State of Louisiana Court of Appeal, Second Circuit (Shreveport)

Case Number: 51,537-CA

Judge: Roy Moore

Court: State of Louisiana Court of Appeal, Second Circuit (Shreveport)

Plaintiff's Attorney: Chris W. Caswell
D. Scott Rainwater

Defendant's Attorney: J. Rodney Pierre

Description: Ms. Jackson, an attorney and the proprietor of Good Samaritan
Funeral Home, bought an LG refrigerator from Lowe’s Home Center on
Airline Drive in Bossier City in June 2014. Lowe’s employees delivered it to
her house, in Oak Alley Subdivision in Bossier City, on June 13. According
to her petition, Ms. Jackson immediately discovered during the installation
that it was not the counter-depth unit that she expected.1 That evening, she
went back to Lowe’s and bought another LG fridge, one that would fit
properly, and Lowe’s employees delivered it on June 14. When they
removed the first fridge, Ms. Jackson saw a pool of water on the floor under
it and some dampness on the walls around it. She phoned the store manager,
who came out to inspect, and said the moisture was condensation. The
employees wiped up the puddle and installed the second fridge.
A few days later, however, Ms. Jackson discovered several planks of
the reclaimed wood flooring in her kitchen and family room were warped.
She called a plumber, who inspected and told her that both fridges had been
improperly installed – the icemaker line was not correctly attached to the
water line. Ms. Jackson then phoned Lowe’s manager, who sent Custard
Insurance Adjusters to the house; Custard confirmed that the damage

1 In Ms. Jackson’s deposition, taken in November 2015, she said it was actually her mother who was present when the delivery crew arrived, and allowed them to install the wrong-size refrigerator.
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resulted from faulty installation, and hired DKI, an emergency repair
service, to extract the water from the wood floors. According to Ms.
Jackson’s petition, the extractors were placed in the kitchen and family
room, making it impossible for her to use either room. In addition, the
machines made such an “unbearable” noise that she had to vacate the house,
incurring hotel and meal expenses.
After nine days of extraction, Custard decided the floors could not be
repaired. According to Ms. Jackson’s petition, Lowe’s did not answer her
informal demands to pay the cost of removal and replacement.
PROCEDURAL HISTORY
Ms. Jackson filed this suit, in proper person, against Lowe’s Home
Centers, in June 2015. She also named “Insurance Company A” as a
defendant, but never joined any insurer. In addition to demanding costs of
replacement, moving and storage, and cleaning, she alleged that because she
could not stay in the house, she incurred costs for hotels and meals. She also
demanded damages for mental anguish and attorney fees.
Lowe’s filed an exception of no cause of action as to the demand for
penalties and attorney fees: because Lowe’s was not an insurer, it could not
be liable for bad-faith adjustment of claims, La. R.S. 22:1892 and 1973.
Lowe’s then filed a motion for partial summary judgment as to the
demand for lost wages and mental anguish. In support, it filed portions of
Ms. Jackson’s deposition in which she testified that during the four months
it took to replace the floor, she could not stay in the house, so she took a 28
day trip to Chicago, followed by short trips to Turks & Caicos, Miami, San
Francisco and Los Angeles, San Antonio, and, finally, to Beverly Hills (for a
“getaway weekend”); she felt that these trips caused her to lose between
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$95,000 and $120,000 in wages and profits. Lowe’s argued that no reported
case had ever approved lost wages as an element of damages for a property
damage claim without bodily injury, and thus the award was not legally
recognized. However, even if it were, Ms. Jackson could not meet the high
standard of proving lost wages: “a plaintiff must prove that he would have
been earning wages but for the accident in question,” Boyette v. United
Services uto. ss’n, 2000-1918 (La. 4/3/01), 783 So. 2d 1276. Lowe’s
contended that by her own testimony, Ms. Jackson “voluntarily vacationed
for reasons unrelated to the incident sued upon.”
Ms. Jackson retained counsel and opposed both the exception and the
MPSJ. As to lost wages, she argued she was entitled to all damages flowing
from the defendant’s conduct, under La. C.C. arts. 2316 and 2317, and these
included lost wages. In support, she cited Orellana v. Louisiana Citizens
Prop. Ins. Corp., 2007-1095 (La. App. 4 Cir. 12/5/07), 972 So. 2d 1252, writ
denied, 2008-0041 (La. 10/24/08), 25 So. 3d 777. Further, “when she could
not live in the house, plaintiff was absent from work” and she “coordinated
trips outside the city when construction work would last five days or more.”
She attached the affidavit of a CPA, Thomas Youngblood, which did not
state a dollar amount of economic loss, but referred to computer-generated
profit-and-loss statements for the funeral home and for Ms. Jackson’s law
practice, covering the years 2014, 2015 and part of 2016.2
At a hearing in November 2016, the parties submitted the exception
and the MPSJ on brief. Counsel for Ms. Jackson conceded that Lowe’s

