The Genesis Spar, an oil production facility, sits 150 miles south of New Orleans in the Gulf of Mexico. A riser system attaches the floating spar to the ocean floor, 2,600 feet below. The hub of this appeal, indeed of this entire multiparty dispute, is the failed bolts used to secure the riser system. Chevron USA, Inc. (“Chevron”), the part-owner and operator of the Genesis Spar, sued several parties to recover its costs resulting from the replacement of the failed bolts. The dispute presented by this appeal is primarily between Chevron and T-3 Custom Coating Applicators, Inc. (“Lone Star”), the distributor and vendor of the bolts. The case was tried to a jury, which returned a verdict, against several of the parties, in favor of Chevron for nearly $3 million in damages. The jury found Lone Star liable based upon its status as a negligent vendor and, secondly, as an apparent manufacturer of the bolts, making it liable under the Louisiana Products Liability Act (the “LPLA”), La.Rev.Stat. § 9:2800.51, est seq., and in redhibition, La. Civ.Code art. 2545. The jury assigned 35 percent fault against Lone Star for Chevron’s damages. Based on the jury’s determination that Lone Star was liable under Louisiana’s redhibition articles, the district court required Lone Star to pay a portion of Chevron’s attorney fees. We hold that the evidence was sufficient for the jury to find Lone Star liable as an apparent manufacturer and we AFFIRM the judgment for damages. We REVERSE the finding that Lone Star is liable under the Louisiana redhibition articles and VACATE the judgment of attorney fees. At the outset of the trial, the parties’ contractual claims were reserved for determination by the district court, which essentially dismissed them after the jury returned its verdict in favor of Chevron. We REMAND the contract claims to the district court for further consideration.
I.
Chevron hired Aker Maritime, Inc. (“Aker”)
1
in 1998 to provide design and engineering services for the initial construction of the riser system. Stability problems plagued the riser system after its completion, leading to a crack in the spar’s hull in 2000. Oceaneering International, Inc. (“Oceaneering”) repaired the hull at Chevron’s request, and Chevron put Aker in charge of designing a permanent fix. Large bolts called carriage bolts hold the riser system together, and Aker ordered the bolts from Lone Star, according to testimony a “well-known” bolt manufacturer that also distributed others’
Lone Star shipped the bolts to Oceaneering, which was in charge of assembling the risers. The bolts were marked “OF,” indicating the manufacturer, and arrived in shipping boxes bearing the Lone Star mark. They also arrived with a packing slip noting that they were either “manufactured or distributed” by Lone Star. Oeeaneering accepted the bolts, failing to notice the substitution.
The first bolt failure occurred on July 9, 2001, when a bolt head popped off one of the first bolts used in the risers. Jack Couch, the project manager for Oceaneering, contacted Aker’s Mike Harville and told Harville that he thought the bolts were a “serious weak link.” Couch took a picture of the failed bolt and sent it to Harville. Harville told Oeeaneering that it had applied too much torque to the bolt, as Oeeaneering was applying torque to Grade 2 bolts that it believed to be Grade 5 bolts. Oeeaneering continued assembly of the riser system using the torque appropriate for Grade 2 bolts, apparently without incident. In August 2001, however, Aker took over riser assembly, and Oeeaneering sent the parts, including the bolts, to Aker. Like Oceaneering’s employees, Aker’s employees failed to detect that the bolts were Grade A bolts.
After Aker completed installation of the riser system, Oeeaneering divers inspected the construction on July 12 and 13, 2002. During the dives, live audio and video were fed to a room aboard the Genesis Spar, where Chevron representatives could see and hear everything the divers saw. As documented in Oceaneering’s diving logs, the video inspection showed several bolt heads were missing. In addition, Harville testified that a Chevron employee, Bill Donahue, called him regarding a problem with bolt installation, likely on Sunday, July 14.
In the next month, Aker, Oeeaneering, and Chevron representatives investigated the bolt failures. During the review, the team discovered that the bolts were Grade A, not Grade 2. It later determined that not only were the bolts the wrong kind, they were also defective due to a defective manufacturing process, including failure to stress-relieve the bolts and to heat-treat them.
