Delta Refrigeration Co., Inc. v. Upjohn Co.

• Decision Date: 25 May 1977
• Docket Number: Civ. A. No. 750136.
• Citation: 432 F. Supp. 124
• Parties: DELTA REFRIGERATION COMPANY, INC. v. The UPJOHN COMPANY.
• Court: U.S. District Court — Western District of Louisiana

432 F. Supp. 124

DELTA REFRIGERATION COMPANY, INC. v. The UPJOHN COMPANY.

Civ. A. No. 750136.

United States District Court, W. D. Louisiana, Monroe Division.

May 25, 1977.

Bobby L. Culpepper, Holloway, Baker, Culpepper & Brunson, Jonesboro, La., for plaintiff.

Ronald Lee Davis, Jr., Theus, Grisham, Davis & Leigh, Monroe, La., for defendant.

DAWKINS, Senior Judge.

RULING ON THE MERITS

In this diversity action, Delta Refrigeration Company (Delta) claims monetary damages from The Upjohn Company (Upjohn) for materially misrepresenting facts concerning a polyurethane spray foam which the latter sold to the former. Defendant counterclaims for the outstanding balance on an account plaintiff has with Upjohn. Our jurisdiction rests upon 28 U.S.C. § 1332, and venue is proper.

LIABILITY

Delta was incorporated in 1972. Several persons, who later owned and worked for plaintiff, had observed polyurethane being sprayed to insulate buildings. They decided to attend a week-long class in North Haven, Connecticut, which Upjohn prepared and presented for those learning the polyurethane business.

After attending that school, reviewing literature concerning the foam, and experimenting with small amounts of polyurethane, Delta officials began expanding their business. They purchased large quantities of the chemicals used in making the foam from Upjohn, and completed jobs for several customers in late 1972 and early 1973.

A combination of events in 1973 caused a shadow to fall over the polyurethane business nationwide. The Federal Trade Commission (FTC) began investigating complaints concerning burning characteristics of polyurethane. News media reports, and a special documentary report on national television, heightened public attention by showing that polyurethane was not as safe a building material as had been advertised.

The controversy surrounding polyurethane products caused plaintiff's business to grind to a screeching halt. Some smaller insulating projects were undertaken, but, by and large, its business became unprofitable because it could not find enough customers who felt the product was safe and economical.

Defendant supplied the necessary chemicals to produce CPR 425, a polyurethane foam used by plaintiff to insulate buildings for customers. In numerous trade journals, advertisements, and even at the North Haven training school, Upjohn represented its polyurethane as being self-extinguishing and safe. It published burn-retardancy factors, flame and heat resistance figures, easy application, and other characteristics concerning foam which supposedly made polyurethane a builder's gold mine and a fire marshal's dream.

Delta relied upon Upjohn's representations that CPR 425 was a safe and potentially profitable building material. It could not afford to test each material it bought so it relied upon the reputation and representations made by Upjohn. Delta officials testified that they would not have purchased defendant's polyurethane if they had known that the foam needed a protective coating or a sprinkler system to install it safely because these precautions significantly increased insulation costs of buildings.

Plaintiff seeks enhanced damages based on its claim that Upjohn deliberately misrepresented the chemicals in bad faith, and thus defrauded Delta. We find no evidence of fraud or bad faith on Upjohn's part. Consequently, the more remote damage, e. g., loss of plaintiff's business reputation, has not been proven. La.R.C.C., Art. 1934.

Since plaintiff here seeks attorney fees, defendant argues that plaintiff filed its complaint untimely.¹ Defendant contends that Delta is claiming damages for a redhibitory vice or defect² inasmuch as attorney fees are recoverable in such actions. La.R.C.C., Art. 2545. Palmer v. Anchor Marine, Inc., et al., 331 So.2d 114 (La.App. 1st Cir., 1976). But, these may not be awarded where the claims are based upon an express warranty of quality. Morein v. G. J. Deville Lumber Company, 215 So.2d 208 (La.App. 3rd Cir., 1968).

As the Civil Code Article explains, redhibitory defects are hidden vices of which buyers are unaware when they purchase products or things. Here, Upjohn represented that its CPR 425 was flame-retardant and self-extinguishing, claims which the facts of this case show are not so, and were held by FTC to be misleading and unfair:

"PARAGRAPH SIXTEEN: In truth and in fact:

"(a) The aforesaid ASTM test standards are neither reliable nor accurate tests for determining, evaluating, predicting or describing the burning characteristics of Plastics Products under actual fire conditions.

"(b) The aforesaid descriptive terminology and expressions, including `non-burning', `self-extinguishing', `25 flame spread', and the like, neither reliably nor accurately describe the burning characteristics of Plastics Products under actual fire conditions." In the Matter of: Society of the Plastics Industry, Inc., et al, before the Federal Trade Commission, Docket No. C-2596, November 4, 1974. (Plaintiff's Exhibit No. 6, page 11.)

The thrust of plaintiff's claim is to recover, not for a hidden defect, a redhibitory vice; instead, it is to be awarded damages for breach of the express warranties Upjohn made when it sold the chemicals. Therefore, the proper prescriptive period (Statute of Limitations) is founded in La.R. C.C., Art. 3544 — ten years — not the one-year period provided by Art. 2534.

Defendant similarly argues that plaintiff's claim is in the nature of a delict, or tort, and a one-year peremptive period for filing claims should apply. La.R.C.C., Art. 3536.

We find, however, that Upjohn misrepresented its product, though not with fraudulent intent. Hence, it breached its contractual representations made to plaintiff through its advertising and sales literature, and upon which plaintiff was entitled to rely when purchasing CPR 425.

Defendant claims that there was no restrictive buying or selling agreement confected between Upjohn and Delta, consequently, there was no contractual relationship between them. Although plaintiff and defendant were not parties to a written agreement or guarantee that CPR 425 was self-extinguishing, Upjohn advertised and sold it as having characteristics which it did not have, and failed to advise Delta as a purchaser, of its flammable qualities. Therefore, plaintiff properly seeks recovery for breach of contract.

Defendant contends that Delta officials made the decision to purchase polyurethane independently of Upjohn's advertisements, literature, and the knowledge of the product they acquired in North Haven. The evidence does not support that contention at all.

Delta's owners were intrigued with the foam after first seeing it being applied, but they only dabbled with it until they read the Upjohn literature, attended the school in Connecticut, and were led to believe that CPR 425 could be used economically for insulation in their construction business. In short, Delta relied upon Upjohn's representation that CPR 425 was a safe insulant. Had it known that a protective coating or a sprinkler system was needed to help prevent fire damage to the material and to the buildings in which it was applied, Delta probably would not have bought polyurethane because other urethane insulants would have been more economical.

Upjohn further argues that plaintiff's damage was caused by poor internal management, rather than misrepresentations concerning its product. Delta's business was increasing steadily until the adverse publicity concerning polyurethane was aired. Suddenly, public officials and others managing large buildings lost interest in the product and would not consider using it for insulation. As interest faded, Delta's business rapidly declined.

Defendant attempts to excuse its misrepresentations by asserting a "then state of the art" defense. It claims that all companies which produced polyurethane chemicals were advertising their products as "non-burning" and "self-extinguishing." The simple fact is that Upjohn misrepresented CPR 425, and pl...