Hollybrook Cottonseed Processing L L C v. Carver Inc et al

Filing 124

RULING re 42 MOTION for Summary Judgment filed by Carver-Gump, Lummus Corp and Carver Inc. The Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. Signed by Chief Judge Robert G James on 3/11/10. (crt,DickersonSld, D)

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t:ut:~ ~ct~' ` `"~\~ ~ ` " ~\~f'~~' ~`C'~. ~`~` .`)~ ~`~s \~ ,.:~. \ I NI 11051 UFS WSER1C I ( OURI WESTERN DISTRICT OF 10 UISIANA MONROE DIVISION ~ HOLLYBROOK COTI'ONSEEJ) PROCESSI NC IJ.~C VERSUS CARVER~ NC. FT AL, I CIVIL ACTION NO. 094750 JUDGE ROBERT C. JAMES MAC. JUDGE MARK U .UORNSBV RULING Pending oefore the Court is a Motion fhr Summary Judgment [Doe. No, 42] tiled by i)efcndants Carver, Inc., i.ummus Corp., and Carver~Gumpcollectively. ~Carver") against ( Plaintiff Hollvhrook Cottonseed Proeess~ng, I~C, "Hollybiook"). For the following reasons. ( the Motion for Summary Judgment is GRANTED IN PART and DEN lED IN PART. U FACTUAL AND PROCEDURAL BA(1(GROUND in February of $006. Hollyhrook purchased cotton gin equrpinent from (I~arverot;:thng t $281,042.00. Hollybrook alleges that it relied upon Carve? s expertise and. recommendations in selecting and piw asin the. ecn.uprnent necessary to lrocess 1 50 tons of cottonseed per nay. Flollyhrook alleges that, in addition to the equipnient, Carver also agreed to provide. training and e.ninneenna and technical support. Accorumg to Hollybrook, the equipment it purchased. from Carve.r never operated properts, and despite many effbrts to repatr n. the plants processing volume never rose above. 8(1 tons a. da [Doe. No. 47~ .5]. Approximately 15 months after it began operating, the plant p caught Ore, and it has since ceased operations [Doe. No. I I. 7] -- On February 5. 2009, HoP brook tiled, a Complaint [Doc. No. I--i] against Carver and two other Defendants in the 5th Judicial District> East Carroll Pari~h~ouisiana~ lleging breach L a of contract and violations of Louisiana Civil Code provIsions in the Redhihition Chapter> In its Complaint> Hoilybrook seeks damages for lost isrCYttts> wages and costs during the time the plant was not operationaL expenses incurred in converting the building into a cottonseed processing plant. return of the purchase price, and amounts spent repairing and replacing the equipment> On May 7. 2009. the ease was removed to this Court, On October 7> 2009> Carver filed a Motion (hr Summary Judgjn.ent [Doe. No, 42i. based on the arounds that the contract berween the parties is governed by Georgia hw and waives Carver's liability tbr incidental and consequential. damages, so that the sole recovery available to Hollybrook is Carver's repair or replacement ot the equipment) Tim choice of law and waiver provisions upon whtch Carver relies are in a document titled "Conditions of Sale>' ("COb")> Carver asserts the COb is part of the contract hetwuen the pard.es. Carver further asserts that, even if the contract is governed by Louisiana law, the Louisiana Products Liability Act f~LPLA")La. Rev. STAT> . redhihition. 9:2800>51 >JR preehides all of Hollybrook's claims except On October 22. 2009. l'Iollyhrook filed a Memorandum in Opposition [Doe. No. 4~tio Carver's Minion for Sunmiary Judgment, asserting evidentiary problems whh the motion and arguing that the contract does not include the COb. Hollybrook alleges that the provisions in the COS were not negotiated and were never presented to Hollybrook by Carver prior to the contracts fOrmation> Hollyhroolc also argues that the 1.