APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2007-1774, DIVISION "E-7" Honorable Madeleine Landrieu, Judge
The opinion of the court was delivered by: Judge Edwin A. Lombard
CONSOLIDATED WITH: CONSOLIDATED WITH:
HELEN BABIN v. PLANET BEACH TANNING SALONS, INC.
(Court composed of Judge Patricia Rivet Murray, Judge Dennis R. Bagneris, Sr., Judge Edwin A. Lombard)
The third-party plaintiff / appellant, Planet Beach Tanning Salons, Inc. ("Planet Beach"), appeals to this Court a granting of summary judgment in favor of Sybaritic, Inc. ("Sybaritic"), defendant in Planet Beach's third party claim. Planet Beach also appeals the denial of their motion for summary judgment, which was denied in concert with the granting of Sybaritic, Inc.'s motion for summary judgment. For the reasons provided below, we affirm the judgment of the trial court granting summary judgment to Sybaritic, Inc. and consequently denying Planet Beach's summary judgment motion.
Factual and Procedural History
On January 26, 2007, Helen Babin, plaintiff in the original demand, was injured while entering a "Hydration Station" tanning machine at the Planet Beach tanning salon located at 5300 Tchoupitoulas Street in uptown New Orleans. Ms. Babin filed suit against Planet Beach on February 26, 2007. Planet Beach was served with the petition on March 2, 2007, and Planet Beach answered Ms. Babin's petition on May 2, 2007. Following initial discovery and the depositions of Ms. Babin and her expert engineer, Mr. Andrew Lawyer, Planet Beach filed a third-party demand against Sybaritic, which manufactured the "Hydration Station" machine in which Ms. Babin had fallen from. Sybaritic filed several exceptions in response to Planet Beach's third party demand, including an exception of prescription. The exception of prescription was the subject of a prior appeal before this Court in this matter.
Ms. Babin's primary demand against Planet Beach went to trial before a jury while the Court considered Planet Beach's appeal of the district court's granting of an exception of prescription filed by Sybaritic. In this prior appeal, the Court described the jury's finding of negligence against Planet Beach, and Planet Beach's third party demand against Sybaritic, as follows:
While this matter was pending on appeal, the main demand was tried. The jury found that Planet Beach was negligent in preparing the equipment for Babin and negligent in the training of its employees to prepare the machine. Planet Beach alleges that it prepared the hydration station and trained its employees to prepare the machine in accordance with the instructions and procedures provided by Sybaritic. Planet Beach contends that its fault is the direct result of Sybaritic failing to warn it that (1) the use of the hydration state bed when wet increases the risk of a person slipping out of the bed; (2) a possibility exists of an ejection of a user by pulling the canopy down that may have more resistance than usual when the surface is moist; and (3) potential problems exist that the user may encounter under conditions similar to the plaintiff's accident. Planet Beach also argues that Sybaritic, or companies representing Sybaritic, performed all repairs on the hydration station.
The sole issue for our consideration is whether the third-party demand filed by Planet Beach against Sybaritic has prescribed. Planet Beach contends that it has not because a claim for indemnification does not accrue until the party seeking indemnity has been cast in judgment.
Babin v. Planet Beach Tannon Salons, Inc., 2008-1350, p. 2 (La.App. 4 Cir. 3/25/09), 8 So.3d 780, 782. The Court agreed with Planet Beach's assertion, and reversed the granting of Sybaritic's exception of prescription:
.the third-party demand filed by Planet Beach against Sybaritic alleges that the plaintiff's injuries were caused solely by the negligence of Sybaritic and seeks indemnification for all damages and costs Planet Beach may later have to pay. The underlying action was tried on or about 8 December 2008, wherein Planet Beach was found at fault for the plaintiff's injuries. Therefore, its cause of action for indemnity did not begin to run until the judgment ...