Category: Louisiana

Homeowners Awarded Money Damages Against “Good Faith” Seller of In-Ground Swimming Pool

Anyone who has spent time in the humid South knows why swimming pools are popular. The Hoffmanns, Louisiana residents, tried to purchase an in-ground swimming pool to entertain their grandchildren but found the pool was far from the oasis they imagined. Recently, in Hoffmann v. B & G, Inc., 2016-1001 (La. App. 1 Cir. 2/21/17), 215 So.3d 273, the First Circuit upheld an award in their favor which returned the price of the pool and additional costs related to its installation even though the seller was unaware of the problems with the pool at the time of sale.

The Hoffmanns  asserted what is known in Louisiana law as a “redhibition” claim. Redhibition allows purchasers to void a sale if the thing bought has a “vice or defect” that makes it either:

(1) useless, or

(2) so inconvenient that the buyers would not have bought the thing had they known of the problem.

When the Hoffmanns purchased the pool, the seller arranged to have it installed, which was included in the price. The Hoffmanns used the pool for two summers. However, when they uncovered the pool for its third summer of use, they discovered that the pool liner had detached. The Hoffmanns later learned that the manufacturer no longer recommended their specific pool to be installed completely in-ground.

With redhibition, “good faith” sellers (sellers who did not know of the defect) must be given the chance to repair or replace the defective thing. Instead of repairing the pool, the seller of the Hoffmanns’ pool arranged for a new pool to be installed by a third party. Unfortunately, this second “replacement” pool also failed, this time because of an installation issue.  After the second pool failed, the Hoffmanns filed suit.

The pool company argued that the Hoffmanns could not support a redhibition claim because the second pool they provided did not have a defect, but instead failed because of faulty installation. It claimed that it discharged its redhibition duties with respect to the first pool when it replaced the pool. The court disagreed and found that the “object” of the sale was a functioning in-ground swimming pool and that, after all of the efforts to repair and/or replace the original pool, the Hoffmanns still did not have a “defect-free useable in-ground swimming pool.”

The Hoffmanns won, making their summer a little more bearable.

“IME” Killer Bill Put Down

The Louisiana plaintiffs’ bar recently sought to tilt the scales of justice through Senate Bill 185, a bill seeking to complicate a defendant’s efforts to obtain an Independent Medical Examination (“IME”). An IME is an examination of the plaintiff by a physician or medical examiner hired by the defense. IMEs are important in the defense of a case and often act as a catalyst for settlement or to reduce the value of a claim.

Bill 185 was introduced by Senator Jay Luneau (D) and passed with a unanimous 35 – 0 vote in the Senate. The bill proposed amendments to Louisiana Code of Civil Procedure Article 1464 to impose the following conditions upon IMEs:

  • All parties would be barred from referring to an IME as “independent” in the presence of a jury. 
  • A plaintiff could not be ordered to submit to multiple examinations by multiple physicians within the same field of specialty, regardless of the number of defendants. 
  • The party to be examined would have the right to have a person of his or her choosing present during the exam, including the plaintiff’s attorney.
  • The party to be examined would have the right not only to have the entire examination videotaped, but the ability to force the party requesting the examination to pay for all associated costs. 

Were these conditions enforced, many physicians might have chosen not to provide IMEs at all when the process would involve: a potentially adversarial plaintiff’s attorney; a patient room packed with video equipment; and, the spectacle of it all captured on tape. Further, the bill would have stifled the ability to defend injury claims.

We may never know what effect these changes might have brought. On May 16, 2017, the House Civil Law and Procedure Committee, involuntarily deferred on a 4-4 vote. This action effectively killed the bill and saved the IME as currently understood.

 

By: John Grinton, a Keogh Cox associate whose practice areas include commercial and construction litigation. When he is not practicing law, John spends most of his time with his wife, Kellye, and their two dogs.

One More Reason: Louisiana’s “Drunk Driving” Immunity

A conviction for DWI brings the consequences you might expect, such as the loss of driving privileges, expensive attorneys’ fees, and public embarrassment. However, there is one additional, less-obvious consequence of which many are unaware; Louisiana provides immunity from claims brought by a drunk driver who was at least 25% at fault in the accident which caused his injuries, no matter how severe the injuries.

Generally stated, if you are driving drunk and are in an accident that is mostly someone else’s fault, you will not be able to recover for the injuries you sustain.  Similarly, if your fault injures a drunk driver, the statute may shield you from liability.  The “drunk driving” immunity is found in La. R.S. 9:2798.4. The statute provides immunity against the claims of a driver with a blood alcohol level of .08 or higher. 

The immunity may even apply to defendants who were not directly involved in the accident. In Stewart v. Daiquiri Affair, Inc., 20 So.3d 1041 (La. App. 1st Cir. 2009), writ denied, 19 So.3d 477 (La. 2009), the immunity was found to apply to claims brought by an 18-year-old employee who consumed alcohol on the premises and was subsequently injured in a motor vehicle accident. Rejecting the argument that immunity should not apply when the employer arguably contributed to the under-age plaintiff’s consumption of alcohol, the appellate court in Stewart concluded that the statute’s language required immunity because the employee was more than 25% at fault and her blood alcohol content was over the legal limit.

Because the “drunk driving” immunity statute is supported by the legislature’s strong and long-standing interest in protecting citizens against drunk driving, it has been upheld and applied in many instances. Although you should not need another reason to not drive drunk, you now have one.

The “Great Flood of 2016”–Update and Resources

flood 3

“Disaster Declaration” Expanded. The list of parishes now declared disaster areas by the federal government has increased to include the following parishes: Acadia, Ascension, East Feliciana, Iberia, Lafayette, Pointe Coupee, St. Landry, and Vermilion.

 

http://gov.louisiana.gov/news/additional-parishes-added-to-federal-disaster-declaration-8-16-16

Potential Tax Implications for Flood Victim. For those insured, it is critical that you document your losses with as much detail as possible; serial numbers, make/model/description—the more detail the better. Keep receipts and credit card statements. Time-dated photos are also important. Even those without flood insurance should do the same as it may assist in obtaining FEMA assistance. However, the same documentation of your losses could also help to reduce your tax exposure. The attached link provides key information and outlines the impact the flooding may have on tax-filing and other deadlines.

 

https://www.irs.gov/uac/tax-relief-for-victims-of-severe-storms-flooding-in-louisiana