>PLA does not apply in this case because it applies only to personal injury tort claims> Thus> the motion is actually one tor partia/ summary iudgnaent. On November 2, 2009. Carver tiled, a Reply [oc. No> 551 to Hoiiyhrook'r> Opposition, Luther authenticating the documents attached. t~~~Mtsion for Summary Judgment and asserting .i ot that louisiana's "mailing presumption" rule applies in this case to defeat Hollybrook's allegation that it did not receive the COb. Finally. Carver argues that the LPLA applies regardless of the "p~ f nury. o in addition. to these memoranda> each party ha.s submitted a suppletne.ntalmenlort'tnthtmn further brieting the issue. ~ w~hethe~~the Ob is part of the contract [Doe. Nos. 81 and 02. >C IL LMY AND ANALYSIS A~ Summary Judgme.ttt Standard Sutnnuuy judgment "should he rcndete.d if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there. is. no genuine ,issue as to any material fact and that the movant is entitled to judgment as a matter of law.'> Fun. H. Cv. F. 56(c). The moving party hears the initial burden of informing the Court of the basis Ow its motion by identifying portions of the record which highliuht the absence of aenuine issues e'i.n.iaterial fact. P7w/thorn v. tlarrqy. and 1 .id aon> ~t;8 5tub Cr. 200/). A. aispute about a material tact ts germme n tnt' evidence is. such that a reasonahle fact finder could render a verdict for the nonmoving party. Anjerron v theni~r'Lobby Joe>. 477 U.S. 242, 245 (198$). A fact is "material'> if proof of its existence or nonexistence would a0ft.et the outcome of the lawsuit under applic.uhle law in the case. W "[O~nly isputes ove.r facts that tnig~htafflict the outcome of the suit under the d utt~hi \ \sIll po>pc'ls pu>~ t I ~h cntk of >an' u u~~udgm at I act ta dt~ utes tiC u ~ irrelevant or unnecessary will not be counted." Pt I B. Analysis I, Disputed and Undisputed Facts Sometime in 2005. Hol lybrook and Carver entered into negotiations regarding l'iollyhrook's purchase' of cotton gi.n equipment from Carver. Carver alleges that on August 13, $005. Bob Pavlik (>Pavlik"). Carver's. Product General Manager at the time, mailed a rice quote titled .`l:3rofbrma S>2.959/05" ("Prothrma 1"). mcluding the. COb, to Lloyd Dahleni C'Dahlenf'), the I'lollyhrook employee respors~hle or cquipmnent pt'ocuremn.ent and installation fOr the new f plant [Doe. No. 42.>61. Hollyhrook denies ever receiving this mailing and did not accept the tirst pr~ee uote. q On December 20, 2005. Arnie Cobb ("Cobb"). Carver's Product Manager, faxed a. second price quote, "Protorma S~2.959/05Rev. 2'> "Prolbrma .2"), to Dahlern. [Doe. No. 42~'fl,. It is undisputed that the COb was not included with the Pro ii,rrna 2 fax.. Nenotations concluded on February 25. 2006. On that date, Pavlik faxed a third signed `pnce nuote, "Profo.rma 5'>2959/05 Rev'. 3" OProfonna 3"), to Dahle.mn. Doe. No. $20i1. It is undisputed that this fox also did not' include the COb. Paviik's accompanying fitx message states that Profbrina 3 lists "the items you have agreed to Ptlrchast~ rom us." [Doe. No. 42~8, ij. f ~. Paslik also wrote, "I will send you a formal signed copy by overnight mail.. Please send us a. confirmation purchase order addressed to Carver, inc." As requested, Dahlem faxed a one~age p signed document to Carver that same day. statirtg "[pjlcase use this letter as a confirmation. purchase order for Protbrma. No. 201.959>05 (Rev. 3)." [Doe. No. 4'T'Sl. In his depositton, Pav'lik stated that. after he received the purchase order from Dahicm, he considered the pru'chase a "done deaL" and he entered the. ma.mrfacturing order the next clay, Marcia 1. 2006. [l)oc.. No. 92~ Pavlik Dep. PP. .59"6i1. Carver alleges that Pavlik mailed Floilybrook the. "formal signed copy" of Pmofonna 3 wtth the COb 1w overnight mail on February 28. 21)06. Carver argues that these two clocuu.tcnts make up the final contract between the parties. Flollybrook admits that. it received the mailed copy of ProfOruta 3. hut denies that it included the COb> Flo.l'iyhrook claims it never received a copy of' the COb until Noventher of 2007, in conneetiun with a later contract between the parties> [Doe. No. 47, p. 7k `[`here is no retbrence to the COb in the. body ot any of t.l'te proformnas. None ot' the correspondence between the parties refers to the. COb hefbre August 31, 2007. `[he August 15, 2005 letter from Paviik. allegedly mailed with Prothrnia I and the COb, does not menticm the COS, despite descrihing othe.r enclosures [Doe. No. 92-' 1, p. 80~.Pa.viik's naessage accompanying the February 28, 2006 fox of Proforma 3 also does not mention the COb. Pavlik admits he never negotiated. or even discussed the COb with anyone from Hollybmook. [Doe. No. 92~'i>Paviiic Dep~pp. 23~24, 0>41, 581. Further, Cobb and Michael . 