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Putman v. Costello

Court of Appeals of Louisiana, Second Circuit

November 20, 2019

NATHAN PUTMAN, PAMELA PUTMAN, JIMMY PUTMAN, AND KYLE JONES Plaintiffs-Appellees
v.
SCOTT DALTON COSTELLO AND SHELTER MUTUAL INSURANCE COMPANY Defendant-Appellant

          Appealed from the Fifth Judicial District Court for the Parish of West Carroll, Louisiana Trial Court No. 31, 171 Honorable John Clay Hamilton, Judge

          DAVID J. THOMAS Counsel for Appellant, Scott Dalton Costello

          COOK, YANCEY, KING, & GALLOWAY By: Gregg A. Wilkes Jason B. Nichols David L. Wilkes Counsel for Appellee, Shelter Mutual Insurance Company

          MICHAEL J. BREAUX and - FISHER INJURY LAWYERS By: Bryan D. Fisher Chris J. Day Counsel for Appellees, Nathan Putman and Pamela Putman

          Before MOORE, STEPHENS, and McCALLUM, JJ.

          STEPHENS, J.

         Scott Dalton Costello appeals a judgment by the Fifth Judicial District Court, West Carroll Parish, Louisiana, in favor of Nathan Putman, defendant-in-reconvention, granting his motion for summary judgment. For the following reasons, we affirm the trial court's judgment.

         FACTS

         Scott Costello is the owner of Costello's Racing & Adapters, Inc., which performs restoration and modification of motor vehicles-commonly referred to in the industry as "restomod" work. A restomod of a vehicle involves taking an older model vehicle and giving it the amenities of a newer model vehicle, which might include faster and lighter engines, air-conditioning, and/or brakes. In that vein, Nathan Putman owned a 1955 Chevrolet Bel Air, which he took to Costello for a restomod seeking to acquire more horsepower for the vehicle.

         As the final step of Costello's restomod work, the men transported the vehicle to Arkansas to be "dyno-tested"-a calibration of the engine and transmission to ensure the systems were working efficiently together. During the dyno-test, Costello determined the car had sufficient power and told Putman, "It's making an awful lot of power. I think we should quit here." According to Costello's deposition transcript, Putman responded, "Okay. I'm good with it." They took the car back to Costello's workshop for some additional fine-tuning. The record shows at that point and after test driving the vehicle several times, Costello became concerned the vehicle's engine was too powerful for the suspension and tires. He characterized the vehicle as "dangerous": upon acceleration, the vehicle would lose rear-wheel traction, causing a lack of control. Advising Putman there were control issues with the car, he stated, "You better watch this car, it will get sideways at 70 mph," and Putman agreed to make a modification to the tire rims.

         After Costello performed additional work on the vehicle, he called Putman to pick it up, and Costello suggested the men take a test drive together. Costello told Putman the vehicle was "ready," and with Costello at the wheel and Putman in the front passenger's seat (not wearing a seatbelt), the two men took to the road-La. Hwy. 585 in West Carroll Parish, Louisiana. Prior to that test drive, Costello had driven the vehicle only on an airstrip on his property. While on the test drive, Costello accelerated to a high rate of speed, the back wheels lost traction, and the vehicle spun out of control and crashed. Both men were thrown from the vehicle and severely injured.

         Putman filed suit naming Costello and Shelter Mutual Insurance Company ("Shelter") as defendants, which claims are still pending. He claimed that his injuries were caused exclusively by the negligence and fault of Costello. Additionally, Pamela Putman was a named plaintiff, claiming loss of consortium, service, and society of her husband.[1]

         In March 2018, Costello filed a reconventional demand against Putman and Shelter and alleged:

[Costello] performed extensive work on the 1955 Chevy Bel Air, including but not limited to installing a 6.2 liter LS3 engine with an edlebrock super charger. [Costello] advised Mr. Putman that the car posed an unreasonable risk of danger, but Mr. Putman ignored [Costello]'s warning. ...

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