PHILIP A. FRANCO
MERCEDES-BENZ USA, LLC
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 767-659, DIVISION
"M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, PHILIP A. FRANCO
COUNSEL FOR DEFENDANT/APPELLEE, MERCEDES-BENZ USA, LLC Colvin
G. Norwood, Jr. Gary G. Hebert
composed of Judges Fredericka Homberg Wicker, Robert A.
Chaisson, and Stephen J. Windhorst
A. CHAISSON JUDGE
case arising out of a petition for redhibition filed by the
purchaser of an allegedly defective automobile, Philip Franco
appeals a May 9, 2017 judgment of the trial court sustaining
a peremptory exception of no cause of action filed by
Mercedes-Benz USA, LLC ("MBUSA"), which dismissed
Mr. Franco's claims with prejudice. For the following
reasons, we reverse the judgment of the trial court and
remand the case for further proceedings.
AND PROCEDURAL HISTORY
December 22, 2016, Mr. Franco filed a petition of redhibition
in which he set forth the following allegations:
January 22, 2013, he purchased a 2010 Mercedes-Benz GL450 SUV
manufactured and distributed by MBUSA for $47, 500 plus
taxes, license fees and other charges, as well as an extended
2016, Mr. Franco received a Safety Recall letter from MBUSA
advising him of a potential defect in the driver side front
airbag of the vehicle which could result in metal fragments
striking the driver or other occupants, possibly causing
serious injury or death. The notice further advised that
there was no current suitable replacement available to remedy
the defect, but that when a replacement did become available,
it would be provided to Mr. Franco at no cost to him.
response to this safety recall notice, Mr. Franco sent a
letter to MBUSA demanding either the use of a loaner vehicle
until the defect was eliminated or repurchase of the vehicle.
MBUSA denied Mr. Franco's demands by phone.
petition further alleged the defect in the driver side airbag
constitutes a redhibitory defect pursuant to La. C.C. art.
2520 in that it renders use of the vehicle either useless or
so inconvenient that it must be presumed that Mr. Franco
would not have bought it had he known of the defect.
Additionally, Mr. Franco alleged that MBUSA, as a
manufacturer of the vehicle, is deemed to know the vehicle
has a redhibitory defect. Mr. Franco sought to recover the
total purchase price paid for the vehicle as well as all
other damages suffered, including emotional distress.
response to Mr. Franco's petition, MBUSA filed a
peremptory exception of no cause of action in which it argued
that Mr. Franco's claims are moot because MBUSA is
already required by federal statute to replace the defective
airbag at no cost pursuant to a nationwide recall of the
defective airbags. MBUSA additionally argued that the claims
are subject to dismissal because they are preempted by the
National Highway Transportation Safety Act (NHTSA), which
provides exclusive remedies for Mr. Franco's
claims. Finally, MBUSA argued that Mr.
Franco's petition is deficient because it fails to state
the existence of an actual defect in his
9, 2017, following a hearing on the exception, the trial
court issued judgment sustaining MBUSA's exception of no
cause of action. In its written reasons for judgment, the
trial court found that MBUSA was unaware of the defect at the
time of the sale and that Mr. Franco had no cause of action
unless and until the replacement efforts ...