4 Mci..auyblin> General Manager for Carver, admit that it is Carver's standard practice not tu discuss. the COb with customners unless the. custonsers ask questions ahout it. iDoc'. No. 47~8. Cobb Dep.. pp. 48--49. 112--13; Doe. No. 81 --1, Mcl.,aughhn Drip., pp. 196--971. Whether the 05 is Part of the Contract Louisiana law governs the choice of law analysis in a di.versiiy action. DP C'oncrc'/e Prodbei,r.LLC ,Amer/ean 5~ring ire Coql.3.. No. 08-571, 201.0 WI.. 147977, at ~3 (W>D. 1..a. W Jan. 13, 2010). Under Loi.iisiana. law, panics ntay stipulate which state's law governs the contract unless that law cc~ntra iets public policy. LA. Ct V. CoDa art. 3540, d S Carver argues that the Cotu't should rely on a choice of law provision in the COb and apply Georgia law to the issue of whether the incidental and consequential damages waiver in the COb is valid. A threshold issue~ owever, is whether the provisions contained in the COb are h part 01 the contract. IL applying l..ouisiana law. the COS. is part of'the contract, then its choice cifiav" provision tequires that Georgia law he: applied to this dispute. If the COS. is not part ot'the ce.ntract, then its provisions, including the. choice of law pruvision and the. pn~visionlimiting Carver's liability fhr damages, do not apply> To resolve the issue of whether the COb is part of the contract, the Court must decide what documents represent the comraet between Hoiiybrook and Carver under Louisiana law. Hollybrook argues that the COb provisions are not part of tl.ie contract because ~t did not receive them prior to the. contract's librmation> In response, Carver offers evidence that it mailed the COb to Hoilybrook oil two separate. occasions, and invokes the "mailing presumption" of receipt? to support its sumnniary judgment motion. `i'he two partie~sspend the bulk of their briefs on this issue, disputing the sufficiency' of the evidence that Carvem offers of mailing and that Fl'ollyhrook offers of non-receipt. In essence, they disagree about whether there is a genuine issue of fact regarding Hollybrook's recetpt of the COb. Before determining whether this issue is gen.ui.ne~ owever, the Court must cletennine h whether Holiyhrook"s alleged receipt of the COb is actually material to whether it is part of the contract. Hollyhrook's reeei.~.t f'the COb is only material if receipt at the times Carver alleges o 2 In louisiana, there is a rebuttable presumptIon of rece.ipt by the addressee when the sending party shows that a letter has been roPerly addressed. stamped, and mailed. Ckicnnann n (hums. 455 bo.2d 1383, 1387 (I.~a.1984). 6 a.votrld make the. COb part of the contract. Therefore, the. Court must determIne whether Hoilyhrook's receint at either or both times that Carver alleges svou.dd have, any legal efft'.ct on'the contract. The 1.~egaEffoct of Hoflybrook's Mkged Receipt of the (MS l with Preform a .1. `As a. cenoral rule of contract law, separate documemits may he incorporated into a contract by attachment or refbrence thereto." /.014 (Il2numuceing Co.. Inc. `a. Pam /hdu.~'.(oatings. ine..99-0$54. p. 19 (l.a. App. I Cir. 6/23/00); 762. So.'2d 1223, 12.34. lfa contract refers to a separate. document, tha.t doerunent may he tneorporated even thott1, h it is not attached to the contract,. and eveta if the other party never saw the actual doeu.tment because `the other party' is put on notice. of its existence, A. ~1'Ckm. a C/SF' (I.'oristr., Inc 2.005--0863, `pp. 5--6 i i.>a. App. 4 Cr. - 4/26/06); 931 So.2d $82, .3$6.i'losvever, ~.vhere. party includes a term in its initial hid that is not a later incorporated into the resulting eontntct, the term does not bceonue part of' the contract. FAA Contracting, 762 So.2.d at 1234. Cars.'er alleges that on August 15. 