Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Temes v. Manitowoc Corp.

Court of Appeals of Louisiana, Fifth Circuit

December 23, 2014

ALBERT W. TEMES, JR., STEPHEN C. JUAN, RAYMOND OLIVIER, JR., DORMAN TODD DAVIDSON, EDWARD J. BRANLEY, JR., INDIVIDUALLY AND ON BEHALF OF T. L. STARKE, INC., AND ROY K. SAIA, O/B/O ALGIERS ROY & SONS MUSIC COMPANY, INC.
v.
THE MANITOWOC CORPORATION AND THE SENTRY INSURANCE COMPANY C/W ESPLANADE PLAZA, L.L.C. AND HANOVER INSURANCE COMPANY AS SUBROGEE OF ESPLANADE PLAZA, L.L.C.
v.
THE MANITOWOC COMPANY AND OLIVIER'S AIR CONDITIONING, HEATING AND REFRIGERATION

Page 734

[Copyrighted Material Omitted]

Page 735

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 640-741 C/W 644-211, DIVISION " E" . HONORABLE MARION F. EDWARDS, JUDGE PRO TEMPORE PRESIDING.

         STEPHEN C. JUAN, ATTORNEY AT LAW, Metairie, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

         FRANK A. BRINDISI, ATTORNEY AT LAW, Kenner, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

         FRANCIS H. BROWN, III, EUGENE TERK, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

         Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst.

          OPINION

         STEPHEN J. WINDHORST, J.

Page 736

          [14-93 La.App. 5 Cir. 3] Defendants, Manitowoc Corporation and its liability insurer Sentry Insurance Company (" Manitowoc" ), appeal from a judgment in favor of T.L. Starke, Inc. (" Starke" ) and Roy K. Saia o/b/o Algiers Roy & Sons Music Company Inc. (" ARS" ).[1] The trial court found that plaintiffs bore their burden of proving liability and it awarded damages totaling $109,477.23 to Starke and $54,076.02 to ARS. In a separate judgment, the trial court denied Manitowoc's motion for sanctions. For the reasons that follow, we amend the judgment, and as amended, affirm. We further affirm the trial court's denial of Manitowoc's motion for sanctions.

         This suit arises from a fire that occurred in Mulligan's Tavern (" Mulligan's" ). Mulligan's was located in a shopping center owned by Esplanade Plaza, L.L.C. (" Esplanade" ) on Severn Avenue in Metairie, Louisiana. At the time of the fire, Mulligan's was owned by Flappery, Inc. (" Flappery" ) and operated by Starke.[2] Located inside Mulligan's were video poker and amusement devices that were owned and operated by ARS.

         [14-93 La.App. 5 Cir. 4] Prior to the fire, Flappery entered into negotiations with Starke for the sale of Mulligan's. According to their agreement, Starke took over management of the business while it waited for its video poker and alcohol licenses. Starke began managing the business on April 1, 2006. Also on April 1, 2006, Starke purchased a Manitowoc Series 600 ice machine, which was installed by Olivier's Air Conditioning and Heating.

         In the early morning hours of April 29, 2006, a fire started in the Manitowoc ice maker, causing damages and necessitating closing of the business while repairs were made. After the fire, and during the repairs process, Flappery and Starke re-negotiated the sale of Mulligan's. Starke ultimately assumed ownership and Mulligan's reopened in January of 2007. The business closed one year later.

         Starke and ARS filed this suit for lost revenue and damages incurred from the date of the fire until Mulligan's reopening in January of 2007. After trial on the merits, the court found that the ice maker was defective and that Manitowoc was liable for the damages caused by the fire. Manitowoc appeals.

         In its appeal, Manitowoc assigns the following as error:

         1. The trial court erred in applying res ipsa loquitur to find a manufacturing defect in the Manitowac ice machine because under Louisiana law:

a) Plaintiffs cannot take advantage of a presumption of defect because direct evidence was spoliated by Plaintiffs' expert before it was examined.
b) The evidence did not sufficiently eliminate other causes of the fire.

         2. The trial court erred in finding a manufacturing defect in the Manitowac ice

Page 737

machine because Plaintiffs did not present evidence to establish that the product deviated from Manitowoc's specifications or performance standards as required by La. Rev. Stat. 9:2800.55.

         3. The trial court erred in awarding video poker revenue (as opposed to lost profits) to Plaintiffs without taking the expenses necessary to generate the revenue into account.

         [14-93 La.App. 5 Cir. 5] 4. The trial court erred in awarding rental payments which Plaintiffs had no legal obligation to pay.

         5. The trial court erred in awarding undocumented building repair expenses which were voluntarily made.

         6. The trial court erred in awarding Starke damages for property (a) Starke did not own at the time of the fire, and (b) for which Starke had previously received reimbursement.

         7. The trial court erred in denying the motion for sanctions because of Plaintiffs' repeated violation of the Court's discovery Orders and testimony at trial established that prior representations regarding the non-existence of responsive documents were patently false.

         CAUSATION

         A bifurcated trial was held with both the issues of liability and damages presented to the judge. After the conclusion of the hearing on liability, the trial court found that plaintiffs had borne their burden of proof.[3]

         To prove causation, plaintiff Starke presented the testimony of George Hero, who was qualified as an expert in electrical engineering and fire origin and causes. Mr. Hero was originally hired by Caitlin Insurance, Mulligan's insurance carrier. Defendant Manitowoc presented the testimony of Robert Russell, who qualified as an expert in origins and causes of fire.

         As stated previously, Starke took over management of Mulligan's on April 1, 2006. On that day, Starke had a brand new Manitowoc ice machine installed. The fire occurred in the early morning hours of April 29, 2006, when the bar was closed. At the end of a long bar, there was an alcove, or a little storage room, that [14-93 La.App. 5 Cir. 6] contained the ice machine and some miscellaneous storage. With the exception of the alcove, the majority of the damage to the premises was caused by heat and smoke, not fire. On first inspection, it was obvious that the source of the heat was around the ice machine. There was no evidence that the floor of the premises had caught fire.

         Mr. Hero testified that he started his investigation by photographing the unit in place. He then called Mr. Olivier, of Olivier's Air Conditioning, Heating and Refrigeration, and they removed the unit from the alcove. They discovered that, based on the pattern of the fire, the origin had to be within the machine. At that point, they ceased examining the machine and called for a Manitowoc representative. Further examination of the premises showed that

Page 738

the building wire was not damaged, and the junction box coming out of the wall was not damaged. The aluminum coil attached to the ice machine was damaged only on the inside of the unit, and not on the backside toward the wall, showing that the heat was within the unit. The pattern of the fire indicated ignition within the ice ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.