Fireman's Fund Ins. Co. v. R.S. Homes, LLC

Decision Date25 March 2020
Docket NumberNO. 2019-CA-0621, NO. 2019-CA-0622,2019-CA-0621
Citation294 So.3d 54
Parties FIREMAN'S FUND INSURANCE COMPANY, as Subrogee of Wiley Verstappen and Everest National Insurance Company, as Subrogee of 714 Girod Condo Association v. R.S. HOMES, LLC and Gene Morrison d/b/a Southern Flooring Wiley Verstappen v. Robert Saavedra, R.S. Homes, LLC and XYZ Insurance Company
CourtCourt of Appeal of Louisiana — District of US

Everett R. Fineran, Jessica A. Roberts, FRILOT L.L.C., 1100 Poydras Street, Suite 3700, New Orleans, LA 70163-3700, COUNSEL FOR PLAINTIFF/APPELLANT

Raymond A. Pelleteri, Jr., PELLETERI & WIEDORN, L.L.C., 433 Metairie Road, Suite 218, Metairie, LA 70005, Charles S. Green, Jr., Andrew M. Maestri, BEAHM & GREEN, 145 Robert E. Lee Boulevard, Suite 408, New Orleans, LA 70124-2552, COUNSEL FOR DEFENDANTS/APPELLEES

(Court composed of Chief Judge James F. McKay, III, Judge Tiffany G. Chase, Judge Dale N. Atkins )

Judge Tiffany G. Chase

Plaintiff, Wiley Verstappen (hereinafter "Ms. Verstappen") appeals the October 26, 2018 judgment of the trial court entering a jury verdict partially in her favor. After consideration of the record before this Court and the applicable law, we affirm the judgment of the trial court.

Facts and Procedural History

Ms. Verstappen entered into a contract with Robert Saavedra (hereinafter "Mr. Saavedra") and his construction company, R.S. Homes, LLC (hereinafter "R.S. Homes")1 to perform various construction renovations throughout her condominium. The initial estimated cost of the renovations was approximately $121,733.98. On September 9, 2010, the day prior to the scheduled renovation completion date, a fire occurred at the condominium. The condominium sustained fire, water and smoke damage. Thereafter, Ms. Verstappen hired Crane Builders to repair the damage and complete the condominium renovations. She also filed a claim with her insurance company, Fireman's Fund Insurance Company, for repairs required as a result of the fire damage.2

On September 9, 2011, Ms. Verstappen filed a petition for damages against Mr. Saavedra and R.S. Homes alleging breach of contract, unfair trade practices, negligence, conversion of funds for unauthorized use and breach of fiduciary duty. Mr. Saavedra and R.S. Homes answered the petition on November 17, 2011.

On October 1, 2013, Ms. Verstappen filed a second supplemental and amending petition for damages.3 She asserted that Mr. Saavedra's negligence caused the fire because he failed to properly remove sawdust material after re-sanding the floor. Mr. Saavedra and R.S. Homes answered the second supplemental and amending petition for damages on November 26, 2013.

A three-day trial began on September 24, 2018, at the conclusion of which the jury returned a verdict partially in Ms. Verstappen's favor. Specifically, the jury found that while R.S. Homes did not breach the contract with Ms. Verstappen, Mr. Saavedra converted funds. The jury awarded Ms. Verstappen $18,546.56 on the conversion claim.4 It was further found that R.S. Homes’ insurance policy with United Fire and Indemnity Company did not provide coverage for conversion, thus the insurance company was not obligated to pay the judgment rendered by the jury.

On November 8, 2018, Ms. Verstappen filed a motion for JNOV or, alternatively, motion for new trial. She maintained that at trial she established that R.S. Homes breached its contract with her; the jury's finding of conversion was inconsistent with its finding that there was no breach of contract; the jury instruction regarding the independent contractor defense misled the jury; the jury foreperson violated the trial court's instruction by commenting about the case on social media; and one of the jurors slept during substantial portions of the trial.

The motion was heard by the trial court on February 18, 2019, and by judgment dated February 26, 2019, the trial court denied Ms. Verstappen's motion for JNOV and motion for new trial. This appeal followed.

Standards of Review

This appeal presents multiple issues which requires the application of different standards of review. Thus, for ease of discussion and fluidity of the opinion, we will address the applicable standard of review prior to our analysis of the issues.

