DEAN E. STIPP
METLIFE AUTO AND HOME INSURANCE AGENCY, INC. AND/OR METLIFE AUTO AND HOME, METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, MERCEDES-BENZ USA, LLC, BENSON MOTOR COMPANY D/B/A MERCEDES-BENZ OF NEW ORLEANS AND ABC INSURANCE COMPANY
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 679-953, DIVISION
"G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, DEAN E. STIPP Corina E.
Salazar Cesar R. Burgos Robert J. Daigre Gabriel O. Mondino
George M. McGregor.
COUNSEL FOR DEFENDANT/APPELLANT, BENSON MOTOR COMPANY D/B/A
MERCEDES BENZ OF NEW ORLEANS AND ON BEHALF OR ITS TRADE NAME,
D/B/A MERCEDES BENZ OF NEW ORLEANS Leonard A. Davis Charles
M. King Charles G. Justice, III.
composed of Judges Robert M. Murphy, Stephen J. Windhorst,
and Hans J. Liljeberg.
J. LILJEBERG JUDGE.
breach of contract case arising from the repair of a motor
vehicle after a collision, defendant appeals the trial
court's judgment rendered in favor of plaintiff. For the
following reasons, we reverse and vacate the trial
AND PROCEDURAL HISTORY
March of 2008, plaintiff, Dean Stipp, purchased a 2008
Mercedes Benz SL550 ("the SL550") from defendant,
Benson Motor Company d/b/a Mercedes Benz of New Orleans
("Benson"), for approximately $91, 000. Several
months later, on November 9, 2008, Mr. Stipp was involved in
a high impact collision with another vehicle, causing
substantial damage to the SL550. On November 13, 2008, the
SL550 was towed to Benson for repairs.
Mr. Stipp's insurer, Metropolitan Property and Casualty
Insurance Company ("Metropolitan"), prepared a
repair estimate after the collision, Benson discovered
additional damage during the repair process. On March 2,
2009, Benson requested a supplemental from Metropolitan to
complete the repairs, and Metropolitan subsequently approved
the request. On June 30, 2009, Benson notified Mr. Stipp that
the repairs were complete.
of 2009, when Mr. Stipp went to Benson to pick up his
vehicle, he noticed some scratches on the body of the car and
a scratch on the navigation screen located on the dashboard.
Mr. Stipp left the SL550 at Benson for them to repair the
scratches. Benson requested a second supplement from Mr.
Stipp's insurer in order to repair the navigation screen.
On August 20, 2009, Benson informed Mr. Stipp that the
vehicle was ready, and he picked it up on August 26, 2009.
The total cost of the repairs for the SL550 was approximately
November 6, 2009, Mr. Stipp filed this lawsuit against
Benson alleging breach of contract to repair and
breach of duty of good faith. In his petition, Mr. Stipp
asserted that Benson failed to repair the SL550 within a
reasonable time and failed to repair it to his satisfaction
or to its pre-accident condition. He alleged that in addition
to the diminished value of the car due to its defective
condition, he also sustained damages due to the repair delay.
Mr. Stipp asserted that the damages due to the repair delay
included the insurance premiums and car notes he paid while
the car was being repaired and was unusable, as well as
damages for inconvenience and loss of enjoyment of the
November 18, 2009, after filing this lawsuit, Mr. Stipp had
the SL550 towed to Benson with complaints regarding the
finish on the passenger door, operation of the convertible
top, warning lights on the dashboard, and the vehicle's
electrical system. Benson repaired the finish on the
passenger door, replaced the starter battery,  found the car to
be fully operational, and notified Mr. Stipp that the vehicle
was ready on November 19, 2009. He picked up the SL550 on
December 11, 2009.
connection with this litigation, Mr. Stipp was deposed on
February 15, 2011. In his deposition, Mr. Stipp testified
that he believes the SL550 cannot be fixed and will never be
the same as it was before the accident. He stated that it
drives a little different and does not feel the same, the top
creaks, and the trunk does not close properly. After this
deposition, the SL550 was towed to Benson on July 6, 2011,
for an inspection and to allow Benson to make any appropriate
repairs. During the inspection, Benson replaced the system
battery and the hydraulic pump that operates the roll bar for
the convertible top. Benson also found that the trunk did not
close properly, as alleged by Mr. Stipp, because the
owner's manual was in the trunk in a position that
prevented it from closing properly. The SL550 was towed back
to Mr. Stipp on August 2, 2011.
to Mr. Stipp, he continued to experience problems with the
SL550. Approximately three years after Benson last inspected
the vehicle, Mr. Stipp had the SL550 inspected by an
automobile mechanic, Ryan Sterling, in August of 2014. Mr.
Stipp gave Mr. Sterling a list of problems he was
experiencing and asked him to inspect and confirm them, but
not to fix them.
August 29, 2016, a bench trial was held in this matter. At
trial, Dean Stipp testified that he purchased the SL550 as a
pleasure vehicle to be used on "nice days." He did
not intend to use this vehicle for everyday driving. Mr.
Stipp testified regarding the problems he experienced with
the SL550 after the collision and subsequent repairs by
Benson. He stated that the car and the brakes felt different
after the repairs and the roll bar for the convertible top
had problems. He also testified regarding battery issues,
stating that the battery would be drained if the car sat for
two weeks or so without being driven, and warning lights
would come on the dashboard. Mr. Stipp testified that prior
to the accident, he was able to leave the car without driving
it for a month and the battery would still work properly. He
stated that he contacted Benson about the battery problem and
was told to drive the car around the block every two weeks.
to Mr. Stipp, while the car was at Benson for repairs, he
knew he had rental insurance but he did not ask for a rental
car because he had another vehicle to use. He also testified
that he contacted John Stemke, the body shop manager at
Benson, about once a month to check on the repair status and
Mr. Stemke would typically say the repairs were delayed
because they found more "twisted stuff." Mr. Stipp
testified that he did not consider selling or trading the
SL550 to Benson; he just wanted the vehicle fixed. At trial,
he did not recall receiving a letter in 2012 from Benson
indicating that Benson was willing to ...