2005, itmai led Holiyhrook a copy of tue COb with Profonna I Negotiation.s regardimug the equ~pmne.ntand pr~ee ad not conclude, flowerer, ru'ttii c - Fehn.uirv 3.8.. 2.006, over 6 months later. During this time, the Carver employees wno negotiated with l'iollybrook never explained, discussed, or even mentioned the Cob provisions to Holiyhrook. `i'hese provisions also were nut mentioned in or included with any of the prolortnas or corres.ponde.nce between the parties during this timne. `[`he Court finds that I'lollyhrook's receipt of' the COb \.kdth Profbnna I is irrelevant to the issue of whether it is part. ot'the contract, Receipt of terms and cotidit~o.mtswith a prier. unacc.ented price quote during negotiations does not put a party nit notice that they are tneant to he included i.u the later contract, and where those tenns are muot ~nc.orporateby refbremuce on the d thee of the late.r contract, they are not part of the contract unless they are attached to it. This is particularly true here, vvhere the terms were allegedly mailed (3 months prior to the contract i'Ormnati.on and were never again included, incorporated, or even nucnt~onc.din the interim price quotes. eo.rresr3ondence, or netiutiations. ii. The Legal Effect of Hoilyhrook~sAlleged Receipt of the 05 with the Maded Copy of Proforma 3 Because Proforma 3 does not incorporate the COb be reference, the only'wav it could. tiave heen included in the contract is by' attachment, Assuming Carver attached the COb to the mailed copy of Profhrma 3, whether the. COb became part of the contract through attachment turns on which documents make up the contrac.t hetvveen the parties, i.e., which documents constitute the offer and the. acceptance. "A contrac.t is formed by' the consent of tIue parties e.stahlisl.led through offer and. acceptance.." L.&. Cue. Corn:: art, 1927 Louisiana Cis.'il Code article 2601 states'that: lain expression of aeeeptuutce of an. oIler ...suffic.es to fbrrn a contract of sale if there is agreement on the thing and the price, even though the acceptance contains terms adciit~onai u,or different fromm.. th.e te.m'us of the offer, unless acceptance is t made eonditiumual on the otteror's acceptance of'the additional or diti'brent terms. Between merchants additional terms heeomne part o'f the contract unless. they alte.r the ot'fer materially, or the, otter expressly limits the acceptance. to [its~ terms. or the. o'fieree is notified of the offeror's oh~eetion o the additional terms t within a reasonable time, in all of which eases the additional terms do not become u.t part of the contract. . . - Article .2.601 closely ful lows the strt.teture of [.ini form Corn.mercia.1 0/ode t A)CC") section `2--3.07, which eliminates the "mirror image" requirement for acceptances and c.ontatnsti'ue `thattic $ of the torms,' which detern'unes when. additional terms can become part of eontntcts. i.~otuisiana designed Article 2.601 to avoid some of' the problenus with section 2--207. N. Stephan Kinseila, Smashing the Broken Mirror. Fle Bali/c at"the Fat-ins, (ICC' 2--21)2, and Louisiana 3: lmoravementc, 53 l.~;aL.,Rav,1555. 1556 t 1993). Of'panicular importance here, 1.1CC section 2-- 207 applies not only' to addut~onaIerms in ac.ce.ptances, but also to additional terms. in "written t conflrmauons.' lncius~ont' ec3nfirmnations in CCC section 2--:207 ai1.o~.vsadditimmul terms in o confirmations of already"for.med. oral contracts to retroact~veiy ecome pmmrt ot'the contract in b certain srn.iat~on..l.n contrast, article 2.601 omits the reference to eontirmnationa, amid. a.ssuntinm,' s its other conditiumus are met, allows additional terms to become art ota contract Of!V it'thev are included in an actual aeeeptuu'uec. Id a.t 1573.. An offer must "reflect the intent ot. the author to giv'e to the other party the. right of' concluding the contract by' assent>' be/ta fl_'sring and Insect/on, Inc. v. Ifrar'st N Jortfi ~ Orleans Er/fihution Il/ill Autharini, 96--2.340, p.1 (La, App. 4 Cir. 8/20/97k 699 hold 122, 124. A