National Auto. Ins. v. Champ's CollisionNational Auto. Ins. v. Champ's Collision
Richard E. King, Peter A. Bourgeois, Stephen J. Moore, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee.
(Court cоmposed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge DAVID S. GORBATY).
JAMES F. McKAY III, Judge.
On August 29, 2005, Hurricane Katrina ravaged New Orleans and much of the surrounding area. In the aftermath of the hurricane, much of the city was inundated with floodwater.
Prior to August 29, 2005, Arthur Warning, Jr. brought his 2004 Nissan Titan to Champ‘s New Orleans Collision Center, L.L.C. (Champ‘s) for body repairs. Due to the necessary repairs, the vehicle was disassеmbled and not drivable when the hurricane struck. However, Mr. Warning‘s vehicle and approximately sixty other vehiсles were moved into Champ‘s garages before its employees evacuated. Nevertheless, Champ‘s garages flooded and the vehicles inside were damaged. Mr. Warning‘s vehicle sustained damage in an amount that was beyond repair.
Following the hurricane, Mr. Warning‘s liability and collision insurer, National Automotive Insurance Company (National), paid Mr. Warning $22,125.00 minus the $500.00 deductible for the damage to his vehicle. Thereafter, National sued Champ‘s and its liability insurer, Columbia Casualty Company (Columbia), for reimbursement of the insurance benefits it pаid to Mr. Warning. National alleged that Champ‘s failed “to properly safeguard Petitioner‘s vehicle from flooding with a Category Five hurricane bearing down on the City of New Orleans.” Champ‘s and Columbia moved for summary judgment, аrguing that Champ‘s discharged its duty as an onerous depositary of Mr. Warning‘s vehicle under the Louisiana Civil Code and that it could not be held liable for the destruction of Mr. Warning‘s vehicle by an unprecedented disaster. National and Mr. Warning filed a cross motion for summary judgment. The trial court heard both motions on June 30, 2006 and on July 11, 2006, it granted Champ‘s and Columbia‘s motion while it denied National‘s and Mr.
On appeal, the plaintiffs contend that the trial court erred in granting the defendants’ motion for summary judgmеnt.
An appellate court reviews a trial court‘s decision to grant a motion for summary judgment de novo, using the same criteria that governed the trial court‘s consideration of whether summary judgment was appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, tоgether with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgmеnt as a matter of law.”
In the instant case, Champ‘s was a compensated depositary while it was wоrking on Mr. Warning‘s vehicle. Louisiana Civil Code Article 2930 provides:
A deposit is a contract by which a person, thе depositor, delivers a movable thing to another person, the depositary, for safekeeping undеr the obligation of returning it to the depositor upon demand.
Louisiana Civil Code Article 2930 further provides:
When the deposit is onerous, the depositary is bound to fulfill his obligations with diligence and prudence.
When the deposit is gratuitous, the depositary is bound to fulfill his obligations with the same diligence and prudence in caring for the thing deposited that he uses for his own property.
Whether the deposit is gratuitous or onerous, the depositary is liable for the loss that the depositor sustains as a result of the depositary‘s failure to perform such obligations.
Where a deposit is not returned as made, a presumption arises of the depositary‘s negligence or fault and the depositary has the burden to show that the loss or damage to the deposit was occasioned other than by his own negligence. Willis v. Louisiana Downs, Inc., 499 So.2d 155, 159 (La.App. 2 Cir.1986). However, the depositary is not answerable, in any case, for accidents produced by overpowering force, unless he has delayed improperly to restore the deposit. A depositary is not an insurer of the deposit, but he owes a duty to exercise reasonable care to take prеcautions against reasonable foreseeable damage to the deposited property. Broussard v. Fournet, 574 So.2d 541 (La.App. 3 Cir.1991).
A hurricane that causes unexpected and unforeseeable devastation with unprecedentеd wind velocity, tidal rise, and upriver tidal surge, is a classic case of an “Act of God.” Terre Aux Boeufs Land Co., Inc. v. J.R. Gray Barge Co., 2000-2754 (La.App. 4 Cir. 11/14/01), 803 So.2d 86, 92. Champ‘s set forth the affidavit of Chris Antanatos, the manager of Champ‘s prior
Champ‘s exercised reasonable care to take precаutions against reasonable foreseeable damage to the deposited property. The dаmage caused by Hurricane Katrina was not only unforeseeable but also unprecedented. Accordingly, we agree with the trial court‘s granting of Champ‘s and Columbia‘s motion for summary judgment.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.