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.
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.
THE MANITOWOC COMPANY AND OLIVIER'S AIR CONDITIONING, HEATING AND REFRIGERATION
[Copyrighted Material Omitted]
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.
C. JUAN, ATTORNEY AT LAW, Metairie, Louisiana, COUNSEL FOR
A. BRINDISI, ATTORNEY AT LAW, Kenner, Louisiana, COUNSEL FOR
H. BROWN, III, EUGENE TERK, ATTORNEYS AT LAW, New Orleans,
Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.
composed of Judges Jude G. Gravois, Marc E. Johnson, and
Stephen J. Windhorst.
J. WINDHORST, J.
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"
). 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
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. Located inside Mulligan's were
video poker and amusement devices that were owned and
operated by ARS.
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.
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.
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.
appeal, Manitowoc assigns the following as error:
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.
trial court erred in finding a manufacturing defect in the
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.
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.
La.App. 5 Cir. 5] 4. The trial court erred in awarding rental
payments which Plaintiffs had no legal obligation to pay.
trial court erred in awarding undocumented building repair
expenses which were voluntarily made.
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.
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.
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.
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.
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.
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
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 ...