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Milazzo v. Harvey

Court of Appeals of Louisiana, Second Circuit

January 10, 2018

GAITANO MILAZZO, ET AL Plaintiffs-Appellants

         Appealed from the Monroe City Court for the Parish of Ouachita, Louisiana Trial Court No. 2016CV01182 Honorable Aisha S. Clark, Judge

          ANTHONY J. BRUSCATO Counsel for Appellants.

          DAVENPORT, FILES & KELLY, LLP Martin Shane Craighead Counsel for Appellee.

          Before WILLIAMS, GARRETT, and BLEICH (Ad Hoc), JJ.

          BLEICH, J. (Ad Hoc).

         This action arises as the result of personal property damage, and other contractual issues, caused when plaintiffs' leased residence flooded. Plaintiffs appeal a summary judgment granted in favor of the defendant landlord. Finding that material issues of fact remain, we reverse and remand.


         On December 29, 2015, Gaitano Milazzo leased an unfurnished residence from Douglas Randall Harvey ("Harvey"), the owner of the house located on Auburn Avenue in Monroe, Louisiana. The lease was for a period of two years, beginning January 3, 2016. Milazzo, his wife Pamela, and members of his immediate and extended family (collectively "Milazzo"), also resided in the residence.[1] On the evening of March 8, 2016, rain began to fall in the Monroe area, and in the early morning hours of March 9, 2016, the rental house experienced flooding that caused Milazzo to notify Harvey and immediately evacuate. By 7:00 a.m., Harvey visited the house when the rain subsided and the flood waters had receded, to allegedly photograph damage caused to the residence by the flooding. The rain began to fall again and continued for the following two days. Eventually the house flooded a second time with approximately 11 inches of rain. The total four-day rain event caused historic flooding in the Monroe area, known as the "thousand year flood."

         On April 14, 2016, Milazzo filed suit against Harvey and his public liability insurer, Shelter Mutual Insurance Company ("Shelter"), [2] seeking personal property loss damages on the grounds that Harvey breached the lessor's warranties of habitability and peaceful possession by failing to disclose that the residence was flood prone. Milazzo also raised claims of breach of the lease obligation by Harvey for his unauthorized entry into the home to take photographs, Harvey's bad faith for failure to disclose the defects at the time of leasing and unfair trade practices. Milazzo sought refund of all payments made in connection with the residence, compensation for out-of-pocket expenses and for loss of use and time, inconvenience, aggravation, mental distress and attorney fees.

         On September 22, 2016, Harvey and Shelter moved for summary judgment on the grounds that Milazzo's damage was caused by an act of God or force majeure (the "thousand year flood") which precluded any recovery. Harvey conceded that an issue of fact remained as to whether Milazzo should have been informed of previous flooding claims made in connection with the house, but argued that this fact was not material because the historic flood caused Milazzo's damage. Several documents were submitted by Harvey in support of summary judgment. Those included the affidavit of Archie Neal Brown, Director of the Ouachita Parish Office of Homeland Security and Emergency Preparedness at the time of the flooding event. Brown attested to the fact that approximately 5, 250 structures in Ouachita Parish, including residences and businesses, sustained water intrusion and/or flooding during the flood events of March 8-11, 2016. Brown averred that many of the structures were not in flood zones and that much of the area would not have been adversely affected by a one hundred year flood event.

         Certified copies of four reports generated from the United States Department of Commerce, National Oceanic & Atmospheric Administration, showing a total four-day rainfall amount of 20.67 inches at the Monroe Regional Airport, were submitted in support of summary judgment. Those documents confirm that a little more than six inches of rain fell at the airport from 6:00 p.m. on March 8, 2016, until 1:00 a.m. on March 9, 2016, and that by 2:00 a.m., that amount increased to more than seven inches.

         Harvey also submitted portions of the depositions of Gaitano and Pamela Milazzo which confirmed that on March 8, 2016, at approximately 10:00 p.m., there was no water in the house. By 1:30 a.m., the following morning, however, water was above foot level in the residence. At some point prior to that time, Milazzo's daughter discovered water in the kitchen which she attributed to dishwasher overflow. Gaitano Milazzo returned to the residence at approximately 10:00 a.m. the following morning to discover eight to ten inches of rain in the house and his furniture "destroyed."

         The portion of Harvey's deposition offered in support of summary judgment confirmed that he visited the house at 7:00 a.m. on March 9, 2016, when the water had receded, but the floors remained wet. According to Harvey, 11 inches of water eventually invaded the house a second time.

         Harvey's affidavit was also submitted and showed he purchased the home in December of 2014 and lived in it for 12 months. Harvey claimed that the extent of his direct knowledge regarding any water intrusion events included information he received in connection with the house closing, when he was provided a flood loss history showing "prior flood claims" in September 1978, May 1989 and April 27, 2011. A copy of the "National Flood Insurance Program Property Loss History, " documenting the prior flood claims, was referenced and attached to ...

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