price quotation alone usually does not have tl'ue attributes of'an otter. I.eanvai v. Flower, 4 `1 eisa. 351 (La. App. Orleans i 907). Hou.vever, "[n]nder Louisiana law, a price list sent m~uon request to a customer constitutes an offer ami the contract ot' sale is compueted when the customer accepts the offbr by placing an orcuer for goods in accordance vv'ith the price list." C/u//' Somtnt.Mtmch., hid; a kearnep &Tkec'ker Clap.. 75$ P.2.d 377, 380 (5th Cir. 19851 (emphasis add eel). in this case. there are two documents that could onerate a.s the offer: Carver's flux of Proforma 3 twhich cud not include the C.~Cb),or 1'lol lybrook's purchase. order, .Pavlik>s messag.c accompanying the tine of Profbrma 3 to Dahiem indicates that the partie.s had ended negotiations 9 regarding the equipme.rut [`luilybrook would buy from Carver. [listing the items ~an have agreed to purchase from us," Doe. No. 42--8, p. 1 (enp.thasis added;]. The message. also asks Dahlc.nu to send a `contirmatio.n" pwrchase order, and indicates Carver's. performance would begin upon its receipt of the prirchiase. order Further, i3aviik in.duc.atc.d in his deposition that. he considered. the purchase order an acceptance. iDoc, No, 92-i, .Paviik Dep. PP- 20, 39, 59--61]. Additionally. Proformna 3 is very detailed it describes the specific equipment. the prices, and the engineering services agreed upon; it also includes ut shipment term, a payment term, amid a warranrv tenn. [Doe. No. 42--8]. On. the other hand, I'l.olly'hrook's purchase order was three sentences long, and simply' states that it confirms Pro'forma 3. [Dc.~c..No. 47--5]. `l'he Court finds that there is nci genuine issue as to the thct that the thxed Frofomnra 3 i/morn Carver was the oiler, accepted by l'l.olly'hrook's purchase order. `l'heretbre, even if Carver included the COS with its later mailed copy of' P.roforma 3, its additional terms were submitted after the contract was formed., and so are not part of the contract. LA. Cue Coun:~:art, .2601 It' - received, the terms in the COb were merely proposals (hr mnditlcatuon. ot the contract. `there is no ev~dencche proposcu terms were ever accepted. by l'iollvbmook,'3 SO tile)' are not part of the t Cmi this issue, Carver c1ffc.rs a letter from Cobb to Dahle.m dated August 31, 2,007. stating that Carver "nor.n'ually do[es] not accept consequential damages" per the COb "attached to the original C arver quote," [Doe. No. 4:1--10]. Carver alleges it relied on I'luilybrook's tiuilure to ob~e.cto this letter. l'Iowe.vc.r, a.s tile le'ttc.r notes, Carver act'u.aliy paid l'Iollybrc.3ok's consequential damages at that time because l'iollybrook was a `valuecf customer.' Hollybroote's failure to object under those circutnstancc.s is no indication that it accepted a modification of.' the f'ehmuiary 2.8. 2.006 contract. C:arvcr also offbrs evidence of later contracts with l'ioilybrook containing the COb, beginning in November 2007 [Doe. Nos. 42>11, 42--12. 42-13. 42--14]. `l'he Court does not reach thi.s evidence because tne terms of later contracts do not influence the terms of tile contract at issue here, and aecentance of the COb with later contracts wom.~ldnot indicate that The hiy'brook accepted a mncsdification to this contract. 10 contrmtet,'4 `[`he Court gives notuc.e of its intent to sno sponic' grant Hollvbrooksummnary iudg~nuenon t the issue of whether the COb is part of the contract. if Carver opposes sum.niar judgment' in favor of' Holivbrook on thi.s issue, it shall file a. mnemoranefttrn in opposution within, fourteen (14) calendar days of' the dat.e ot' tins Kulinc and Ju.cfcnucnt. Ce Losara.> a Oc'wen I-"ed Rank, F/Ill, 489 P.3d 426, 641 sth Cir. 2007 ("[W]hen tlte. disrrict court gives a party ten' days noticc{,] a court mar grant summary' jtndgnnent sua. sponte Ott grotutds not urged un a. pendmg motion.'). Carver's memoraruciun'u shall not exceed ten pages. 3. Whether Hoilybrook's (/bhn~are Precluded by the .LPLA Carver iu'unes that, even if' l.<ouisiana law' does apply' to the contract, the 1.