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Stipp v. Metlife Auto and Home Insurance Agency, Inc.

Court of Appeals of Louisiana, Fifth Circuit

August 30, 2017

DEAN E. STIPP
v.
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

         ON 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.

          Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg.

         REVERSED; JUDGMENT VACATED

         HJL

         RMM

         SJW

          HANS J. LILJEBERG JUDGE.

         In this 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 court's judgment.

         FACTS AND PROCEDURAL HISTORY

         In 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.

         Although 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.

         In July 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 $36, 000.

         On November 6, 2009, Mr. Stipp filed this lawsuit against Benson[1] alleging breach of contract to repair and breach of duty of good faith.[2] 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 vehicle.

         On 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, [3] 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.

         In 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.

         According 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.

         On 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.

         According 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 ...


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