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Jackson v. Lowe's Home Centers, L.L.C.

Court of Appeals of Louisiana, Second Circuit

February 28, 2018

WINNIFRED H. JACKSON Plaintiff-Appellant
v.
LOWE'S HOME CENTERS, L.L.C., ET AL. Defendant-Appellees

         Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 147, 324 Honorable Jeff R. Thompson, Judge

          PIERRE & PIERRE, LLC By: J. Rodney Pierre Counsel for Appellant

          TAYLOR, WELLONS, POLITZ & DUHE, APLC By: Chris W. Caswell D. Scott Rainwater Counsel for Appellees

          Before MOORE, PITMAN, and GARRETT, JJ.

          MOORE, JUDGE.

         Winnifred Jackson appeals a partial summary judgment that dismissed her claim for lost wages and profits arising from the defective installation of a refrigerator. For the reasons expressed, we affirm.

         FACTUAL BACKGROUND

         Ms. Jackson, an attorney and the proprietor of Good Samaritan Funeral Home, bought an LG refrigerator from Lowe's Home Center on Airline Drive in Bossier City in June 2014. Lowe's employees delivered it to her house, in Oak Alley Subdivision in Bossier City, on June 13. According to her petition, Ms. Jackson immediately discovered during the installation that it was not the counter-depth unit that she expected.[1] That evening, she went back to Lowe's and bought another LG fridge, one that would fit properly, and Lowe's employees delivered it on June 14. When they removed the first fridge, Ms. Jackson saw a pool of water on the floor under it and some dampness on the walls around it. She phoned the store manager, who came out to inspect, and said the moisture was condensation. The employees wiped up the puddle and installed the second fridge.

         A few days later, however, Ms. Jackson discovered several planks of the reclaimed wood flooring in her kitchen and family room were warped. She called a plumber, who inspected and told her that both fridges had been improperly installed - the icemaker line was not correctly attached to the water line. Ms. Jackson then phoned Lowe's manager, who sent Custard Insurance Adjusters to the house; Custard confirmed that the damage resulted from faulty installation, and hired DKI, an emergency repair service, to extract the water from the wood floors. According to Ms. Jackson's petition, the extractors were placed in the kitchen and family room, making it impossible for her to use either room. In addition, the machines made such an "unbearable" noise that she had to vacate the house, incurring hotel and meal expenses.

         After nine days of extraction, Custard decided the floors could not be repaired. According to Ms. Jackson's petition, Lowe's did not answer her informal demands to pay the cost of removal and replacement.

         PROCEDURAL HISTORY

         Ms. Jackson filed this suit, in proper person, against Lowe's Home Centers, in June 2015. She also named "Insurance Company A" as a defendant, but never joined any insurer. In addition to demanding costs of replacement, moving and storage, and cleaning, she alleged that because she could not stay in the house, she incurred costs for hotels and meals. She also demanded damages for mental anguish and attorney fees.

         Lowe's filed an exception of no cause of action as to the demand for penalties and attorney fees: because Lowe's was not an insurer, it could not be liable for bad-faith adjustment of claims, La. R.S. 22:1892 and 1973.

         Lowe's then filed a motion for partial summary judgment as to the demand for lost wages and mental anguish. In support, it filed portions of Ms. Jackson's deposition in which she testified that during the four months it took to replace the floor, she could not stay in the house, so she took a 28-day trip to Chicago, followed by short trips to Turks & Caicos, Miami, San Francisco and Los Angeles, San Antonio, and, finally, to Beverly Hills (for a "getaway weekend"); she felt that these trips caused her to lose between $95, 000 and $120, 000 in wages and profits. Lowe's argued that no reported case had ever approved lost wages as an element of damages for a property damage claim without bodily injury, and thus the award was not legally recognized. However, even if it were, Ms. Jackson could not meet the high standard of proving lost wages: "a plaintiff must prove that he would have been earning wages but for the accident in question, " ...


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