~Pi.~precludes A l'l.oilvhrook's article 252.4, article 2529, and breach of'contract claims. [Doe> 1'~o42, pp. 7--9]. . Carver asks the Court to grant it srunmary judgment on this issue, effectively dismissing these claims and leaving: only 1'lollyhrook's redhibition claim. `l'h.e 1..P1.~A~`establishesthe e.xclusive theories oftliabi lity La manufactt.n'ers for damages caused by their `products.' l.A. R.F:v. brat'. 91.800.52. Damages availahie tunder the statute inch.tde "damage t.o the product itself' and economic loss arising from a deficiency in or i055 of use o.t th.e product only to the extent that Chapter 9 . of the Civil Code cntutied `41,cdhibition' doc.s not allow recovery for such damage or ccononuc loss," LA. Rev, Sine, art. 9~.2800.53(5 Because the Court finds that the COb is not part of the contract, it need nest reach tIme mailbox presumption or resolve the related evidentiary issues maised 1w l'Iollybrook in its Ormosition to Summary' Judgment a.t this time.. For the 5OiflC reason, the Court also does not reach. Holiyhrook s arg:um.ent tha.t the contract is one c.s'f adhesion. Consistent with the recent an.uend-nients to the Federal Rules of' Civil Procedure, the Court grants Carver fottrtee.n t 14) days to respond. II (emphasis added).'~ i. Breach of Contract ClaIms and the IJPL.A Courts have been inconsistent and: unclear in determunung ~vhenand if a buy'er can bring a breach ot' contract claim against a nnanuftlcturer, (/amn.pare ,dvondaic /ndus.. foe'., v. f've"a I `oil'5~ and (/~~niro/Inc., 01-292.3, 2003 `Wl.~226971.80, at * 2-4 (ED s. Nay> 10. 3003) (denyIng summiuy judgment on both breach of contract and LPI.A claims), and ,4'kA us/in a Grinneil Carp.> N'os. ~-7-'7'797-803. 98-22.00,2001 WI.: $584, at C?. ~E.D.l.,a ian. 3. 20W.) (finding the 5, I.,PI.~Adoes not preclude reco~er)~r economic loss froni breach of contract),. with Jefli'rson l. fo Lead industries .4,vs `a, lime., 930 FSupp. 241. 245 ED. La. 19942 (holding that cLims for breach ofimplied and express wan'anties are precltided by the [..P1..A.), n/i'd, 106 LId 1245 (5th Cir. 1997), and laura hifli'mary a SLneier Architects, 2004-2:210, 2005-1265, ~I..uA pp. 4 Cir. i 11/21/06): 947 So.2d 740 (holding. t.hat the. LPLA precludes recoveo under general contract law for breach of express ~van'anty). While the exclusivity provision of the LPLA leaves no doubt t.rc.ach of contract claims aeainst manufacturers fbr damages caused by' their products are subsumed by the i,PLA> in cases where a specific part of tue injury is caused on/,v hy the breach of eormtract, and not by' the product itse'f~ buyer mught he ahh"to bring both. ty'p.es o'f claims against a n'jamumfitctu.ror. `i'he Court a hdlds that mu the limited eircitrnstances where. a buyer sues a manufacturer for economic damages not covered in redhihition and not caused by the product itse.IC it may bring a tireach of contract I'Iollyhrook asserts that the. LPLA applies only to personal injtu'y tort claims because economic loss is usually not "damage" under the stat.m.mte. [Doe. Ni'. 47, p. 1 2]. Economic damages are available un.der the LP1...A~however, as Carver cot're.etly points out in its Reply. 12:. claim `for those damages, on. its own or in addition to a. claim for other damages under'the f..Pi..A or redhihitioum. In this case, i'loliybrook alleges ecomuotnic damages against Carver for breach ot' its contract to provide equipment capable 01 procc.ssintr 1 50 tons of cottonseed a day. Hor.vever, the. contract also provided for certain eng'irucering, repair. rtnd training services. To the extent Holh'brook claims damages caused by the allegedly' defective equipment, its. breach of contmact claims are subsumed by the 1~PLA,and the Court. ORAN'l'S Carver's motion for summary ~udgmemm'ti.owc.v'er, with regard to any eamages tha.t Hoilybrook can show were caused by i breach of' the contract alone, the (I'ourt 1)1131 IFS Carven's motion for sun'unary judgment. Ii, Louisiana Civil Code Articles 2524 and 2.529 and the LPLA