Wright v. Louisiana Power & Light

Decision Date09 March 2007
Docket NumberNo. 2006-C-1181.,2006-C-1181.
Citation951 So.2d 1058
PartiesBetty Jo H. WRIGHT, et al. v. LOUISIANA POWER & LIGHT, et al.
CourtLouisiana Supreme Court

Thomas Moore Hayes, III, Monroe, McGlinchey Stafford, Colvin Gamble Norwood, Jr., New Orleans, for Applicant.

Leger & Mestayer, Michael John Mestayer, Walter J. Leger, Jr., New Orleans, Davenport, Files & Kelly, Michael J. Fontenot, Monroe, for Respondent.

VICTORY, J.

We granted a writ application in this nullity action to determine whether the court of appeal erred in reversing the trial court's rulings granting exceptions of no cause of action and prescription, and motion for summary judgment in favor of defendant. After reviewing the record and applicable law, we find that court erred in reversing the trial court's ruling granting the motion for summary judgment and reinstate the trial court's ruling.

FACTS AND PROCEDURAL HISTORY

On the afternoon of October 16, 1988, Ned Wright drove his 1982 Mercedes-Benz SL open-topped convertible up a guy wire anchoring a light pole in Monroe, Louisiana, causing the car to overturn. Mr. Wright, who was unbelted, was partially ejected and died minutes after the accident. His wife, Betty Jo Wright, who was sitting in the passenger seat, survived. Tests taken at the hospital showed Mr. Wright had a blood alcohol level of 0.19 at the time of the accident. There is no dispute that Mr. Wright was solely at fault in causing the accident.

In November of 1988, Mrs. Wright, through her attorneys, sold the 1982 Mercedes to Steven Taylor for $11,455 in Monroe. Taylor repaired and replaced all of the Mercedes's damaged parts, including the windshield frame, i.e., the A-pillars above the belt line, the left front fender, the headlight assembly, and the left door. All removed parts were sold to Auto Shred and destroyed and no photographs were taken by Taylor of the vehicle in its damaged condition.

On September 12, 1989, plaintiffs1 filed suit against Louisiana Power and Light (LP & L)2, as the owner of the utility pole, and Mercedes-Benz of North America, Inc. (MBNA).3 Plaintiffs alleged that the open-topped convertible was defectively designed because it lacked adequate "rollover protection" that would have prevented Mr. Wright's death. Specifically, plaintiffs faulted the convertible's design because it (1) lacked a rollover bar and (2) lacked stronger A-pillars.4 On October 23, 1989, plaintiffs propounded a request for production of documents to MBNA, requesting the following: "Request for Production No. 20: Any and all tangible evidence retrieved from the accident site involved herein or taken from the vehicle in question following the death of Ned. D. Wright." On December 8, 1989, MBNA responded to the request as follows: "Response to Request for Production No. 20: Defendant, MBNA, has no such evidence." There is no dispute that this response was truthful and correct at the time it was made.

MBNA propounded a Request for Production on plaintiffs, seeking the production of the vehicle or any parts of the vehicle. Plaintiffs responded that "Plaintiff does not own or control the vehicle in question and cannot produce same" and "Plaintiff does not have any component parts of the vehicle in question in her possession."

In February of 1990, Taylor sold the repaired vehicle in Dallas, Texas to the Dallas Auto Mart. On January 1, 1992, Defendants filed a spoliation motion alleging that plaintiffs spoliated evidence by selling the vehicle to a person who would undoubtedly replace all of the Mercedes' damaged parts, particularly the A-pillars which were alleged to be defective. Defendants claimed that the failure of plaintiffs to preserve the evidence which they knew would be involved in litigation prejudiced their ability to prepare a defense and sought the following relief: (1) dismissal of all plaintiffs' claims regarding the vehicle; or (2) refusal to allow any evidence to be presented regarding alleged defects in the vehicle. Plaintiffs responded to the spoliation motion that the vehicle was sold without any attempt to hide or destroy evidence or to gain any unfair advantage, and that defendants had waited nearly two years from the date of the accident to request information concerning the whereabouts of the vehicle and "had they acted more promptly, knowing full well the significance of their delay, they may have had an opportunity to examine the car before repairs were made." The trial court denied the motion.

