Summary
holding that comparative fault applies in redhibition claim and that defendants should split the amount of attorney fees due by the percentage of fault attributable to each; reversing magistrate judge's finding to the contrary
Summary of this case from Hollybrook Cottonseed Processing, LLC v. Carver, Inc.Opinion
CIVIL ACTION NO. 03-2027, SECTION "M" (2).
February 29, 2008
ORDER
I have considered the record, the applicable law, the Findings and Recommendation of the United States Magistrate Judge, and the objections to the Magistrate Judge's Findings and Recommendation. I have also considered the Motion of Chevron U.S.A., Inc. for Leave of Court to File Additional Statement of Attorney's Fees and Costs. Record Doc. No. 530.
Chevron seeks to hold two defendants, OFCO Industrial Corp. f/k/a Tech OFCO or Oriental Fastener Industry Co., Ltd. and T-3 Custom Coating Applicators, Inc. f/k/a LSS-Lone Star-Houston, Inc. (Tech OFCO and Lone Star) solidarily liable for any attorney's fees award. Chevron argues that redhibition awards are solidary under the Louisiana's redhibition articles, and that the law in this regard was not affected by the 1996 comparative fault revisions. In opposition, Tech OFCO and Lone Star argue that each defendant should be assessed divisibly for its share of the fee award in proportion to the percentage of comparative fault assigned to it by the jury. The Magistrate Judge recommended that these defendants be held solidarily liable to plaintiff.
This court delayed action on the Magistrate Judge's Report and Recommendation awaiting the Louisiana Supreme Court's opinion inAucoin v. Southern Quality Homes, LLC, 953 So.2d 856 (La.App. 3d Cir. 2007), writ granted, 959 So. 2d 916 (La. 2007).
The Louisiana Supreme Court handed down its ruling on February 26, 2008, and this Court finds that Aucoin is not controlling insofar as this matter is concerned.
Aucoin v. Southern Quality Homes, LLC, ___ So. 2d ___ 2008 WL 498668 (La), 2007-1014 (La. 2/26/08).
In Aucoin the Louisiana Supreme Court acknowledged the Louisiana Courts of Appeal have split on the issue of whether La.C.C. arts. 2323 and 2324 apply to abolish solidary liability in redhibition cases, but found as follows: "Thus, whether the manufacturer is solidarily liable with the seller for redhibitory defects is immaterial in this case. . . ." See Id. FN12, p. 7.
Therefore, we reaffirm our footnoted impression in our Order of September 12, 2007, which is consistent with Petroleum Rental Tools, Inc. v. Hal Oil Gas, Co., Inc., 95,1820 (La.App. 1 Cir. 8/22/97), 701 So.2d 213, writ dismissed, 97-3088 (La. 2/10/98), 706 So.2d 982; and Hampton v. Cappaert Manufactured Housing, Inc., 36,773 (La.App. 2 Cir. 1/29/03), 839 So.2d 363 (cited inAucoin, FN12, p. 7) to the effect that the two manufacturers should split the amount of attorney's fees due by the percentage of fault the jury attributed to each. Record Doc. No. 484, p. 2 n. 1. ACCORDINGLY, IT IS ORDERED that Chevron U.S.A. Inc.'s Motion for Attorney's Fees and Reasonable Taxable Costs, Record Doc. No. 502, is GRANTED in PART as follows:
The total amount of attorney's fees is $431,906.63, as recommended by the Magistrate Judge. However, Tech OFCO is liable only for 20% of the amount, or $86,381.33, and Lone Star is liable only for 35% of the amount, or $151,167.32.
IT IS FURTHER ORDERED that Chevron U.S.A. Inc.'s motion for nontaxable costs is DENIED. IT IS FURTHER ORDERED that Chevron U.S.A. Inc.'s Motion for Leave of Court to File Additional Statement of Attorney's Fees and Costs, Record Doc. No. 530, is DENIED, as untimely, as it was not presented to the Magistrate Judge within the deadline he set for briefing, and the fees and costs recommended by the Magistrate Judge are ample under the circumstances presented in this case. See Linoski v. Fleetwood Homes, 873 So. 2d 886, 888 (La.App. 2d Cir. 2004).