Judith C. Merwin VS Douglas G. and Elizabeth Ann Benzer Spears and Farmers Insurance Group
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0341 JUDITH C MERWIN VERSUS DOUGLAS G AND ELIZABETH ANN BENZER SPEARS On Appeal from the 21st udicial District Court l Parish of Tangipahoa Louisiana Docket No 2008 Division H 0001813 Honorable Zorraine M Waguespack udge Presiding Berthelot Ronnie Shows Cali Berthelot Attomey for Walsh LLP Appellant Plaintiff Baton Rouge LA udith C Merwin John B Edwards Attorneys for Appellees Defendants Bradley A Edwards Amite Stevens Associates Law Firm LA Valerie Briggs Bargas Kinchen Walker Bienvenu Reed Bargas Douglas G Spears and Elizabeth Ann Benzer Spears Attorney for Appellee Defendant FarmersInsurance Ezchange Baton Rouge LA BEFORE PARRO HUGHES AND WELCH J7 udgment 1 rendered R 1 Q ZQ Gfil l 1 if 1 Justice efferson D Hughes III is serving as judge ad hoc by special appointment of the Louisiana Supreme Court PARRO J PlaintifF challenges the summary judgment granted by the trial court in favor of the defendants Douglas G and Elizabeth Ann Benzer Spears dismissing the plaintiff s claim against them For the reasons that follow we reverse and remand FACTUAL BACKGROUND AND PROCEDURAL HISTORY In May 2007 7udith C Mervvin and her live companion Dragan Petrovic in began living in a home owned by Mr and Mrs Spears the Spears pursuant to a lease agreement On July 11 2007 Ms Mervvin purchased the home and the underlying tract of land from the Spears Ms Merwin also obtained a homeowner sinsurance policy from Farmers Insurance Exchange Farmers to provide coverage for the property Shortly after purchasing the home Ms Menvin and Mr Petrovic each left for their assignments aboard separate ships as merchant marines At the times they left the home was in good physical working order and neither one had noticed any water leaking or smelled any musty or moldy odor in the house However when Mr Petrovic returned to the house on September 11 2007 upon concluding his employment as a merchant marine he immediately noticed that the carpets in the house were saturated with water and he smelled a strong odor of mildew and mold Merwin while she was still at sea to inform her of the He then called Ms damages Ms Merwin subsequently reported the water leak and damage to Farmers Ms Merwin finally returned home from her assignment on September 25 2007 The next day Farmers adjuster John Wesley Page Jr inspected the home and concluded that the water leak was a leak that had predated the policy slow Ms Merwin then hired her own inspector Danny Jackson who was able to determine the source of the leak by removing a portion of the sheetrock in the master bathroom revealing a leak in which water sprayed out of a pipe found inside the wall Mr Page Z The petition originally incorrectly named this defendant as Farmers Insurance Group however the parties later filed a joint motion to substitute Farmers Insurance Exchange as the proper party defendant 3 Mr Petrovic left for his assignment on July 26 2007 and Ms Menvin left on July 28 2007 2 then returned to the home for a second inspection however despite being made aware of Mr Jackson findings Mr Page continued to maintain that the leak was a slow leak s that had predated the policy Based on Mr Page findings Farmers denied coverage s with reference to certain exclusions under the policy Thereafter Ms Merwin filed a petition for redhibition and damages naming the Spears and Farmers as defendants In the petition Ms Merwin alleged that the properry had redhibitory defects at the time of the sale that rendered the home completely useless for its intended purpose and that the Spears knew or should have known of these defects Therefore she requested a rescission of the sale and a return of the purchase price plus an award of attorney fees In the alternative she requested a reduction in the purchase price Ms Merwin further alleged that Farmers was liable for the damages to the home caused by the water leak as well as additional damages for lost wages mental anguish living expenses and damages to the personal contents of the home Ms Merwin further contended that Farmers failure to pay pursuant to the policy constituted bad faith on its part Farmers and the Spears each filed motions for summary judgment which were denied by the trial court after separate hearings Thereafter Crawford Engineering LLC Crawford Engineering and American Leak Detection conducted various inspections of Ms Merwin home and its plumbing system on behalf of Farmers and ultimately s determined that the leak in the home was more likely than not sudden and accidental occurred during the absence of the homeowner and caused damages to the lower interior finishes of the home including baseboards laminated wood flooring carpet wood door trim and wall paneling After receiving the results of these inspections Farmers unconditionally tendered two sums of money to Ms Merwin 4 Farmers applied for supervisory writs to this court concerning the denial of its motion for summary judgment however this court denied the writ application on February 4 2010 2365 La App lst Cir 2 unpublished 10 4 3 Merwin v Scears 09 pursuant to the homeowner spolicy Thereafter Ms Merwin filed a motion for summary judgment on the issue of whether Farmers had arbitrarily and capriciously denied coverage and had acted in bad faith The Spears also filed a second motion for summary judgment seeking to have Ms Merwin petition dismissed as to them s While the Spears second motion was largely identical to the first motion the second motion also relied on certain evidence obtained from the tests run by Farmers expert witnesses which was not available at the time the Spears filed the first motion The trial court granted Ms Merwin motion for summary judgment on the issue s of Farmers bad faith but refused to certify it as a final judgment The trial court also granted the Spears motion for summary judgment and dismissed Ms Merwin claim s against them It is from this judgment that Ms Merwin has appealed APPLICABLE LAW In determining whether summary judgment is appropriate appellate courts conduct a de novo review of the evidence employing the same criteria that govern the district court determination of whether summary judgment is appropriate Schwehm s v Jones 03 La App lst Cir 2 872 So 1140 1144 0109 04 23 2d On a motion for summary judgment the burden of proof remains with the movant However if the moving party will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the moving party burden on the motion is s to point out to the court that there is an absence of factual support for one or more elements essential to the adverse parly claim action or defense Thereafter if the s adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material 5 Farmers tendered two checks to Ms Merwin One was in the amount of 51 and the