Lot.tis.iana. Civil Code article 2.52.0, under the Redhibition Chapter, provides a cause of action fbr breach of the implied warranty against rcdhibit.ory defects." Articles 2524 amud 2529 are also located in the R.edhibition Chapter; however, they both s-tate that remedies for breach of the warranties desc.rmed in them are found under general obligations law, LA. Ctv, Coos: arts. 2524, 2529. Article 2524 states an mmpiied warranty ot fitness: `I'he thing' sold must be reasonably' fit. for it.s ordinary use. When the. seller has reason to know of the particular use the buyer intends and that the buyer is. relying on the seller's skill or judgment in selecting it, the thing sold n'iust he fit for the. buy'e.r' s intended use or for his particular pta-pose. If the thing is not so fit, the buyer's rights are governed by' the general rules of conventional. oblugat~on.s. , ~ A redhihitory aefec.t is defirued as one that `~rencfersthe thing' useless, or its usc so inconvenient that. it must be presumed that a. buyer would not have bought the thing had he k.no\.vn of the defect." A det'ect is also redhi bitory "when, without rendering the thing totally' useless, it diminishes its usefImlness or its value so thrtt it must be presumed that a. buyer would still have bouaht it but. for a lesser price." I,>. Ctv. Coos art. 252.0. 13 in comment a to article 2.524, the. drafters c.lai"ifv that breach ot' this warranty is a cause of action separate from that of breach of the redhibitory' warranty in article 252(1 Comment b to article 253,4 e.xplaim.us that when the ~varnmty' fitness is breached, a buyer may' seek damages under the of general. rules of conventional obligations, even where the thing is free of rernuhitory detects. Courts have interpreted comummenu b to indicate that a hreach o'f the warranty of fitness damn is subsumed by th.e breach of the wart'amv against redhibitory' detects when. there is a redhibitory defect in the thing sold. Stradrt'd r'. )aanaha' Matar Carp., USA. No. 04"30$0, 2005 Wi... 203741 9. at ~I (P.1'.). l.a .Aug. 4. 2005); C'un'<.n'd 1.11W .1,imn1te~dCa a Da'trex. Inc. 05--1 i 71. p.5'' 6 (La.. ,App.3 Cir. 4/5/06); 926 Sold 109, 113-14. in other words, breach of warranty' of'fitness arrp1~esonly in situations where the claim is based on fitness and not th.e defective nature of the thins,, Article. 252.9 states tha.t in eases of' delivery of a thing which, `~mhoughin itself free. of rcdhibitory' defects, is not of'the kind or Quality speeifie.d iru the ccsmutraet or represented by the seller, the rights of the. huy'c.r are governed by' other rules of sale and conventional obligations." Like article 252$, article 2.529's comments state that it was introduced "to enhance the d~stinct~on tween redhihition and contract." La- Ctv. Cona ~t. 2.5.29 cmt a.- Article 2529's be comments further state that it overturns decisuons concluding that rcdhihi'tion is available even where th.e thine itsei.f was fl-ce ofdcf'e.cts. L,s. Cry. Cons art. 2529, c.rnt c. Article 2529 cku-itles tlmat claims l'or breaches of tenus or express warranties in contracts ~ ~`[This rticle] gives expres.s fbr..nuiation. to the seller's obligation of delivering' to the a buyer a thing that is reitsonably lit f'or its ordinary' use. `l'he l.,ouisiana u.r~sprudenee as h recoetnized. the existe.nee of that obligation althouglm, in most instaitees, it has been confused with the warranty a,gainst redfuibitory vices.'> i:jr, Civ. (~io~tt. 2524 cmt a. ar 14 must b.c brought under the kny' of obligations when there is no redhihhory defect in mite ului.ng sold. A ~andrde tins., /nc.. a *2 `/2~'53~ and Cantrals,.Inc., Of -2.923, 2003 WI~~ 697 i 80, at 22 (11.1. La. Nov. 10, 2003). If there are redhihitory defects in. the thins, sold, by its owr.i terms article 252.9 does not apply. The drafters of the Redhihition Chaptr.r made. clear they' wishe.d to distinguish causes of action based o.rt breach of the wananly against redh.ihitory defects and causes of action hased on breach of implied or express wat't'anuics not involving redhibirory defects. Causes of action under articles 2.524 `~`tcIn~'29 are available only' w}.len redhihition under article 25.20 is not, and for claims orouguut under am'tucles 2424 and 242.9, the dri.dt.e.rs directed courts to the aeneral law of obligations. Thus> claims brought under articles 252'-l and 2.539 are breach of contract ciainms, not rcdhibition claims~ `the I...Pi.