy of insurance issued, it was clear that the policy did not afford coverage. Consequently, the Judge held that the Fidelity & Casualty Company of New York had no duty to defend the third party plaintiff, Morgan Roofing.

From these judgments, both West Brothers and Morgan Roofing appeal. West Brothers appeals contending that it should have received judgment against Morgan Roofing on the principal demand. Morgan Roofing appeals the dismissal of the third party demand against the insurer, Fidelity.

On appeal, West Brothers argues that the trial court erred in applying La. R.S. 9:2771 to the facts of this case. Its argument in this regard is essentially factual, i. e.

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Bluebook (online)
376 So. 2d 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-bros-of-deridder-la-v-morgan-roofing-co-lactapp-1979.