Chevron sued on July 15, 2003, a year and a day after the Oeeaneering dives, but less than a year after it completed its investigation. Its complaint included claims for negligence, strict liability, redhibition, products liability, and breach of contract. Aker brought claims for indemnity against Oeeaneering and Lone Star. To avoid inconsistent verdicts, the parties agreed to try all the claims other than the contract claims to a jury, after which the district court would make factual findings based on the trial record and render judgment on the contract claims. The jury
On September 12, the district court determined that “[t]he jury verdict clearly, and in all respects, trumps the so-called ‘contractual issues.’ ” In the same order, it directed the magistrate judge to determine the attorney fees owed by Lone Star and Oceaneering under La. Civ.Code art. 2545 and noted, “It seems to me that the [Lone Star and Oriental] should split the amount due by the percentage of fault the jury attributed to each; and that the total fee should only cover that part of the recovery attributed to the liability of the two manufacturers.” On October 12, the district court entered judgment, apportioning the damages according to the jury’s fault allocation, regardless of the theory of liability. Lone Star and Aker moved for judgment as a matter of law, which the district court denied. Chevron, Lone Star, and Aker timely appealed.
On January 2, 2008, the magistrate judge recommended $431,906.63 in attorney fees for Chevron. After reviewing the relevant Louisiana case law, he concluded that Oriental and Lone Star should be solidarily liable for the amount. The district court delayed consideration of the magistrate judge’s recommendation pending the Louisiana Supreme Court’s decision in
Aucoin v. Southern Quality Homes, LLC,
Before oral argument, Chevron and Aker reached a settlement, in which Aker paid a sum to Chevron but admitted no fault, after which those parties voluntarily dismissed their appeals insofar as they were adverse to one another. Remaining before us are three parties’ appeals: Lone Star’s, contending that Chevron’s claims against it are prescribed, that insufficient evidence supports the jury’s verdict, and that its LPLA liability precludes an award of attorney fees in redhibition; Chevron’s, arguing that Lone Star and Oriental should be solidarily liable in redhibition and that the district court erred in dismissing its contract claim against Lone Star; and Aker’s, arguing that the district court erred in dismissing its contract claims for indemnity against Lone Star and Oceaneering.
II.
We begin with an overview of our disposition of the case. We first consider Lone Star’s appeal, as its resolution allows us to dispose of Chevron’s appeal. We first consider Lone Star’s arguments that Chevron’s claims are prescribed, and we deter
III.
We begin with our discussion of Lone Star’s appeal. As we have said, the jury considered three theories of liability against Chevron: negligence, the LPLA, and redhibition. It found Lone Star liable under all three. Lone Star first argues that Chevron’s claims under all three theories are prescribed. Alternatively, if the claims are not prescribed, Lone Star argues that it owes no damages because the evidence is insufficient to establish liability on any of the claims. Finally, it argues that if it is liable under the LPLA, it is not required to pay any of Chevron’s attorney fees.
We review
de novo
the district court’s decision on the Rule 50 motion.
E. Tex. Med. Ctr. Reg’l Healthcare Sys. v. Lexington Ins. Co.,
A.
Lone Star first argues that Chevron’s claims are prescribed because Chevron did not file this action within a year of the claims’ accrual. Under the doctrine of
contra non valentem,
the prescriptive period begins to run “on the date the injured party discovers or should have discovered the facts upon which his cause of action is based.”
Griffin v. Kinberger,
The parties’ primary disagreement focuses on how much information is necessary to commence the prescriptive period. Lone Star relies on cases invoking Cartwright v. Chrysler Corp., in which the Louisiana Supreme Court wrote:
Whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount toknowledge or notice of every thing to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription.
In the light of these principles, we conclude the jury had a sufficient basis to find that the prescriptive period had not run before Chevron filed suit. Lone Star first argues that the prescriptive period should have begun when the first bolt broke in 2001, but the evidence showed all involved had cause to conclude that the bolt failure resulted only from excess torque. Oceaneering and Aker adjusted the torque specifications, and no one saw any further bolt problems until the final inspection. Because Chevron and its agents had cause to conclude that the problem was overtorquing traceable to Oceaneering, not faulty bolts traceable to Lone Star, the jury was entitled to determine that the prescriptive period did not start at that time. Similarly, the jury could reasonably conclude prescription did not start in July 2002. Aker’s Mike Harville testified that after the dives showed more broken bolts, no one knew the cause. It could have been continued overtorquing, faulty manufacture, or improper bolt substitution. Each problem pointed to a different defendant. Chevron and others immediately launched an investigation, which produced several theories as to who was responsible the next month, less than a year before it filed suit. Thus, the jury was entitled to conclude prescription did not bar Chevron’s claims against Lone Star.