Ms. Verstappen's argument as to the independent contractor defense is divided into two issues: (1) Mr. Saavedra should have pled it as an affirmative defense in order to utilize the defense at trial; and (2) improper jury instructions regarding the independent contractor defense. Whether the independent contractor defense is an affirmative defense is a question of fact. Hyatt v. Mutual of Omaha Ins. Co. , 2014-0282, p. 14 (La.App. 3 Cir. 10/1/14), 149 So.3d 406, 415. When reviewing questions of fact, we apply a manifest error or clearly wrong standard of review. Sassone v. Doe , 2011-1821, pp. 2-3 (La.App. 4 Cir. 5/23/12), 96 So.3d 1243, 1245. We also apply a manifest error standard of review in addressing the jury instructions,5 Seal v. State Farm Fire & Cas. Co. , 2000-2375, pp. 4-5 (La.App. 4 Cir. 3/20/02), 816 So.2d 868, 871-72 ; the jury's findings, Rabalais v. Nash , 2006-0999, p. 4 (La. 3/9/07), 952 So.2d 653, 657 ; and the motion for JNOV, Davis v. Wal-Mart Stores, Inc. , 2000-0445, p. 5 (La. 11/28/00), 774 So.2d 84, 89.

In addressing Mr. Saavedra's testimony regarding his current financial status and juror conduct, we apply an abuse of discretion standard of review. See Prestwood v. City of Slidell , 2002-1786, (La.App. 1 Cir. 5/9/03), 849 So.2d 553, 557. See also West v. Nat'l R.R. Passenger Corp. , 2003-1707, p. 6 (La.App. 4 Cir. 6/23/04), 879 So.2d 327, 332 ; Searle v. Travelers Ins. Co. , 557 So.2d 321, 323 (La.App. 4 Cir. 1990) ; Barnes v. Thames , 578 So.2d 1155, 1161 (La.App. 1 Cir. 1991).


In the case sub judice , the underlying claim revolves around the workmanship of the renovations performed by R.S. Homes. Whether or not R.S. Homes provided defective workmanship to Ms. Verstappen is not germane to our analysis; however, an essential component of her breach of contract claim is the ability to establish poor workmanship. Thus, we must consider the law regarding a contractor's obligation to perform renovations in a workmanlike manner.

In order to prove liability due to defective workmanship, a party must establish: (1) the nature and existence of the defects; (2) that faulty materials or workmanship caused the defects; and (3) the cost associated with the repairs of the defects. Brenner v. Zaleski , 2014-1323, p. 5 (La.App. 4 Cir. 6/3/15), 174 So.3d 76, 80. "A contract for work or service carries an implied obligation on the contractor to perform in a workmanlike manner in default of which he must respond in damages for the losses that may ensue." Gagliano v. Namias , 479 So.2d 23, 25 (La.App. 4 Cir. 1985). Pursuant to La. C.C. art. 2769 "[i]f an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract." Considering these theories, we now address Ms. Verstappen's challenges on appeal.

Ms. Verstappen asserts multiple assignments of error; however, her arguments can be classified into the following categories: (1) Independent Contractor Defense; (2) Evidence of Mr. Saavedra's current financial status; (3) Jury Findings; (4) Juror Conduct; and (5) JNOV. We will address each in turn.

Independent Contractor Defense
Affirmative Defense

Ms. Verstappen argues that the trial court erred in allowing R.S. Homes to assert the independent contractor defense when it was not pled as an affirmative defense in the answer.

La. C.C.P. art. 1005 provides:

The answer shall set forth affirmatively negligence, or fault of the plaintiff and others, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, and any other matter constituting an affirmative defense....

"Louisiana jurisprudence defines an affirmative defense as a defense that ‘raises a new matter, which assuming the allegations in the petition are true, constitutes a defense to the action.’ " Fin & Feather, LLC v. Plaquemines Par. Gov't , 2016-0256, pp. 6-7 (La.App. 4 Cir. 9/28/16), 202 So.3d 1028, 1033 (quoting Bienvenu v. Allstate Ins. Co. , 2001-2248, p. 5 (La.App. 4 Cir. 5/8/02), 819 So.2d 1077, 1080 ). The purpose of the requirement that an affirmative defense must be pled is to give fair notice to the plaintiff and prevent surprise. Id. (quoting Bienvenu , 2001-2248, p. 6, 819 So.2d at 1080 ).

Since affirmative defenses raise issues outside of those presented in a plaintiff's petition for damages, it is necessary that it is pled in order to afford the plaintiff an opportunity to adjust its case in light of the new issue raised. Rider v. Fontenot , 463 So.2d 951, 956 (La.App. 3 Cir. 1985). The independent contractor defense did not raise issues outside of those presented in Ms. Verstappen's petitions. She alleged issues surrounding the subcontractors and their conduct regarding R.S. Homes’ performance. Thus, the independent contractor defense is not an affirmative defense that was required to be specifically pled in R.S. Homes’ answer.

Furthermore, even if the independent contractor defense should have been affirmatively pled, the purpose of an affirmative defense is an issue of notice. In its answer to the original petition for damages, R.S. Homes offers that the damages asserted by Ms. Verstappen were caused by a party for whom it is not responsible. Although the answer did not specifically name Southern Flooring, the subcontractor, as the other party, Ms. Verstappen was made aware that R.S. Homes was asserting that another party was responsible for the damage caused by the fire. R.S. Homes’ assertion in the answer that a party for whom it holds no responsibility caused the fire, put Ms. Verstappen on notice that it was...

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