245 So. 3d 346
La. Ct. App.2018Background
- In December 2015 Gaitano Milazzo rented an unfurnished house from Douglas R. Harvey; family members also lived there.
- On March 8–11, 2016 the Monroe area experienced an extreme four‑day rain event; the house flooded early March 9, receded, then flooded again during the continuing storm.
- Milazzo sued Harvey and insurer Shelter seeking damages for personal property loss and alleging breach of the lessor's warranty (flood‑prone defect), unauthorized entry, bad faith nondisclosure of prior floods, and unfair trade practices.
- Harvey moved for summary judgment asserting the March 2016 event was a force majeure/act of God that precluded recovery; he submitted NOAA rainfall data, parish flooding estimates, and his own affidavits/deposition excerpts.
- Milazzo opposed with affidavits from a city public‑works supervisor and a nearby neighbor asserting the property is "highly flood prone," evidence the house flooded during ordinary rainfalls, and that initial flooding at the property occurred after a smaller portion of the total storm.
- Trial court granted summary judgment for Harvey on the act‑of‑God ground; the appellate court reversed, finding genuine issues of material fact about whether an ordinary rainfall or a preexisting propensity to flood caused Milazzo’s damages and whether Harvey acted in bad faith by not disclosing prior floods.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether force majeure/act of God defeats recovery | Milazzo: initial flooding occurred from a smaller, non‑extraordinary rainfall and the house is flood‑prone, so landlord liability may attach | Harvey: the March 2016 "thousand year" flood was a superseding act of God that caused all damage | Reversed: factual disputes exist whether initial, ordinary flooding and a preexisting defect caused the loss, so summary judgment on act of God improper |
| Whether susceptibility to flooding is a lessor defect under La. C.C. art. 2696 | Milazzo: susceptibility to flood is a defect warranting strict lessor liability | Harvey: event was extraordinary; prior flood history not dispositive | Court: susceptibility to flooding can be a warranty defect; evidence raised genuine issues of material fact |
| Whether Harvey’s nondisclosure/bad faith is actionable | Milazzo: Harvey knew or had notice of prior floods and failed to disclose, supporting bad faith and penalties against insurer | Harvey: even if prior floods existed, the catastrophic event supersedes liability | Court: Questions of fact as to bad faith and nondisclosure preclude summary judgment; remand for further proceedings |
| Whether insurer Shelter is liable for penalties/attorney fees | Milazzo: Shelter acted arbitrarily/unreasonably in handling claims | Shelter: not addressed substantively in summary‑judgment proof due to act‑of‑God defense | Court: Remanded because material facts remain about causation and potential insurer liability |
Key Cases Cited
- Peironnet v. Matador Res. Co., 144 So.3d 791 (La. 2013) (de novo review of summary judgment standard)
- Saden v. Kirby, 660 So.2d 423 (La. 1995) (definition and effect of force majeure/act of God)
- Wells v. Norris, 71 So.3d 1165 (La. App. 2 Cir. 2011) (lessor strict liability under art. 2696)
- Volkswagen of Am., Inc. v. Robertson, 433 F. Supp. 164 (E.D. La. 1977) (susceptibility to flooding can be a defect)
- Merwin v. Spears, 90 So.3d 1041 (La. 2012) (summary judgment inappropriate where bad faith/subjective intent matters)