United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT.
the Court are dueling motions for partial summary judgment.
Defendant, JELD-WEN, INC., filed its Motion for
Partial Summary Judgment (Doc. 14) seeking dismissal
of Plaintiffs' redhibition claim based on prescription.
Plaintiffs, Ronald and Kathleen Leo, request that the Court
grant their Motion for Partial Summary Judgment (Doc.
18) to declare that their JELD-WEN windows contain a
redhibitory defect as a matter of law. For the reasons that
follow, Defendant's motion is DENIED and
Plaintiffs' motion is DENIED.
2007 and 2008, Precision Construction Group ("PCG")
built Plaintiffs' home. (Doc. 1-2 at ¶ 3). In 2007,
Plaintiffs purchased approximately fifty JELD-WEN windows for
installation into their new home. (Doc. 2*1 at p. 2). Upon
moving into the home in December 2008, Plaintiffs noticed
water leaking into the home. (Doc. 1-2 at ¶¶ 7-8).
Plaintiffs reported the leaks to PCG. (Doc. 2-1 at p. 2). In
response, PCG had a subcontractor perform additional
waterproofing and caulking on Plaintiffs' home. (Doc.
17-1 at pp. 1-2, ll. 22-25, 1-25). Still, water continued to
leak into the home. (Doc. 17-2 at p. 2). Plaintiffs hired
American Leak Detection ("ALD") to inspect the home
in September of 2012. (Id.). ALD identified numerous
potential sources of the leak, including a potential roof
flashing issue and insufficient caulking around the windows.
(Id.; Doc. 17-3 at pp. 1-2).
November 7, 2012, Plaintiffs contacted their general
contractor in an email that stated that they "had two
leak detection companies out here to check, but no one is
sure where the leak is." (Doc. 14-4 at p. 2). According
to the email, "[o]ne guy thought it was the seal around
the windows." (Id.) The general contractor
responded in an email saying that he believed they had
"found the majority of the causes" and proposed a
set of actions including sealing the flashing, caulking the
windows, applying sealer, and inspecting the windows. (Doc.
17-4 at p. 2). On November 14, 2012, another subcontractor
performed an inspection of the windows. (Id.; Doc.
17-5 at p. 1, ll. 2-24). Reportedly, the subcontractor
noticed potential water intrusion on one window. (Doc. 17-7
at p. 1 ll. 3-8). Based on these inspections, PCG issued a
quote to make repairs that exceeded $50, 000, dated February
20, 2013. (Doc. 17-8 at p. 2).
March 18, 2013, Kathleen Leo filled out a JELD-WEN Customer
Care online form. (Doc. 14-5 at p. 3). Kathleen Leo wrote,
"[o]ur windows are leaking. There is evidence that water
is getting through the seals, because when the window is
opened we can see where the wood inside the window frame is
discolored." (Id.). On July 23, 2013, Kathleen
Leo once again called JELD-WEN Customer Care to report a
"leak around the window." (Id. at p. 7).
In response to the second phone call, Defendant suggested
that Plaintiffs contact a JELD-WEN authorized service
the record is not clear on the exact time period, sometime
after PCG's repair quote, Ronald Leo contacted his
homeowner's insurance. (Doc. 17-10 at p. 1, ll. 5-20).
The insurer denied his claim because it reportedly told him
the issues with his home "were all due to construction
error." (Id. at pp. 1-2, ll. 22-25, 1-11).
November 8, 2013, Plaintiffs sued PCG, alleging that the
causes of the water intrusion were construction defects and
improper installation of the windows. (Doc. 14-6 at p. 1).
That lawsuit was subsequently removed to arbitration. (Doc.
14-7 at p. 1). Plaintiffs' arbitration demand stated that
the "windows were improperly installed and inadequately
waterproofed, including but not limited to inadequate
flashing, caulking, and sealing. " (Id. at
¶¶ 95-98). Arbitration continued until July 2015,
when Plaintiffs settled their claims against PCG. (Doc. 14-1
at p. 5).
the close of arbitration, Kathleen Leo rented a thermal
imaging camera on July 15, 2015. (Doc. 14-8 at p. 4).
Although Kathleen Leo was not trained in the use of the
camera, she pointed it at the windows to see if she could
spot any problems. (Doc. 14-3 at p. 8, ll. 4-18). During this
time, water continued to penetrate the house.
September 8, 2015, Plaintiffs hired Charles Dixon to
remediate alleged construction defects in the windows. (Doc.
17-11 at p. 1, ll. 2-7). After repairing what Dixon thought
were improper caulking or flashing issues and applying a
waterproof sealant on the exterior of the home, (Doc. 17-12
at pp. 1-2, ll. 7-25, 1-7), Dixon sprayed the windows with a
water hose in an "unofficial test." (Doc. 17-3 at
p. 4, ll. 1-6). When Dixon sprayed the windows with water, he
noticed that water was still coming in through the windows.
Dixon's report that water was still coming in through the
windows, Plaintiffs contacted an authorized JELD-WEN service
provider, Charles Doucet. (Id. at p. 4, ll. 7-9).
Doucet inspected the windows and concluded that the frame
weather stripping in the windows, which is installed at the
factory, "were a little short" and "didn't
quite meet up like they should." (Doc. 17-14 at p. 1,
ll. 12-21). Reportedly, this alleged defect-which Doucet
claimed would lead to water intrusion-was present throughout
the house. (Id. at pp. 1-2, ll. 19-25, 1-2).
filed the instant suit in Louisiana state court on August 30,
2016. (Doc. 1-1 at p. 1). Defendant timely removed the suit
to this Court on the basis of diversity jurisdiction, 28
U.S.C. § 13332. (Doc. 1).
to the Federal Rules of Civil Procedure, "[t]he court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). In determining whether the movant is
entitled to summary judgment, the court views the facts in
the light most favorable to the non-movant and draws all