United States District Court, W.D. Louisiana, Lafayette Division
CREIG J. MENARD, ET AL.
ORKIN, LLC d/b/a ORKIN
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE
the Court is the Motion For Partial Summary Judgment on
Plaintiffs' Claim for Emotional Distress Damages filed by
defendant Orkin, LLC (“Orkin”). [Doc. 38]. The
motion is unopposed. For the following reasons, Orkin's
motion is GRANTED, and the plaintiffs' claim for
emotional distress damages is DENIED AND DISMISSED WITH
instant lawsuit seeks to recover damages defendant Orkin for
damages to a residential dwelling due to termites. The
relevant facts and procedural history of this case, as well
as the standard governing summary judgment motions, have been
set forth in detail in this Court's ruling on two other
motions filed by Orkin [Doc. 50]; those facts are
incorporated by extension herein.
allege a claim for emotional distress damages as a result of
Orkin's alleged breach of a termite control contract
between the parties. Plaintiffs' claim for emotional
distress damages is governed by Article 1988 of the Louisiana
Civil Code, which states:
Damages for nonpecuniary loss may be recovered when the
contract, because of its nature, is intended to gratify a
nonpecuniary interest and, because of the circumstances
surrounding the formation or the nonperformance of the
contract, the obligor knew, or should have known, that his
failure to perform would cause that kind of loss.
Regardless of the nature of the contract, these damages may
be recovered also when the obligor intended, through his
failure, to aggrieve the feelings of the obligee.
La. Civ. Code art. 1998 (West 2018).
Young v. Ford Motor Company, Inc., 595 So.2d 1123,
1133 (La. 1992), the Louisiana Supreme Court explained the
difference between pecuniary and non-pecuniary loss in the
context of an automobile purchase, as follows:
Thus, under Article 1998, which is the controlling article
for the type of damages referred to by the redhibition
articles (specifically Article 2545), if it can be
established that the obligee intended-and if the nature of
the contract supports this contention-to gratify a
significant nonpecuniary interest by way of the contract, and
that the obligor either knew or should have known that
failure to perform would cause nonpecuniary loss to the
obligee, then the requirements for recovery of nonpecuniary
damages are satisfied.
Although purchase of a new truck or car may be prompted by
both the pecuniary interest of securing transportation and
the nonpecuniary interest relating to enjoyment, taste, and
personal preference of owning and driving the chosen vehicle,
the nature of the contract is primarily pecuniary (unless
other factors evidence a different conclusion). Contrast the
contract of purchase made in a standard new car sale with a
contract for purchase of an antique car that, while it might
be driven on the streets, represents the obligee's desire
to own, and perhaps to show, a distinctive, unique
automobile. Or, contrast the traditional new car purchase
contract with a contract for purchase of a
specially-designed, custom-built vehicle.
In this case, the nature of the contract does not make it
evident, nor do the facts and circumstances surrounding the
formation of the contract demonstrate that Young purchased
the new pickup truck from Bordelon Motors, Inc. for a
significant nonpecuniary purpose. Although he testified that
he wanted a larger cab area so that he could lie down on
trips if his back started to bother him, that desire seemed
more incidental in nature than that which would constitute a
significant nonpecuniary interest in purchasing the truck.
The rest of his testimony concerned the need to use the truck
in his service station business to haul tires or to transport
customers while their cars were being fixed. Even his plans
for recreational use of the vehicle (i.e., fishing trips)
constituted the pecuniary interest of requiring suitable
transportation to haul his fishing boat.
it is clear that the nature of the contract, as well as the
intentions of the parties in confecting the contract, are
significant factors in determining whether non-pecuniary
damages are recoverable. In Ledbetter v. Homes by Paige,
LLC, 110 So.3d 141 (La.App. 1st Cir.),
writ denied, 90 So.3d 445 (La. 2012), homeowners
sued a general contractor for property damages, arguing they
were entitled to non-pecuniary damages as a result of the
contractor's alleged breach of contract. The jury found
in favor of the homeowners but did not award non-pecuniary
damages. On appeal, the Louisiana Fourth Circuit affirmed,
finding the plaintiffs had put forth no evidence that they
had purchased the home in question for a significant
non-pecuniary purpose. Ledbetter, 110 So.3d at 148
(“. . . although the Ledbetters may have had some
non-pecuniary interest relating to the personal preference of
owning the home at issue, the nature of the contract appears
to be primarily pecuniary.”).
instant case, Orkin argues the plaintiffs are not entitled to
pecuniary damages because they simply inherited the termite
control contract in question and there is no evidence the
contract was “intended to gratify the Menards'
non-pecuniary interests” as the statute requires. Here,
the evidence shows the plaintiffs merely assumed the 1979
termite control contract that was already attached to the
home they purchased. The plaintiffs have not opposed the
instant motion and have set forth no evidence that they
entered into the contact to “gratify a significant
nonpecuniary interest.” Under these circumstances, the
Court finds the plaintiffs are not entitled to damages for
emotional distress because of Orkin's alleged breach of
the termite control contract.
the foregoing, the undersigned finds the plaintiffs'
claim for emotional distress damages is not supported by the
law and facts in this case, and ...