B.
We turn now to the jury’s imposition of liability. As we have earlier indicated, the jury found Lone Star liable on three theories: negligence, redhibition, and the LPLA. Lone Star provides numerous arguments that the jury lacked sufficient evidence for each theory. Because each theory supports the same damages, it is necessary only to affirm one basis of liability. 5 Finding sufficient evidence to support the jury’s LPLA verdict, we affirm the district court’s award of compensatory damages on that basis.
The LPLA provides remedies for claimants, harmed by an unreasonably dangerous product, against the manufacturer. La.Rev.Stat. § 9:2800.54(A). The jury determined that Lone Star was a manufacturer of the bolts and, accordingly, that Lone Star owed damages under the LPLA.
6
Lone Star argues that the jury
1.
Neither our court nor the Louisiana Supreme Court has considered the scope of the apparent manufacturer doctrine as reflected in the LPLA. We are, however, not without guidance. Louisiana courts have held apparent manufacturers liable in the same capacity as manufacturers since 1967.
Penn v. Inferno Mfg. Corp.,
Since
Chappuis,
the Louisiana courts have more fully developed the apparent-manufacturer doctrine. As a general rule, it takes very little under Louisiana law to present a jury issue if a product does not bear the actual manufacturer’s mark. For example, an unlabeled bungee cord with a price tag reading “ACE PRICE $ $2.95” was enough to survive summary judgment on the claim that Ace Hardware, the seller of the cord, held itself out as the cord’s manufacturer.
Louviere v. Ace Hardware Corp.,
Most striking are the two cases in which the packaging indicated that the distribu
the local Coca-Cola bottling company, which is a bottler (manufacturer) of soft drinks and is the distributor of Coca-Cola in an area, should be regarded as a manufacturer of all Coca-Cola products it distributes, even though a certain product (the canned Coke in this instance) was not actually canned by the local company but was canned by a company formed by local bottlers for the purpose of providing canned Coca-Cola for distribution by local bottling companies.
Id.
It emphasized, “[t]he fact that the label contains a small print identification of the actual manufacturer is of no consequence.”
Id.
at 1085-86. Similarly, in
Peterson,
the label “clearly stated” in small print on the back of the can of shoe-care product, “Manufactured
for
G.H. Bass & Co.”
These developments are consistent with the prevailing common-law doctrine of apparent-manufacturer liability. As the Restatement (Second) of Torts, on which the Louisiana Supreme Court relied when it first imposed manufacturer liability on a seller in Media Production Consultants, explains:
The mere fact that the goods are marked with such additional words as “made for” the seller, or describe him as a distributor, particularly in the absence of a clear and distinctive designation of the real manufacturer or packer, is not sufficient to make inapplicable the [designation as apparent manufacturer]. The casual reader of a label is likely to rely upon the featured name, trade name, or trademark, and overlook the qualification of the description of source .... However, where the real manufacturer or packer is clearly and accurately identified on the label or other markings on the goods, and it is also clearly stated that another who is also named has nothing to do with the goods except to distribute or sell them, the latter does not put out such goods as his own. That the goods are not the product of him who puts them out may also be indicated clearly in other ways.
Restatement (Second) of Torts § 400 cmt. d;
Media Prod. Consultants,
262 So.2d at
2.
Considering the evidence in the light of the principles we have just examined, we hold that the jury had enough evidence to conclude Lone Star held itself out as a manufacturer. The jury heard evidence that Lone Star was “well-known” as a bolt manufacturer.
7
Chevron’s agent, Aker, dealt directly and exclusively with Lone Star in purchasing bolts, and Lone Star did nothing to inform Aker that the bolts it sold were not its own. Instead, it shipped the bolts in Lone Star-labeled boxes and included a packing slip indicating that Lone Star possibly manufactured the bolts in question.
8
It is true that the bolts had small “OF” markings on their heads. Although a bolt purchaser might have reasonably understood that the marking suggested someone other than Lone Star likely manufactured the bolts, the Oceaneering employee who photographed the bolts upon receipt was left with the impression that the bolts were Lone Star bolts, not Oriental Fastener bolts.
