Opinion
CIVIL ACTION NO. 01-2171 C/W 02-974 SECTION "F"
January 22, 2003
ORDER AND REASONS
Before the Court is plaintiff New Orleans Assets, L.L.C.'s Motion for Summary Judgment as to Redhibition Liability. For the following reasons, the motion is DENIED.
I.
NOA owns the building leased to the FBI for its New Orleans Regional Headquarters. The building was constructed according to specifications furnished by the FBI through the U.S. General Services Administration. The building's vinyl wall covering, manufactured by OMNOVA Solutions, Inc., was selected by representatives from NOA, GSA, the general contractor Carl E. Woodward, L.L.C., and Atha Architecture. After construction, the building was beset by mildew and leaks. NOA sued numerous insurers, contractors, and product manufacturers, including OMNOVA. NOA's suit against OMNOVA charges redhibition, fraud, and negligent misrepresentation. NOA now moves for partial summary judgment on its redhibition claim.
II.
Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine issue of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). A genuine issue of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party."Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50. Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents do not qualify as competent opposing evidence. See Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). Finally, in evaluating the summary judgment motion, the court must read the facts in the light most favorable to the non-moving party. See Anderson, 477 U.S. at 255.
III.
Under Louisiana law, sellers impliedly warrant buyers against redhibitory defects, or vices, in the thing sold. La. Civil Code art. 2520. Moreover, sellers are deemed to know that the thing they sell has redhibitory defects when they are also the manufacturer of that thing. La. Civil Code art. 2545. Liability in redhibition occurs when: 1) the seller sold a thing to the plaintiff and it is either absolutely useless for its intended purpose or its use is so inconvenient or imperfect that, judged by the reasonable person standard, had the plaintiff known of the defect, he would never have purchased it; 2) the thing contained a non-apparent defect at time of sale; and 3) the seller was given an opportunity to repair the defect. See, e.g., Ford Motor Credit v. Laing, 705 So.2d 1283, 1285 (La.App. 2 Cir. 1998); Jackson v. Slidell Nissan, 693 So.2d 1257, 1262 (La.App. 1 Cir. 1997).
OMNOVA first contends that it is not liable in redhibition because the GSA and NOA specified that vinyl wall covering should be installed in the FBI building. Louisiana courts have held that redhibition liability does not exist when a seller provides a product in accordance with a purchaser's plans and specifications. Louisiana Indus. v. Bogator. Inc., 605 So.2d 213, 217 (La.App. 2 Cir. 1992); see also Conmaco. Inc. v. Southern Ocean Corp., 581 So.2d 365, 371 (La.App. 4 Cir. 1991). The cases adopting the specification defense, however, can be easily distinguished. In Conmaco, the specification defense applied because the defendant tailored the construction of a 500-ton crane block to the plaintiffs plans. Id. at 366. In Louisiana Indus., the defense theory prevailed because the plaintiff had requested that the defendant alter its standard manufacturing processes. Louisiana Indus., 605 So.2d at 217. OMNOVA, however, did not manufacture or design the wall covering according to NOA or GSA's specifications; rather, it manufactured a product, which subsequently appeared to meet GSA and NOA's specifications. Neither GSA or NOA attempted to alter, or manipulate, OMNOVA's manufacturing process.
To procure a new facility in New Orleans for the FBI, the GSA published a Solicitation for Offers. Through a bidding process, plaintiff, NOA, was awarded the contract for this facility. As part of the SF0, interior finishes were specified by the GSA. That portion dealing with wall coverings states that "prior to occupancy, partitioned offices and open office areas shall be covered with vinyl or polyolefin commercial wall covering weighing not less than 13 ounces per square yard as specified in FS CCC-W-408C or equivalent. The quality of finish shall be approved by the Contracting Officer."
The court stated, "the reasoning behind L.S.A. R.S. 9:2771, that the contractor is absolved of responsibility if the owner's plans and specifications are followed, is equally persuasive in this redhibition claim. Since there is no dispute that (plaintiffs] specifications were followed when [defendant] constructed the block no liability should be imposed upon the seller because of the block's unsatisfactory performance."
Moreover, the wholesale adoption of the specification defense would undermine the effectiveness of Louisiana's redhibition articles. For instance, redhibition claims would be disposed of by a plaintiffs assertion that it had merely "filled the customer's order." Louisiana's doctrine of implied warranty demands far more of sellers. Thus, OMNOVA's specification defense is without merit.
OMNOVA adds that it is not liable in redhibition because its wall covering did not contain a non-apparent defect. The Louisiana redhibition articles require that a defect be non-apparent at the time of sale. La. Civ. Code art. 2521. Under the law, a buyer has a duty to make an inspection that is reasonable in light of all the circumstances surrounding the sale. See, e.g., Pursell v. Kelly, 152 So.2d 36, 41 (La. 1963); Crowe v. Laurie, 729 So.2d 703, 707-08 (La.App. 1 Cir. 1999). Whether an inspection is reasonable depends on the facts of each case and includes such factors as the knowledge and expertise of the buyer, the opportunity for inspection, and the assurances made by the seller. See Merlin v. Fuselier Const., Inc., 789 So.2d 710, 715 (La.App. S Cir. 2001); see also LeMaire v. Breaux, 788 So.2d 498, 501 (La.App. 5 Cir. 2001) (requiring the buyer to conduct further investigation "as would be conducted by a reasonably prudent buyer acting under similar circumstances").
OMNOVA has produced evidence that the buyer, NOA, was highly sophisticated, and that it had extensive time to inspect the vinyl wall covering. OMNOVA's wall covering was reviewed and approved by representatives of NOA, GSA, CEW, and Atha. The record instructs that these entities possess substantial experience in the construction and design of large New Orleans projects.
The OMNOVA vinyl wall covering was selected in October 1998; samples of the wall covering were submitted to CEW's painting and wall covering subcontractor in January 1999; and the wall covering was installed in the FBI Building in August 1999.
NOA's project bid declared that it "brings to this project a peerless development team," providing "cutting edge development, construction, and design innovation." GSA manages more than 8,300 government buildings, and within the past decade has managed the construction or renovation of federal facilities in 160 locations. CEW has had extensive design and construction experience in New Orleans. Moreover, prior to submitting its project bid, NOA secured the services of the architecture firm Perez Ernest Farnet, which had previously designed several large New Orleans hotels and shopping malls.
The Court finds that genuine issues of fact remain as to whether OMNOVA's vinyl wall covering contained a non-apparent defect at the time of its purchase. Thus, NOA has not established that, as a matter of law, OMNOVA is liable under Louisiana's law of redhibition.
Accordingly, NOA's Motion for Summary Judgment as to Redhibition Liability is DENIED.