NEW HOME WARRANTY ACT – In Shaw v. Acadian Builders and Contractors, LLC, 2013-0397 (La. 12/10/13), the Louisiana Supreme Court held that the appellate court misinterpreted the definition of “major structural defect” in the NHWA. The trial court determined that a stucco exterior was not properly applied and sealed by the builder. This allowed water to accumulate within the walls which, in turn, caused the loadbearing wall studs to rot. This rendered the home “unsafe, unsanitary and unlivable” under the five-year warranty provision in the NHWA statute.
However, the appellate court ruled that the NHWA’s 5 year warranty did not apply because the improperly constructed stucco and moisture barrier system was not “loadbearing.” The Supreme Court reversed and held that the defective component does not have to be “loadbearing” for a warranty violation to constitute a “major structural defect.”
MEDICAL MALPRACTICE – In Snider v. Louisiana Medical Mut. Ins. Co., 2013-0579 (La. 12/10/13), the Louisiana Supreme Court reversed the appellate court’s ruling that the defendant-physician committed malpractice when he failed to obtain informed consent. The plaintiff alleged that the defendant-physician performed unnecessary pacemaker implantation surgery which resulted in complications requiring further treatment and surgery.
At trial, the jury found that the plaintiff failed to prove that the physician breached the applicable standard of care. On appeal, the plaintiff raised multiple assignments of error. The appellate court found merit only in the allegation that the doctor failed to properly provide all of the information required by subsection (E) of the Louisiana Uniform Consent Law.
The Supreme Court reversed and remanded the matter back to the appellate court. The Court ruled that the appellate court should have employed a “manifest error” standard of review with regard to informed consent as opposed to the appellate court’s direct finding that the jury was wrong based upon the noncompliance with subsection (E).
FORUM SELECTION – In Fidelak v. Holmes European Motors, 2013-0691 (La. 12/10/13), the issue was the enforceability of a forum selection clause contained in a contract between an auto repair shop and an engine supplier. The plaintiffs in the main demand filed suit in Louisiana State District Court against a Louisiana repair shop when the engine installed in their 2004 Land Rover failed a few days after the work was performed.
The repair shop then filed a third party demand against the Texas-based engine wholesaler from whom the repair shop had purchased the engine. The wholesaler filed an exception of improper venue based upon a Texas forum selection clause in its contract with the repair shop. The trial court held that the forum selection clause was valid and enforceable such that the exception was sustained. The appellate court affirmed the trial court. After noting that the issue was res nova, the Louisiana Supreme Court reversed, finding that pursuant to LSA-C.C.P. art. 1034 the third-party defendant may not object to venue if the venue of the underlying “principal action” is proper.