~Apreenupts breach of contract clain.s brought agahust mna.nu.nthcturers for damages caused by' their products. Therefore, the I...PI...A preempts clainma hu'augft under articles 2524 and $529 against manufacturers for danmage.s caused by their products.' 15cc Sn-oderd. 2005 W l. 2037419. at ~2.:Ihura~ .004--2.2i0~2005--1265, am 6--7. 2 in this case, there is an issue of fact as to whether the equipment i4oliybrook bought from Carver had redhibitory de.kcts. If it did have redhih.itory de.t'h.c'ts, then i'Ioliyhrook"s claims umder article 2524 and 252~9are subsumed by its ciain.u under article 2520 fOr breach of t.he warranty against redhihitory defects.. lithe equipment was free of rcdhihitory defects, Hoilyhrook'S cktinms `In Dawsan fOrms, fTC a BASE COrp.. eta!., No. 0$~0737, 008 WL 5220517, at ~1 2 (WI). i,.a. Dec. 12., 2008), the Court. .found that "Article. 251,4's cross reference to another ch.apter of the civil code drais not remove it from the Redhihition Chapter fOr purposes of construing the i..Pi..A's exciusivity'provisiom' Upon analyzing article 252.4 in coujm'uction with article 2529. the Court recoumuizes that its analy'sis in Dawa'an Iforms was incorrect. 15 under article 2.52.4 a.nd 2529 are subsunued by the 1..1P1.~Ato the extent ilollybrook ciainus damages caused by Carver's products. To the extent l'loilyhrook claims damages caused hy the. allegedly de.kctive equipment, its claims under articles 2524 and $529 are subsumed either by' the. warranty against redhihitory' defects or ha the LPLA, and the Court GRANT'S Carver's motion for sumntary iuditrnent. l'lowever, w'ith regard to any damages mi'uat Rollybrook. can sho.w were caused by' breach of article 2.524 or 2,529 alone, the Court I)ENIES Carver's motion fo.r summary judgment, pending a determination of whether the purchased equipment had redhihitory de'fects. IllCONCLUSION For the `l'are.g.aing reasons> Carver's Motion for Su.immary iudgtneu'uf iDoc. No. 42.1 ~s (IRAN'l'Ei.) IN PAR'!' and I)ENIIEI) Dl EARl'. Carver's Motion fOr Stnrunuary Judgment on Fioily'hrook's elainu of incidental and conscqucntiai damages i.s DEN [ED. Carver's Motion `for Sumnutun' Judgnue.nt on ITol ly'hrook' s claint for breach at" contract is (I~R.AN'l'Ei) o the extent that l'Iollyhrook claims damages caused by the roduct itself, and t DENIED a.s to any dan'uages I'loilyhrook can show were caused' solely' h.y breach of contract. Carver's Motion for Sununuary Judgment on i'loi lyhrook'S claims under Louisiana Civil Code articles 2,524 and 2529 is CfltAN"['El) to the extent Holiy'hrook claims damages caused by the pt-oduct itself, and i)ENIED as to any drainages l'I.allyhrOok can show were caused solely by breach of article 2524 o.r 2529~ ending a det'enninat'iofl of whether the purchased cc1m.uipnuent had p redhihitory defects. The Cou,rt gives, notice of its intent tos an spontc grant sunmmaty judgment in favor of 16 l'iollvhrook. on. the issue of whether the CC)S is part of the contract. `I'he Court `h.ncts it was neither incorporated nor attaci.ed to the contract at flue time of forrna.tion~ nd if it wits delivered a as Carver alleges. it was delivered, after the contract betweemu time Parties wa.s fomnmed.. It' Carve.r opposes summary judgment imu favor of i'hallybroo.k on this issue, Carver shall tile a. nuemorandum in opposition within fourteen (14) calendar day's of'the date of tius Ruling and Judgment. Carver's n'nemnoran.dumn sl.ual I not exceed 10 panes. MONRUTi, LOUISIANA, this fl d-ay' of March, 2010. RC)BER'I' 0, 2. LtNf'i>ED S1.A.FI:~s ,U,JLtO}i.

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