Wilson v. GEICO Cas. Co.

343 So.3d 308

Freddy L. WILSON, Branson Wilson, and Antonia Burks, Plaintiffs-Appellants

v.GEICO CASUALTY COMPANY, Courtesy Chevrolet, Inc. d/b/a Chevyland, and General Motors, LLC, Defendants-Appellees

No. 54,551-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered June 29, 2022.

LAW OFFICES OF JACK M. BAILEY, JR., By: Jack M. Bailey, Jr., Shreveport, Valerie A. DeLatte, Counsel for Appellants

COTTON, BOLTON, HOYCHICK, & DOUGHTY, LLP, By: John Hoychick, Jr., Rayville, Counsel for Appellee Courtesy Chevrolet d/b/a Chevyland

BERNARD, CASSISA, ET AL, By: Carl J. Giffin, Jr., Metairie, Counsel for Appellee General Motors, LLC

Before MOORE, STEPHENS, and HUNTER, JJ.

MOORE, C.J.

The plaintiffs, Freddy Wilson, his son Branson Wilson, and Branson's guest passenger, Antonio Burks, appeal two summary judgments that dismissed their claims of redhibition, negligence, and personal injury against Courtesy Chevrolet Inc., d/b/a Chevyland, arising from a single-car accident involving a 2014 Chevy Camaro purchased from Courtesy. We affirm.

FACTUAL BACKGROUND

Wilson, who lives in Ringgold, Louisiana, bought the Camaro from Courtesy, on Youree Drive in Shreveport, in December 2015, for the use of his 22-year-old son, Branson. It was a "GM Certified Pre-Owned," meaning the car went through a 172-point inspection and the new owner was entitled to a free oil change and tire rotation. Wilson took the Camaro back to Courtesy in March 2016; they performed the oil change but could not rotate the tires – the rear tires were not the same size as the front. Paperwork showed that in those three months, Wilson and his son had put over 8,000 miles on the car.

Early on the morning of April 30, 2016, Branson was driving back to Ringgold, north on U.S. 371, with his friend Antonio. It had been raining, the road was wet, the area dark, and Branson was using the Camaro's cruise control. Branson suddenly lost control: the car veered left, crossed the southbound lane, went off the road some 102 feet, struck an embankment, flipped over, went airborne some 87 feet, and finally struck a tree and fell to the ground. The car landed on its roof, the wheels pointing up. Branson and Antonio were injured. Branson told State Trooper Michael Antilley, who came to the scene, that he hit a puddle of water and lost control. Antonio had no recollection of what happened.

A local tow truck operator, Ronald Tipton, towed the Camaro to his lot shortly after the accident. The car stayed there four days; on May 4, Wilson got a friend to move it to his own (Wilson's) property, in Ringgold, where it has remained to this day. Wilson retained counsel; counsel hired an expert, Carl Finocchiaro, P.E., of Spectrum Forensics, in Englewood, Colorado, who examined the car in August 2016, primarily to see if a vehicle recall had anything to do with the accident.

ACTION IN THE TRIAL COURT

In April 2017, Wilson, Branson, and Antonio filed this suit, in the Second JDC, based on the accident.¹ They named as defendants GEICO, Wilson's auto insurer; Courtesy, the seller; and General Motors ("GM"), the manufacturer. In their petition, Wilson asserted a breach of duty of good-faith adjustment against GEICO and a redhibition claim against Courtesy; all three plaintiffs asserted products liability and personal injury claims against GM; and Branson and Antonio asserted negligence and personal injury claims against Courtesy. The alleged defect was that, as Mr. Finocchiaro discovered several months after the accident, a nut was missing from the tie rod on the driver's side front wheel assembly; this, they alleged, caused the car to veer off the road. The claim against Courtesy was that it allowed the defective Camaro to be sold, and that it negligently performed (or failed to perform) the 172-point inspection; if done right, this would have uncovered the loose or missing nut.

Courtesy filed two exceptions of vagueness, which the district court sustained in part. In response to that judgment, Wilson filed a first amended petition, which not only addressed the ambiguities but specifically alleged a breach of contract and fraud, in that Courtesy never advised him that the Camaro had previously been in an accident.

After considerable discovery, in November 2019, Wilson dismissed his claim against GEICO, reserving all rights against GM and Courtesy. GEICO had declared the Camaro a total loss and paid off the loan, less $4,000, because Wilson wanted to keep the salvage.

Motions for Summary Judgment

GM filed a motion for summary judgment in January 2020. This alleged that in his deposition, Mr. Finocchiaro could not identify any specific defect in the Camaro, and had no opinion whether the alleged defect caused the accident or was due to design or manufacture.