other was 65 109 in the amount of 4 000 6 On November 14 2011 Farmers applied for supervisory writs to this court concerning the granting of Ms Mervvin motion for summary judgment finding that it had acted in bad faith This court denied the s writ Menvin v Soears 11 La App lst Cir 3 however the supreme court 2256 unpublished 11 28 granted the writ and in a per curiam reversed the judgment of the trial court finding genuine issues of material fact existed as to whether Farmers initial decision to deny the claim had been reasonable and remanded the matter for further proceedings Merwin v Spears 12 La 6 90 So3d 1041 0946 12 22 4 fact and the moving party is entitled to judgment as a matter of law See LSA P C art 966 2 C A fact is material if it is essential to a cause of action under the applicable theory of recovery Generally material facts are those that potentially insure or preclude recovery afFect a litigant ultimate success or determine the outcome of a legal s dispute 730 751 Smith v Our Lady of the Lake Hosp Inc 93 La 7 639 So 2512 94 5 2d Because it is the applicab substantive 1aw that determines materialiry e whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case Guardia v Lakeview Regional Medical Center 1369 08 La App lst Cir 5 13 So 625 628 09 8 3d In a contract of sale the seller warrants the buyer against redhibitory defects or vices in the thing sold LSA art 2520 A defect is redhibitory when it renders the C thing useless or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect The existence of such a defect gives a buyer the right to obtain rescission of the sale Id A defect is redhibitory also when without rendering the thing totally useless it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price The existence of such a defect limits the right of a buyer to a reduction of the price Id A buyer may choose to seek only reduction of the price even when the redhibitory defect is such as to give him the right to obtain rescission of the sale LSA C art 2541 In an action for rescission because of a redhibitory defect the court may limit the remedy of the buyer to a reduction of the price Id DISCUSSION In their second motion for summary judgment the Spears contend that the alleged redhibitory defect did not exist at the time of sale In support of this argument the Spears rely on Ms Merwin pieadings as well as the affidavits and depositions of s Ms Merwin and Mr Petrovic which unequivocally demonstrate that neither of them observed any water release in the home nor did they smell any musty and or 5 mold mildew odor in the home from the date of the sale through the dates they left for their respective assignments aboard separate ships as merchant marines The Spears also rely on these depositions to demonstrate that there was no evidence of any leak and no water damage during the time that Ms Merwin and Mr Petrovic lived in the house prior to the act of sale The Spears further rely on the report produced by Farmers expert Crawford Engineering This report noted the existence of a cracked PVC joint behind the sheetrock of the wall in the master bathroom According to the report the crack was sizeable and allowed a substantial amount of water to flow freely within the wall cavity under minimal test pressure and flow Because of the sizeable nature of the crack and the considerable amount of water capable of flowing through the crack Crawford Engineering concluded that the leak was more likely than not sudden and accidentai The Spears contend that these fndings as well as the affidavits and depositions of Ms Merwin and Mr Petrovic demonstrate that the water leak was not a slow and gradual leak that existed prior to the sale Instead the Spears argue that because the leak was very substantial any resulting damage would have been noticeable in a very short period of time As such the leak could only have occurred subsequent to the date of sale Ms Merwin acknowledges that she saw no evidence of any water leak or damage from the time she moved into the house in May 2007 through July 28 2007 when she left for her assignment aboard ship as a merchant marine However the lack of any obvious damage to the home during that period is not at issue Indeed had Ms Merwin been aware of the leak at the time of the sale the Spears would owe no warranty for any damages resulting therefrom because the leak would have been known to Ms Menvin at the time of sale See LSA art Z521 Instead the issue is C whether the defect that ultimately led to the leak existed at the time of the sale A review of the Crawford Engineering report indicates that the leak was the result of a crack in a PVC joint directly behind the master bathroom tub 6 Upon closer inspection Crawford Engineering determined that the PVC line servicing this joint had been pulled into piace under tension before being secured with glue instead of being secured with an additional Tee Based on this information Crawford Engineering joint concluded that the PVC joint damage which resulted in the leak occurred suddenly due to stresses within the joint that were applied during initial installation According to the deposition of Douglas Spears he and his wife had contracted for the building of the house and began living in it in 1965 The house originally had copper plumbing however at some point they had to replace the copper lines with PVC lines Mr Spears acknowledged that he did some minor plumbing work around the house and although he doubted that he had he could not remember if he had installed these PVC lines himseff In any event it is clear that the installation of the PVC lines complete with the allegedly improper installation of the line servicing the PVC joint directly behind the master bathroom tub which is the alleged defect in this matter took place prior to the sale Based on a thorough de novo review of the record it is clear that the Spears have failed to negate a crucial element in their defense against Ms Merwin claim that s the home contained a redhibitory defect at the time of the sale Because the Spears failed to point out to the court that there was an absence of factual support for one or more elements essentiai to Ms Merwin claim the burden of proof never shifted to Ms s Merwin to offer any evidence in support of her claim See LSA art 966 P C 2 C Accordingly the summary judgment granted in favor of the Spears is reversed DECREE For the foregoing reasons the summary judgment in favor of Douglas G and Elizabeth Ann Benzer Spears is hereby reversed and this matter is remanded to the trial court for further proceedings All costs of this appeal are assessed to Douglas G and Elizabeth Ann Benzer Spears REVERSED AND REMANDED According to Crawford Engineering report Tee are used to change direction of water flow and s joints to allow tension connections free compression 7
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