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Vicari v. Window World, Inc.

Court of Appeals of Louisiana, Fifth Circuit

May 28, 2015

PETER G. VICARI AND BARBARA VICARI
v.
WINDOW WORLD, INC. AND WINDOW WORLD OF BATON ROUGE, LLC

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 725-649, DIVISION " C" . HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING.

BLAINE M. HEBERT, ATTORNEY AT LAW, Marrero, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE-2ND APPELLANT.

GRACELLA G. SIMMONS, COLLIN J. LEBLANC, VIRGINIA J. MELIN, ATTORNEYS AT LAW, Baton Rouge, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

MICKEY S. DELAUP, VALERIE E. FONTENOT, RAYMOND P. AUGUSTIN, JR., ATTORNEYS AT LAW, Metairie, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

KAYE N. COURINGTON, VALERIE THENG MATHERNE, JAMES M. MATHERNE, DANIEL R. ESTRADA, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

JAMES R. SILVERSTEIN, DANIEL STANTON, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

KELLY C. BOGART, MEREDITY L. SIMONEAUX, ATTORNEYS AT LAW, Metairie, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert M. Murphy.

OPINION

[14-870 La.App. 5 Cir. 3] ROBERT M. MURPHY, J.

Page 426

Plaintiffs, Peter and Barbara Vicari (collectively, " the Vicaris" ), appeal the trial court's July 28, 2014 judgment granting the motion for summary judgment filed by defendant/third-party plaintiff, Window World of Baton Rouge, LLC (" Window World" ) on the basis of prescription, and dismissing the Vicaris' claims against Window World with prejudice. Window World has filed an appeal of the trial court's June 9, 2014 judgment sustaining the exceptions of peremption filed by third-party defendants, Richard Boomershine, American States Insurance Company, Gulf Coast Installations, LLC, Pauline Hiller and Richard Hiller, pursuant to La. R.S. 9:2772, and dismissing Window World's claims against those third-party defendants with prejudice. In addition, Window World also appeals the trial court's July 28, 2014 judgment granting the motion for partial

Page 427

summary judgment filed by Penn America Insurance Company (" Penn America" ) pursuant to the peremptive period of La. R.S. 9:2772, and dismissing Window World's claims against Penn America and its alleged insureds with prejudice.

For the reasons that follow, we reverse the trial court's July 28, 2014 judgment granting summary judgment in favor of Window World on the basis of [14-870 La.App. 5 Cir. 4]  prescription and dismissing the Vicaris' claims with prejudice. Furthermore, we affirm the trial court's June 9, 2014 judgment sustaining the exceptions of peremption filed by Richard Boomershine, American States Insurance Company, Gulf Coast Installations, LLC, Pauline Hiller and Richard Hiller, and we reverse the trial court's July 28, 2014 judgment dismissing with prejudice Window World's claims against Penn America and its alleged insured, Mike Hildred for the alleged improper repairs in 2010. Accordingly, we remand the matter for further proceedings.

FACTUAL BACKGROUND

On June 3, 2008, the Vicaris entered into a contract with Window World for the purchase and installation of forty-five custom windows for their home, for the price of $15,694 (" the Vicari contract" ). The Vicari contract outlines the pricing for the windows, including the window types and measurements, and provides that " Window World agrees to install windows . . . as noted above . . . for the price quoted on this form." The Vicaris contend that they participated in the selection and decision making process regarding type and design of the windows. The Vicari contract further provides that prior to the installation, Window World will remove forty-five existing aluminum windows from the Vicaris' home. Window World contends that the contract price of $15,694 includes $12,809 for the cost of the windows and $2,885 for the cost of labor.

After the Vicari contract was executed, Window World contends that it ordered the windows from a third-party manufacturer, per the specifications provided in the Vicari contract. Window World then provided independent contractors (" the installers" ), pursuant to pre-existing installation contracts between Window World and the installers, to remove the Vicaris' existing windows and to install the new windows in their home. The window installation [14-870 La.App. 5 Cir. 5] began on or around June 18, 2008 and concluded on or around June 27, 2008. Window World contends that multiple installers were involved in the installation of the windows at the Vicaris' home.

