111 So. 3d 1099
La. Ct. App.2013Background
- Broadmoor appeals after the trial court sustained Pella's peremptory exception of prescription and dismissed its third-party claim against Pella with prejudice.
- Broadmoor also appeals the grant of summary judgment for Day and Day's insurers, and the denial of Broadmoor's motion for partial summary judgment on indemnity/defense.
- Broadmoor, as designer/general contractor for the Marseilles Condominiums, bought Pella windows from Day, which was Pella's exclusive distributor.
- The Day purchase order included onerous indemnity/defense obligations and a requirement that Broadmoor be named as an additional insured; Pella provided a ten-year warranty on the windows.
- Water intrusion damage occurred after 2002 storms; the homeowners association sued Broadmoor in 2003 and joined Pella and Day in 2008; Broadmoor filed its third-party petition against Pella and Day on July 15, 2008.
- The dispute centers on prescription and the enforceability/consent to the indemnity provisions on the reverse side of Broadmoor's purchase order form.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Broadmoor's third-party claim against Pella is prescribed. | Broadmoor argues tolling or interruption theories may apply. | Pella contends prescription expired within one year and was not interrupted. | Claim against Pella prescribed. |
| Whether the Day indemnity/defense provisions are enforceable. | Broadmoor asserts Day consented to onerous terms; provisions may be enforceable. | Day contends it did not consent or have notice of reverse-side terms. | Summary judgment on enforceability reversed; factual issue as to consent remanded. |
| Whether there is a genuine issue of material fact about contract formation. | Broadmoor maintains Day's signature bound by terms on reverse side. | Day argues no evidence it saw or consented to reverse-side provisions. | There is a genuine issue of material fact precluding summary judgment. |
| Whether Broadmoor's warranty/ten-year term affects prescription or redhibition claims. | Warranty extended remedies may toll or alter prescriptive periods. | Warranty period cannot extend prescription beyond law; redhibition governs breach. | Warranty does not extend prescription; redhibition period applicable; claims prescribed. |
Key Cases Cited
- Lima v. Schmidt, 595 So.2d 624 (La. 1992) (acknowledgement interrupts prescription must be explicit)
- Denoux v. Vessel Management Services, Inc., 983 So.2d 84 (La. 2008) (uses interruption/limitations on prescription analysis)
- Minyard v. Curtis Products, Inc., 205 So.2d 422 (La. 1967) (unjust enrichment prescriptive period and remedies)
- Walters v. MedSouth Record Management, LLC, 38 So.3d 241 (La. 2010) (plaintiff may not recover unjust enrichment if other remedies exist)
- Touro Infirmary v. Sizeler Architects, 947 So.2d 740 (La. App. 4 Cir. 2006) (breach of express warranty subsumed under product liability act; redhibition analysis)