330 So.3d 346
La. Ct. App.2021Background:
- Plaintiff Frank Tony Martin was severely burned when an MK disposable lighter he bought at Super Saver Discount allegedly exploded; he sued the retailer, its insurer, the wholesaler India Imports, LLC d/b/a International Wholesale Club (IWC), and manufacturers/distributors.
- Martin alleged IWC sold a case (20 bricks of 50 each) of MK lighters to Super Saver and sought to hold IWC liable as an apparent manufacturer under the Louisiana Products Liability Act (LPLA).
- IWC undisputedly bought and resold MK lighters in original packaging (bricks/cases), did not alter labels, and the lighters/packaging bore "MK" or "MK LIGHTER"; IWC did not place its name on the product or packaging.
- Plaintiff relied chiefly on a page in IWC’s product catalog that showed a photo labeled "Lighter Cheap 50ct" with the initials "IWC" in each picture box to argue IWC held itself out as the manufacturer.
- The trial court denied IWC’s summary judgment, finding questions of fact about whether IWC’s marketing materials could make it an apparent manufacturer; the Fifth Circuit granted writ review, analyzed the point-of-sale perspective and precedent, and reversed, granting summary judgment for IWC on the apparent-manufacturer claim.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IWC can be an "apparent manufacturer" under the LPLA | Martin: IWC's catalog depicted the cheap lighters with an "IWC" mark and omitted the MK name on that picture, so reasonable consumers could think IWC was the manufacturer | IWC: The actual lighter and packaging bore "MK"; IWC sold bricks unchanged to retailers, did not label product as its own, and catalog photo was generic and not a point-of-sale label to consumers | Court: No. Catalog page (not shown to consumer at point of sale) and absence of IWC marking on product/packaging do not create a genuine issue; summary judgment for IWC granted |
| Whether availability of the catalog/warehouse sales to "public" creates a triable issue | Martin: Catalog was available at IWC's cash-and-carry warehouse and thus could influence purchasers; absence of manufacturer name on product supports jury issue | IWC: Catalogs target retail customers (convenience stores), not general public; it sold only by bricks to retailers and did not include the catalog with consumer sales; no evidence consumers believed IWC manufactured the lighters | Court: No. Record shows IWC sold to retailers by bricks; no evidence catalog affected consumers at time/place of purchase; courts evaluate apparent-manufacturer from consumer's point of sale, so summary judgment appropriate |
Key Cases Cited
- Chevron USA, Inc. v. Aker Mar., Inc., 604 F.3d 888 (5th Cir. 2010) (apparent-manufacturer analysis focuses on whether seller held itself out as manufacturer from purchasing public's viewpoint)
- Chappuis v. Sears, Roebuck & Co., 358 So.2d 926 (La. 1978) (retailer held out product as its own where product bore retailer's mark and retailer exercised control over specifications)
- Media Production Consultants v. Mercedes-Benz of N. Am., Inc., 262 So.2d 377 (La. 1972) (distributor treated as manufacturer where public reasonably perceived distributor as such due to its exclusive marketing/service role)
- Rutherford v. Coca-Cola Bottling Co. of Shreveport, 501 So.2d 1082 (La. App. 2 Cir. 1987) (local bottler liable where evidence showed it held itself out as manufacturer to local consumers)
- Louviere v. Ace Hardware Corp., 915 So.2d 999 (La. App. 3 Cir. 2005) (absence of manufacturer's mark on product can support a jury issue whether seller is the apparent manufacturer)
- Allstate Ins. Co. v. Fred's, Inc., 33 So.3d 976 (La. App. 2 Cir. 2010) (apparent-manufacturer inquiry examines information available at point of sale)
- Peterson v. G.H. Bass & Co., 713 So.2d 806 (La. App. 4 Cir. 1998) (point-of-sale labeling relevant to apparent-manufacturer question)
- Matthews v. Wal-Mart Stores, Inc., 708 So.2d 1248 (La. App. 4 Cir. 1998) (apparent-manufacturer issues tied to what the consumer reasonably perceives at purchase)