On May 25, 2010, the Vicaris allege that they noticed water damage to their home as a result of water leaking from the windows and defective window sashes, and reported the problem to Window World. Window World contends that it arranged for the Vicaris' windows to be repaired, and that those repairs were completed in August of 2010 by one of the installers, Mike Hildred.

However, the Vicaris allege that approximately two years later, on September 10, 2012, they noticed water leaking from the same windows, as well as from other windows. The Vicaris contend in their petition that they contacted Window World about the problems, but that Window World did not conduct any further repairs. Subsequently, the Vicaris opened the walls of their home and discovered water damage, including wood rot, mold and mildew. The Vicaris contend that the damage was caused by Window World's poor workmanship and improper installation in 2008, and its improper repairs conducted in 2010.

PROCEDURAL HISTORY

On April 8, 2013, the Vicaris filed a petition for damages and breach of contract

Page 428

against Window World, seeking recovery for the alleged damage to their home caused by Window World's improper installation and repair of the windows in 2008 and in 2010, respectively. On September 30, 2013, Window World filed a third-party demand against the installers involved in the installation and repair of the Vicaris' windows and their insurers. In its third-party demand, Window World asserted claims of indemnity and contribution against the installers and their insurers, in the event that Window World is found liable for the alleged improper installation and/or improper repairs.

[14-870 La.App. 5 Cir. 6] Specifically, Window World named the following installers and their insurers as defendants in its third-party demand: (1) Mike Hildred; (2) Richard Hiller; (3) Pauline Hiller; (4) Gulf Coast Installations, LLC; (5) Richard Boomershine; (8) Penn America Insurance Company [insurer of Mike Hildred, Richard Hiller, Pauline Hiller, and Gulf Coast Installations]; and (9) American States Insurance Company[1] [Richard Boomershine's insurer].[2] In its third-party demand, Window World alleged that it entered into separate agreements for the installation of windows with the installers, which provide that the installers will indemnify Window World for any loss or damage arising from their work. Window World further alleged that it is an additional insured under the insurance policies issued to the installers by their insurers.

On April 8, 2014, Richard Boomershine filed an exception of peremption to Window World's third-party demand, on the grounds that all claims asserted against Boomershine were perempted under the five-year peremptive period set forth in La. R.S. 9:2772. Specifically, Boomershine alleged that Window World's claims against him arise out of a construction contract to install windows, and thus, La. R.S. 9:2772 provides that any such claims must be brought within five years after the date the owner has occupied or taken possession of the improvement. Boomershine attached the installation completion certificate issued to the Vicaris, dated June 27, 2008, as well as the Vicaris' responses to request for admission, admitting that they have occupied their home for the past twenty years. When applied to the window installation at issue, Boomershine argued that La. R.S. 9:2772 required Window World to file its claim for indemnity against him within [14-870 La.App. 5 Cir. 7]  five years of the date that the installation was completed and the Vicaris took possession of their home, or by June 27, 2013. Because Window World did not file its third-party demand for indemnity until September 30, 2013, Boomershine asserted that Window World's claims asserted therein were perempted under La. R.S. 9:2772.

Subsequently, Boomershine's insurer, American States, filed its own exception of peremption under La. R.S. 9:2772, adopting Boomershine's previously filed exception. Several weeks later, on June 6, 2014, Richard Hiller, Pauline Hiller, and Gulf Coast Installations also filed an exception of peremption under La. R.S. 9:2772 on the same grounds asserted in Boomershine's exception.

The exceptions of peremption filed by Boomershine, American States, the Hillers and Gulf Coast Installations were all set

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for hearing on June 9, 2014. After considering the law, evidence and arguments of counsel, the trial court sustained the exceptions at the conclusion of the hearing, and dismissed Window World's claims against Boomershine, American States, Richard ...


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