See Peterson,
Lone Star’s argument on appeal has focused on the negative consequences of allowing a box’s label to trigger apparent-manufacturer liability. We are not unsympathetic to the argument that vendors should not face liability simply because they package the products they sell in boxes bearing their logos. Anyone who has purchased a book from Amazon.com understands that the box’s logo is not necessarily a sign of who manufactured the product. Indeed, placing the seller’s logo on a box can serve a useful purpose in identifying the contents to the consumer. If the boxes were the only evidence against Lone Star, the cases would indicate a different decision.
See Matthews,
Nor does our decision allow every manufacturer who also distributes others’ products to be held liable as an apparent manufacturer. As a manufacturer of bolts, Lone Star is in a position to make it clear to consumers which products it makes and
C.
We turn now to the district court’s award of attorney fees, which are allowable only if Chevron has a redhibition claim under La. Civ.Code art. 2545. 10 The district court awarded Chevron attorney fees based on the jury’s determination that Lone Star was a manufacturer that breached the seller’s warranty against redhibitory defects and ordered Lone Star to pay Chevron $151,167.32. Lone Star now argues that Chevron does not meet the requirements for an award of attorney fees under art. 2545, and even if it does meet the article’s requirements, the LPLA precludes Chevron’s redhibition claim and consequently an award of attorney fees. We address Chevron’s claim under art. 2545 first, and then turn to Lone Star’s LPLA preclusion argument.
Under the redhibition articles, a seller warrants to the buyer that the thing it is selling is free of hidden redhibitory defects and fit for its ordinary use. La. Civ.Code arts. 2520, 2521,
&
2524;
see generally Aucoin,
Lone Star does not dispute the jury’s determination that it was a seller, and we have already held that Lone Star is the bolts’ manufacturer under the apparent-manufacturer doctrine. It is the third element that Lone Star disputes: that Chevron is a buyer. It does so on grounds that Aker, not Chevron, was the actual purchaser of the bolts from Lone Star, so there was no privity between Lone Star and Chevron. This argument has no force, however, as Louisiana long ago abandoned the privity requirement in redhibition.
Aucoin,
As explained by the Supreme Court, the economic loss doctrine prevents a plaintiff from recovering for damage to the product itself or losses that arise from the plaintiffs inability to use the product.
E. River Steamship Corp. v. Transamerica Delaval, Inc.,
In the light of these authorities, Chevron’s damages incurred repairing the spar are not economic loss. The undisputed facts here show that the defective products, the bolts, have damaged other property, the spar. That damage is not economic loss — the claim is not that the bolts were “a waste of money” or caused lost profits, Johnson, supra, at 551 — but property loss, so Chevron’s damages are entirely under the LPLA, not in redhibition.
Chevron’s cited cases are consistent with this rule.
See In re Ford Motor Co. Vehicle Paint Litig.,
No. MDL 1063,
In sum, the nature of the damages awarded Chevron precludes Lone Star’s liability in redhibition. Because attorney fees are available only in connection with liability under the redhibition articles, we reverse the district court’s judgment awarding those fees. Consequently, we do not address Chevron’s argument that Lone Star and Oriental should be solidarily liable for such fees. 13
We turn now to the contract claims of Chevron and Aker. As we have already indicated, Chevron also sued Lone Star for breach of contract, and Aker sued Lone Star and Oceaneering for indemnity under the relevant contracts. The parties agreed that the district court would decide the contract claims after the jury’s verdict to avoid the possibility of an inconsistent verdict. After the jury reached its verdict, the district court concluded that the verdict “trump[ed] the so-called ‘contractual issues’ ” and dismissed all of the claims. Because neither we, nor the parties, are certain what the district court meant by this statement, we remand those issues to the district court for “further consideration and for fuller explanation.”
In re Blast Energy Servs., Inc.,
V.
We recap what we have decided in the opinion. First, we have upheld the jury verdict that Chevron’s claims against Lone Star are not prescribed. The jury had sufficient evidence to conclude that Chevron lacked sufficient information to bring a claim more than a year before it filed suit. Second, we have held that the jury had sufficient evidence to conclude Lone Star was liable to Chevron under the LPLA as a manufacturer whose products caused damage to the spar. A seller is a manufacturer under the LPLA if it holds a product out as its own, and after reviewing the case law and the evidence, we have concluded that under Louisiana law the jury had sufficient evidence to conclude Lone Star was an apparent manufacturer. Third, we have reversed the judgment awarding attorney fees. The parties agreed that Chevron could only recover attorney fees in redhibition, and they further agreed that the LPLA preempted Chevron’s redhibition claim unless Chevron’s repair costs were “economic loss” under the LPLA. We have concluded that the damages constituted damages to other property, not economic loss, so the LPLA preempted the jury’s verdict as to redhibition. With the redhibition claim thus out of the picture, we did not address Chevron’s argument that Lone Star and Oriental should be solidarily liable in redhibition. Concerning the contract claims of Chevron and Aker, we have been unable to determine why the district court dismissed the claims, so we remanded them for further explanation and consideration in the light of our holding.
