KSLA-TV, Inc. v. Radio Corp. of America, KSLA-T
| Decision Date | 14 December 1982 |
| Docket Number | No. 81-3528,KSLA-T,INC,81-3528 |
| Parties | , Plaintiff-Appellant Cross-Appellee, v. RADIO CORPORATION OF AMERICA, Defendant-Appellee Cross-Appellant, v. STAINLESS, INC., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
McGlinchey, Stafford & Mintz, C.G. Norwood, Jr., B. Franklin Martin, New Orleans, La., for plaintiff-appellant cross-appellee.
Bodenheimer, Jones, Klotz & Simmons, G.M. Bodenheimer, Shreveport, La., for RCA.
Deutsch, Kerrigan & Stiles, Ralph L. Kaskell, Jr., New Orleans, La., for Stainless.
Alex F. Smith, Jr., Shreveport, La., for Bethlehem Steel Corp.
Adams & Reese, Robert B. Nolan, New Orleans, La., for Lexington Ins. Co.
Cook, Yancey, King & Galloway, Herschel E. Richard, Jr., Shreveport, La., for Home Ins. Co.
Appeals from the United States District Court for the Western District of Louisiana.
Before BROWN, WISDOM and RANDALL, Circuit Judges.
The appeal in this diversity action controlled by Louisiana law is from an order granting the defendant's motion for summary judgment. The case involves the Louisiana preemptive statute, La.Rev.Stat.Ann. Sec. 9:2772 (West Supp. 1981), 1 as applied to a complaint seeking damages for the collapse of a broadcasting tower.
On May 15, 1964, KSLA of Shreveport, Louisiana, and Radio No. Corporation of America (RCA) entered into a contract for the purchase and installation of a television tower, designed to hold an RCA television antenna. The contract provided for a tower 1,709 feet in height. RCA entered into a subcontract with Stainless, Inc. to design and fabricate the tower. Stainless informed KSLA on November 17, 1964, that "installation is in accordance with Stainless, Inc. drawings and ... no outstanding deficiencies on the tower exists [sic] at this time". 2 On October 8, 1977, the tower collapsed due to undetermined causes. KSLA filed this action on October 4, 1978, seeking damages from RCA and Stainless in the amount of $1,269,986 for out-of-pocket expenses, and $575,000 for loss of income. 3 RCA filed a third party complaint against Stainless and Stainless filed a third party complaint against Bethlehem Steel, which had supplied Stainless with the steel components of the tower.
Early in the litigation and before any discovery, RCA and, later, Stainless moved for summary judgment, alleging that KSLA's claim was preempted under the ten-year liberative period that Louisiana Rev.Stat.Ann. Sec. 9:2772 establishes for claims arising from "the construction of an improvement to immovable [real] property". The statute is inapplicable to a contract of sale. The trial court denied these motions on the ground that resolution of the issue depended "upon the characterization of the transactions between KSLA and RCA as a construction contract or as a contract of sale", an issue of fact inappropriate for summary disposition.
The parties then engaged in extensive discovery. When discovery had been virtually completed Stainless renewed its motion for summary judgment relying on an affidavit and numerous exhibits to establish that the transaction was a construction contract, not a contract of sale to which Sec. 2772 would be inapplicable. KSLA filed a cross-motion for summary judgment against RCA and Stainless, asserting that the preemptive statute was inapplicable, that KSLA was entitled to a judgment in its favor for breach of warranty, and that issues of material fact precluded summary judgment in favor of Stainless. The district court granted the motion of Stainless for summary judgment and denied KSLA's motion for summary judgment against RCA and Stainless. Later, the court granted motions by RCA and its insurers for summary judgment against KSLA, and Stainless was awarded summary judgment on a contractual indemnity claim RCA had asserted. KSLA moved for reconsideration and on denial of this motion appealed. RCA appealed the dismissal of its claim against Stainless.
In his ruling the trial judge stated:
KSLA opposes the motion on three distinct grounds. First, KSLA continues in its belief that the transaction was a contract of sale, so that Sec. 2772 is inapplicable. KSLA argues alternatively that, even if the transaction was a construction contract, Sec. 2772 cannot constitutionally be applied to this particular contract. Finally, KSLA contends that Sec. 2772 does not apply to...
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