After the enrollment of new and additional counsel, on July 31, 1998, defendants filed a Motion for Partial Summary Judgment and/or Motion to Partially Dismiss based on Spoliation and/or Motion in Limine to Exclude Claims Concerning the Alleged Defects in the A-pillar. This motion was supplemented on or about November 30, 1998, and defendants filed a reply brief on August 13, 1999. The motion claimed that they were unable to present a defense to the defective A-pillars claim because plaintiffs had allowed the A-pillars to be destroyed. Plaintiffs defended this motion on the same grounds it defended the first spoliation motion. While this motion was pending, defendant's new counsel, Timothy Smith, hired an investigator to find the vehicle in question. The investigator found the vehicle by conducting a Department of Motor Vehicles search and traced it to Texas. On November 23, 1998, defendants filed into the record a "Supplemental Exhibit List," which specifically listed as an exhibit: "1. Registration Certificate from Texas showing that Ned Wright's vehicle was sold to Mr. Hudson."5 On March 1, 1999, Mr. Smith purchased the vehicle on behalf of defendants from its then owner, Meredith Misenhelter, and after examination confirmed that the A-pillars had been removed. Title to the vehicle was put into Mr. Smith's name. Defendants did not inform plaintiffs or the court that they had purchased and had possession of the vehicle. On August 23, 1999, the spoliation motion regarding the A-pillars was argued and denied by the trial court.

On August 13, 1999, defendants filed a Motion to Limit Dr. Limpert's [plaintiffs' expert] Testimony to Design Defect Theories Regarding the Lack of Additional Spot welds on A-pillars and Lack of a Fixed Roll Bar. As part of their argument, defendants argued that Dr. Limpert had admitted that he never saw Mr. Wright's vehicle. The trial court denied defendant's motion in limine, allowing Dr. Limpert to testify as an expert. On March 3, 2000, the Second Circuit denied defendants' writ application, ruling as follows:

The trial court correctly decided that Dr. Limpert's testimony has a sufficiently reliable basis for admissibility under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret, 628 So.2d 1116 (La.1993). Dr. Limpert testified extensively that the structures and forces involved in an auto crash of this type are simple and, given the witness' expertise in engineering, readily capable of explanation. Moreover, Dr. Limpert has access to the blueprints of the A-pillar design in question and to DBAG's [Daimler Benz Aktiengesellschaft] own A-pillar test results.

Trial on the merits occurred from April 3-19, 2000. On April 19, 2000, the trial court granted Directed Verdict in favor of MBNA because it was a "non-manufacturing seller." The jury found in favor of all defendants. Plaintiffs' motion for new trial was denied and in March of 2001 the case was settled regarding a cost award assessed against plaintiffs and plaintiffs' appeal was dismissed with prejudice.

On December 10, 2003, plaintiffs filed a Petition for Damages and for Equitable Remedy Nullifying Judgment and Ordering New Trial Based upon Fraud or Ill Practices and Spoliation of Evidence, naming as defendants the original defendants to the Wright lawsuit, and also the law firms representing those defendants.6 The Petition alleged as follows:

VIII.

The plaintiffs' causes of action in the prior litigation were based upon product liability claims related to alleged defects in design, defects in material or composition, and defects as a result of failure to warn.

IX.

During the course of the litigation, plaintiffs requested that the defendants produce any tangible evidence from the accident site and this request included the vehicle in question.

X.

The defendants initially responded to the requested production of the vehicle in question in an apparent truthful manner, but subsequently their counsel located and purchased the vehicle in his individual name.

XI.

After purchasing the vehicle, defense counsel for defendant did not inform the plaintiffs or the Court that they had physical possession of the vehicle, and filed numerous pleadings suggesting just the opposite.

XII.

While having possession of the vehicle in question, defendants sought to have the plaintiffs' claims dismissed on the basis of spoliation, on the basis of failure to demonstrate defects in design, construction or composition, or in failure to warn, and on the basis that the plaintiffs' experts who had not examined the case were incompetent to testify as experts.

XIII.

Defendants had an affirmative obligation under Article 1428 of the Code of Civil Procedure to disclose the possession and ownership of the vehicle and failed to do so.

XIV.

Defendants had an affirmative obligation to the Court to disclose that their attacks on the plaintiffs' legal position and on the plaintiffs' experts were inaccurate because the defendants had actual possession of the vehicle.

XV.

The failure to disclose of this "crown jewel of product liability litigation" to opposing counsel or to the Court constituted a fraud or ill practice as defined by Article 2004 of the Louisiana Code of Civil Procedure and constituted conscious spoliation of evidence by secreting and later destroying the vehicle at issue.

XVI.

The plaintiffs first learned of the possibility of the above recited fraud or ill practice less than one year from...

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