171 So. 3d 425
La. Ct. App.2015Background
- In June 2008 the Vicaris contracted with Window World for purchase and installation of 45 custom windows; installation completed ~June 27, 2008.
- Vicaris discovered leaks and water damage in May 2010; Window World arranged repairs completed in August 2010 by installer Mike Hildred.
- Vicaris discovered additional leakage and interior damage in September 2012 and sued Window World in April 2013 for defective installation and repair.
- Window World filed third-party demands (indemnity/contribution) against multiple installers and their insurers; many installers moved to dismiss as perempted under La. R.S. 9:2772.
- Trial court: sustained peremption (La. R.S. 9:2772) as to several installers/insurers and granted Penn America’s partial summary judgment; granted Window World’s summary judgment that Vicaris’ claims were prescribed under the redhibition one-year rule (La. C.C. art. 2534).
- Court of Appeal: reversed dismissal of Vicaris (holding the Vicari contract is a construction contract subject to 5‑year peremptive La. R.S. 9:2772), affirmed peremption as to several installers, and reversed dismissal of Window World’s claims against Penn America with respect to 2010 repairs (those claims were timely).
Issues
| Issue | Plaintiff's Argument (Vicaris) | Defendant's Argument (Window World / Installers) | Held |
|---|---|---|---|
| 1. Nature of Vicari contract: sale (redhibition 1‑yr) vs construction (La. R.S. 9:2772 5‑yr) | Contract is to build/install; installation is central; prescriptive period did not start or was tolled by repair promises | Contract is predominantly sale of windows; installation is incidental; one‑year redhibition applies from last repair (Aug 2010) | Court of Appeal: contract is a construction contract; 5‑year peremptive period applies; Vicaris’ suit (Apr 2013) timely; reversal of trial court summary judgment. |
| 2. Whether third‑party contracts between Window World and installers are construction contracts subject to La. R.S. 9:2772 | (implied) should be analyzed consistently with Vicari contract | Installers: contracts are for labor/installation and fall within La. R.S. 9:2772; Window World sought indemnity later than five years after 2008 completion | Court: contracts fall within La. R.S. 9:2772; peremption applies; affirmed dismissal as to Boomershine, American States, Hillers, Gulf Coast. |
| 3. Timeliness of Window World’s third‑party claim against installer Hildred for 2010 repairs | Window World contends claim for 2010 repairs filed within five years (filed Sept 30, 2013) | Penn America argued all claims perempted and no direct action coverage | Court: claims related to 2008 installation perempted, but indemnity claim for Hildred’s 2010 repairs is timely; reversed dismissal as to Penn America/Hildred for 2010 repairs and remanded. |
| 4. Burden of proof on peremption/prescription when not evident on face of pleadings | Vicaris argued trial court failed to consider evidence negating prescription and improperly shifted burden | Window World argued prescription/peremption was evident and met its burden | Court: applied proper standards — treated Window World’s summary‑judgment assertion as peremptory exception for prescription and evaluated manifest error; affirmed/ reversed as consistent with evidentiary showing above. |
Key Cases Cited
- Alcorn v. City of Baton Rouge, 863 So.2d 517 (La. 2004) (pleadings interpreted by true meaning; summary judgment characterized as exception of prescription when it contains essential allegations)
- Taranto v. La. Citizens Prop. Ins. Corp., 62 So.3d 721 (La. 2011) (standard of review and burden rules for exceptions of prescription)
- Bailey v. Khoury, 891 So.2d 1268 (La. 2005) (statutes of prescription construed strictly against prescription; burden shifts when petition is prescribed on its face)
- Acadiana Health Club, Inc. v. Hebert, 469 So.2d 1186 (La. App. 3 Cir. 1985) (factors to distinguish contract to build from contract of sale)
- AA Specialty & Supply, Inc. v. Quinn, 411 So.2d 1165 (La. App. 1 Cir. 1982) (sale plus delivery and installation characterized as construction contract)