Courtesy followed with two motions for summary judgment. The first addressed Branson and Antonio's claims of negligence and personal injury, arguing that there was no evidence that the nut was missing or loose at the time of the sale. It attached a sheaf of documents, including:

• affidavit of Jimmy Sistrunk, the mechanic who performed the 172-point inspection of the Camaro at Courtesy: he stated that the nut was present on the tie rod when he inspected the car, and there was no requirement to place a tool (torque wrench) on the nut to make sure it was really tight.

• affidavit of Jason Rinardo, Courtesy's shop foreman: he stated that a loose nut is noticeable, and would have damaged the steering knuckle and made markings on the tie rod end; however, he looked at the Camaro, parked on Wilson's property, and found no such damage or markings. He also said a loose nut would not cause the car to pull to one side.

• report of James P. Reil, PE, of Engineering Design & Testing Corp., Dallas, Texas, an expert retained by Courtesy: he stated there was no way a loose tie rod could have "persisted" from manufacture until the accident; in his view, somebody intentionally removed the nut after the accident.

• affidavit of Ronald Tipton, who towed the car from the scene: when he arrived at the scene, most of the wheel assembly on the Camaro was broken, but the tie rod on the front driver's side was intact.

• affidavit of Trooper Antilley, who worked the accident: he spoke to Branson twice – at the scene, and the next day, at the hospital – and neither time did Branson say anything was wrong with the Camaro, only that he hit some water and lost control.

Courtesy also cited Mr. Finocchiaro's view that the nut was on the tie bar when the car left GM, but off when he saw it some months after the accident, but he did not know when or how it came off; he merely theorized that the nut was not "adequately tightened."

From all this, Courtesy argued there was no evidence that the nut was missing or loose when the car was sold, nobody could tell when the nut went missing, and, at any rate, the nut had nothing to do with causing the accident.

Courtesy's second motion for summary judgment addressed Wilson's claims of redhibition, breach of contract, and breach of warranty. This incorporated all the attachments and arguments of its first motion, but focused on Wilson's statement in deposition that the only thing wrong with the Camaro was that the "new car factory warranty * * * was not necessarily true." Courtesy also argued that redhibition was impossible because Wilson already got paid for the car: he had bought it for $26,000, financing it through GM Financial, including "gap" coverage; after the accident, GEICO offered him $27,000, which would have left a $4,000 balance; however, Wilson wanted to retain the salvage, so GEICO lowered its offer to $21,000, which Wilson accepted; later, GM Financial honored its gap coverage and paid the balance. In short, Wilson still owed $4,000 because he kept the wrecked car.

Courtesy also argued that the collateral source rule does not apply when the right of subrogation is involved: without evidence that GEICO's subrogation claim was waived, Wilson was not entitled to recover twice, Ellis v. Brown , 50,690 (La. App. 2 Cir. 5/18/16), 196 So. 3d 665. Courtesy attached the joint motion to dismiss GEICO; this recited a reservation of rights against Courtesy and GM, but no waiver of subrogation. It also attached the affidavit of GEICO's attorney, Marshall Pierce, who stated that GEICO did not waive, but retained, its right of subrogation.

Wilson opposed the second MSJ, asserting generally that the "missing or improperly torqued nut caused the failure" of steering and caused the ultimate crash. He also asserted that Courtesy did not properly inspect the car before selling it; committed fraud by representing otherwise; and breached every applicable duty of reasonable care. In support, he attached an NHTSA recall notice, July 2, 2014, affecting 2014 Chevy Camaros because of "improperly torqued fasteners" which may cause the lower control arm and the lower ball joint to separate.

Six months later, Wilson filed a supplemental opposition, attaching the nearly two-hour video deposition of Steve Horn, a Courtesy employee. In this, Horn stated that before the Camaro came to Courtesy, it had been an Avis rental car, and had been in a wreck in Houston, Texas, and repaired. By contrast, Wilson had stated in his deposition that nobody at Courtesy ever mentioned the wreck and repair, or gave him the Carfax report; had he known about it, he would never have bought the car. Wilson also stressed a portion of Mr. Finocchiaro's deposition stating that a loose or missing nut would cause exactly the loss of control that Branson experienced in the Camaro; he dismissed as "unsupported" Courtesy's position that the accident was a result of Branson falling asleep at the wheel.

Courtesy responded, reasserting that Wilson was fully compensated for the Camaro and GEICO had the subrogation rights; hence, there was no redhibition action. Courtesy also showed that Mr. Finocchiaro candidly admitted that he could not testify as to the standard of care applicable to auto...