National Union Fire Ins. Co. v. Harrington

Decision Date17 April 2003
Docket Number No. 02-833., No. 02-832
Citation854 So.2d 880
PartiesNATIONAL UNION FIRE INSURANCE COMPANY OF LOUISIANA v. Burt HARRINGTON, et al.
CourtCourt of Appeal of Louisiana — District of US

G. Edward Williams, Jr., F. Douglas Gatz, Jr., Jennifer A. Wells, Preis, Kraft & Roy, Lafayette, LA, for Plaintiff/Appellant, National Union Fire Insurance Company of Louisiana.

Tracy P. Curtis, Perret Doise, APLC, Lafayette, LA, for Defendants/Appellants, Progressive Security Insurance Company Burt Harrington.

J. Minos Simon, Chris P. Villemarette, J. Minos Simon, Ltd., Lafayette, LA, for Plaintiff/Appellant, Mary Electa LeBlanc.

William F. Bologna, Habans, Bologna & Carriere, New Orleans, LA, for Defendant/Appellee, DaimlerChrysler Corporation.

Stephen E. Broyles, Glusman, Broyles & Glusman, LLC, Baton Rouge, LA, for Defendant/Appellant, DaimlerChrysler Insurance Company.

John S. Thibaut, Jr., Thibaut, Thibaut & Vogt, Baton Rouge, LA, for Defendant/Appellee, Royal Insurance Company of America.

Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges. SULLIVAN, Judge.

This appeal arises out of a vehicle fire which resulted in the total loss of Mary Electa LeBlanc's residence. After a jury trial, judgment was rendered in favor of Mrs. LeBlanc and her homeowner's insurer, National Union Fire Insurance Company of Louisiana (National Union). All parties to the judgment, except one defendant, appeal. For the following reasons, we affirm.

Facts

On November 3, 1996, a 1996 Dodge Neon, owned by Acadiana Dodge, Inc. (Acadiana Dodge) and in the possession and use of Burton Harrington, caught on fire while parked under the carport of Mrs. LeBlanc's home in Lafayette. The fire spread quickly, totally destroying the Neon and Mrs. LeBlanc's home. At the time the fire ignited, Mr. Harrington was seated in the Neon. He escaped from the car without harm and unsuccessfully tried to extinguish the fire with a water hose. Mrs. LeBlanc was not at home when the fire started, but returned home when she learned of the fire.

Mr. Harrington rented a mobile home from Mrs. LeBlanc, which was situated on her property behind her home. He testified that he picked up the Neon at Acadiana Dodge on Friday, November 1, 1996, because his car, which was in the body shop there for repairs, was not ready. According to Mr. Harrington, the Neon stayed parked at Mrs. LeBlanc's until he went out Saturday evening at about 8:00 p.m., when he went to Scandals, a lounge located in Lafayette. Mr. Harrington remained at Scandals until it closed at 2:00 a.m. At that time, he returned to Mrs. LeBlanc's. He testified that he drank three to four beers during the evening.

When he arrived back at Mrs. LeBlanc's, Mr. Harrington parked the Neon under her carport which was his custom. He and Mrs. LeBlanc testified that after an evening out he would often stay in his car and listen to music. Mr. Harrington testified that he did the same the morning of the fire, explaining that he parked the car, turned off the ignition, but then turned the ignition to the auxiliary position to operate the radio. Evidently, he fell asleep as he listened to the music and woke up some time later. He testified that he did not remember anything between 2:15 a.m. when he parked the Neon and 4:06 a.m. when he awoke. He further testified that after being awakened by the cold air, he turned on the ignition to turn on the heater. He explained that he turned the ignition, but the car did not start. He denied that he fell asleep with the engine on and his foot on the accelerator. Mr. Harrington testified that he heard a "pop, pop, pop" sound and saw flames shooting out from under the hood when he tried to start the car. He described the car as a "flame thrower." He turned off the car, exited the driver side door, ran to his mobile home, and called 911. He returned and tried to extinguish the fire with a water hose.

National Union paid Mrs. LeBlanc for the loss of her home, then filed suit to collect what it had paid her from the parties liable for the fire. Mrs. LeBlanc also filed suit for damages which exceeded the coverage provided by National Union's policy. Her suit was consolidated with National Union's suit. Named defendants in the consolidated suits were DaimlerChrysler Corporation (DaimlerChrysler); Acadiana Dodge; Hertz Claims Management Corporation (Hertz); DaimlerChrysler Insurance Company (DaimlerChrysler Ins.), insurer of Acadiana Dodge; Royal Insurance Company of America (Royal), insurer of Acadiana Dodge and alleged insurer of Mr. Harrington, as customer of Acadiana Dodge; Mr. Harrington; and Progressive Security Insurance Company (Progressive), his insurer. Mr. Harrington filed cross-claims against DaimlerChrysler and Royal.