In sum, we AFFIRM the district court’s judgment awarding compensatory damages against Lone Star to Chevron, but we REVERSE its judgment awarding attorney fees. We REMAND for further consideration of the contract claims.
AFFIRMED in part; REVERSED in part; and REMANDED.
Notes
. Aker Maritime, Inc. has gone through various incarnations throughout its relationship with Chevron, including as CSO Aker Maritime, Inc., Technip Offshore, Inc., and Tech-nip USA, Inc.
. Grade A and Grade 2 bolts are similar, but the standards are different in several respects. The most important difference in this case is that Grade 2 bolts require heating to a specific temperature keep them from breaking, whereas Grade A certification allows the manufacturer to determine what level of heat treatment is appropriate. At the time, Oriental routinely did not heat-treat its bolts at all.
. Oriental Fastener Co. is now known as Tech OFCO, and it is insolvent.
. The 40 percent figure includes two separate allocations, both of which concern the companies treated collectively as "Aker."
. Neither the jury's verdict nor the district court’s judgment indicates in any way that the damages for which Lone Star is responsible vary according to theory of liability.
. Chevron pleaded damages based on a defective product only in redhibition and negligence in its original and amended complaints, never mentioning the apparent-
. Aker’s Jeff Measemer testified that although Lone Star was a known bolt manufacturer, he was not sure if Lone Star’s manufacturing reputation extended to bolts with heads, such as the carriage bolts at issue here.
. The slip read, "Fasteners shipped on this sales order have been manufactured or distributed by LSS Lone Star — Houston in accordance with our documented quality system.”
. In Rutherford and Peterson, there were explicit statements that someone else — not the distributor — manufactured the products. An "OF” on the bolts’ heads, standing alone, is not as clear an indication that someone other than Lone Star manufactured the bolts as was present in those cases. Accord Restatement (Second) of Torts § 400 cmt. d (suggesting a "clear statement” that the distributor was not the manufacturer would avoid apparent-manufacturer status).
. La. Civ.Code art. 2545 provides:
A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for ... attorney fees ....
. Accord Vincent R. Johnson, The Boundary-Line Function of the Economic Loss Rule, 66 Wash. & Lee L.Rev. 523, 550-51 (2009) ("[I]f a person buys a can of paint and applies the paint to a door, the person has a potential tort claim ... if toxic odors from the paint make the plaintiff sick or if the paint eats away at the door and damages that ‘other’ property. However, if the paint simply fails to adhere to the door effectively and flakes off, or quickly discolors, causing no other damage but making the paint’s purchase a waste of money, the buyer's sole avenue for recovery is rooted in contract principles.”).
. Consider two leading analyses of the LPLA. Kennedy writes,
[T]he LPLA governs products liability in tort and recovery under the statute will normally be limited to recovery for personal injury and damage to property other than the product itself, which properly are the subject of a liability tort claim. Recovery for damage to the product itself or economic loss arising from a deficiency in or loss of use of the product will normally not be compensable under the LPLA, because those items of damage properly are the subject of a claim in redhibition for breach of implied warranty. If, however, a claimant cannot proceed in redhibition for some reason, he can recover his damages in redhibition under the LPLA.
Kennedy, supra, at 580 (emphasis added). Crawford provides an example that reflects the same interpretation:
[I]f the plaintiff bought a dump truck with defective brakes and in an ensuing crash suffered personal injuries, total loss of the truck, and loss of his hauling contracts, he would claim under the [LPLA] for his personal injuries, and would cumulate with that claim an action in redhibition against the manufacturer for the loss of the truck itself, the economic loss of his hauling contracts, and for attorney fees under the redhibition claim.
William E. Crawford, The Louisiana Products Liability Act, 36 La. B.J. 172, 173 (1988).
. Because we determine the LPLA preempts Lone Star’s redhibition liability, Chevron’s argument in its cross-appeal that Lone Star and Oriental should be solidarily liable in redhibition is moot.