Mr. Harrington and Progressive filed a motion for summary judgment on the issue of their liability which was denied. An application for writs of certiorari on this issue was denied by this court. Daimler-Chrysler Ins. filed a motion for summary judgment, asserting that Acadiana Dodge and Hertz were entitled to summary judgment on the issue of liability. Summary judgment in favor of Hertz was not opposed and was granted. After a hearing, summary judgment was granted in favor of Acadiana Dodge. Royal also filed a motion for summary judgment on the basis that, under the facts of this case, neither its liability policy nor its umbrella policy provided coverage for Acadiana Dodge or Mr. Harrington. The motion was granted by the trial court.

The matter was tried before a jury which found Mr. Harrington solely at fault in causing the fire. The jury also determined that Mr. Harrington rented the Neon from Acadiana Dodge, rather than Acadiana Dodge loaning it to him. It awarded $125,000.00 in general damages and $161,500.00 in special damages. National Union, Mrs. LeBlanc, Mr. Harrington and Progressive, and DaimlerChrysler Ins. filed appeals. We first address assignments of error pertaining to the trial court. Assignments of error pertaining to the jury's actions follow.

Summary Judgment

The trial court's grants of summary judgment in favor of Acadiana Dodge, DaimlerChrysler Ins., and Royal are assigned as error. The denial of summary judgment in favor of Mr. Harrington and Progressive is also assigned as error.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether a summary judgment is appropriate. Schroeder v. Bd. of Sup'rs of La. State Univ., 591 So.2d 342 (La.1991). The mover is entitled to judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with supporting affidavits, if any, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

Acadiana Dodge & DaimlerChrysler Ins.

National Union, Mr. Harrington, and Progressive complain that the trial court should not have granted summary judgment in favor of Acadiana Dodge and DaimlerChrysler Ins. Their opposition is based upon Acadiana Dodge's maintenance of the Neon. The Neon was purchased by Acadiana Dodge from DaimlerChrysler and used exclusively as a rental unit from the time of its purchase until the time of the fire. The owner's manual for the Neon recommended an oil and filter change at 7,500 miles; however, maintenance records reflect that the oil and filter were not changed until the Neon had been driven 8,704 miles. Additionally, Acadiana Dodge was not able to produce all of the rental agreements for the Neon and approximately 522 miles are not documented.

Acadiana Dodge's alleged liability is based upon La.Civ.Code art. 2317.1 which provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

The claims that Acadiana Dodge's lack of maintenance caused the fire are not supported by evidence. The only theory of liability regarding Acadiana Dodge is that the jury could have concluded that the lack of maintenance caused the fire. It is not supported by any factual or expert evidence. Furthermore, for Acadiana Dodge to be liable under La.Civ.Code art. 2317.1, it had to know, or it should have known, that its maintenance procedures could cause the Neon to catch on fire. Nothing in the record indicates any such knowledge by Acadiana Dodge.

Defendants also argue that Acadiana Dodge had true garde of the Neon and under the evidentiary rule of res ipsa loquitur the jury could have assessed fault to it. Res ipsa loquitur is a rule of circumstantial evidence. It is applicable only when the facts and evidence indicate that the defendant's negligence is the most plausible explanation for the plaintiff's injury. Montgomery v. Opelousas Gen. Hosp., 540 So.2d 312 (La.1989). There was no evidence that Acadiana Dodge's maintenance of the Neon was the most plausible explanation for the fire.

Defendants also argue that, because Acadiana Dodge removed the Neon from Mrs. LeBlanc's home after the fire and it was destroyed some time thereafter, it should be held liable under the spoliation of evidence rule. Spoliation of evidence is the intentional destruction of evidence to deprive the plaintiff of its use. See Kammerer v. Sewerage & Water Bd. of New Orleans, 93-1232 (La.App. 4 Cir. 3/15/94), 633 So.2d 1357, writ denied, 94-0948 (La.7/1/94); 639 So.2d 1163; Williams v. Gen. Motors Corp., 607 So.2d 695 (La.App. 4 Cir.1992). Where suit has not been filed and there is no evidence that a party knew suit would be filed when the evidence was discarded, the...

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