2 She also attached Custard’s estimate to repair and replace the floors, $18,417, and her own interior designer’s estimate to redecorate the whole house, $58,614. In addition, she filed copies of receipts from her hotel stays, including charges such as a $518 “spa treatment” one day at Ritz-Carlton in Dallas, a $632 “massage” at Four Seasons in Chicago, and a $291 “pool bar” charge at Parrot City, Turks & Caicos.
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“might be right” on the exception of no cause. He again cited Orellana and
argued that “by analogy, Ms. Jackson’s loss of wages is tethered to the
negligence of the defense[.]” Counsel for Lowe’s countered that Orellana
involved an insurer subject to R.S. 22:1973; because Lowe’s is not an
insurer, it cannot be liable for bad-faith damages.
ACTION OF THE DISTRICT COURT
The court stated that, on close review, Ms. Jackson’s petition alleged
many items of damages, but “lost wages are not anything that ever is
addressed.” Further, the court found no “affidavits from anybody asserting
any type of lost wages, what the amount of those would be, no expert
provided anything * * *, there’s nothing to support any claim for lost
wages.” Counsel for Ms. Jackson mentioned the “affidavit in the record with
respect to lost wages,” but the court replied that this item of damage was not
asserted in the original or any supplemental petition; in addition, there was
inadequate proof. The court noted Ms. Jackson’s objection for the record.
The court rendered judgment sustaining the exception of no cause of
action and granting the motion for partial summary judgment. The court
later certified this as immediately appealable, under La. C. C. P. art. 1915 B.
Ms. Jackson has appealed, contesting only the grant of summary
judgment as to her claim for lost wages and profits. She advances two
assignments of error.
DISCUSSION
By her first assignment of error, Ms. Jackson urges her claim for lost
wages and profits was protected under La. C. C. P. art. 1154 once the
defendant acknowledged and received notice of the claim. Citing La. C. C.
P. art. 966 B(2), she contends that she need produce only a genuine issue of
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material fact for trial, Monroe Surgical Hosp. LLC v. St. Francis Med. Ctr.,
49,600 (La. App. 2 Cir. 8/21/14), 147 So. 3d 1234, writ denied, 2014-1991
(La. 11/21/14), 160 So. 3d 975. She cites her deposition testimony that the
renovations caused her to leave work and stay with relatives, or in hotels
“outside the city,” and her “tax returns” as sufficient proof of causation and
damages to withstand the MPSJ. She does not mention that she omitted lost
wages from her petition, but argues that once Lowe’s filed the MPSJ as to
that very issue, the pleadings were expanded under Art. 1154 to include it.
Lowe’s responds that Art. 1154 does not apply, as Ms. Jackson never
properly advised the district court that she had economic damage.
When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as if they
had been raised by the pleading. La. C. C. P. art. 1154. The law takes a
liberal approach toward allowing amended pleadings in order to promote the
interests of justice. Reeder v. North, 97-0239 (La. 10/21/97), 701 So. 2d
1291. Amendment of pleadings should be liberally allowed, provided the
mover is acting in good faith, the amendment is not sought as a delaying
tactic, the opponent will not be unduly prejudiced, and trial of the issues will
not be unduly delayed. ibernia at’l Bank v. ntonini, 33,436 (La. App. 2
Cir. 8/23/00), 767 So. 2d 143.
In Grant v. Boh Bros. Const. Co., 2000-1227 (La. App. 4 Cir.
4/25/01), the plaintiffs sued AIG Consultants, alleging breach of a
contractual duty to provide safety inspections and a safe workplace for Boh
Brothers’ employees. AIG moved for summary judgment, urging that its
contract did not provide for this, but also that it never assumed the duty to
provide such services. The plaintiffs opposed, arguing that AIG did in fact
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assume the duty. The district court granted AIG’s summary judgment,
finding no contractual duty, but declined to consider the issue of assumption
of duty. On appeal, the Fourth Circuit found that because both parties had
raised the issue and offered summary judgment evidence for and against it,
the pleading was expanded under Art. 1154. The Fourth Circuit considered
the question of assumption of duty de novo (ultimately affirming the
summary judgment).
The instant case is similar. Ms. Jackson’s petition did not claim lost
wages and profits as an element of damages. However, Lowe’s moved for
partial summary judgment specifically to “dismiss plaintiff’s claims for lost
wages.”3 Ms. Jackson’s opposition argued she was entitled “to all other
losses related to the tortfeasor’s negligence,” and she attached her CPA’s
affidavit purporting to express a “professional opinion with respect to
economic losses” suffered by the funeral home and the law practice. Both
parties, therefore, raised the issue by MPSJ and argued it. As in Grant v. Boh
Bros., supra, the court erred in refusing to consider the pleadings expanded
to encompass the issue. Ms. Jackson’s first assignment of error has merit.
By her second assignment of error, Ms. Jackson urges that lost wages
and profits are recoverable for breach of contract or for defective work. She
cites La. C.C. arts. 1994 (“Obligor liable for failure to perform”), 1769
(“Contractor’s liability for noncompliance with contract”), 2315 (“Liability
for acts causing damage”) and 2316 (“Negligence, imprudence or want of
skill”), and argues that a breach of contract can indeed give rise to tort
liability, as in Platt v. Interstate Dodge, 37,059 (La. App. 2 Cir. 4/9/03), 843

3 In light of this filing, it is somewhat disingenuous for Lowe’s now to contend that the issue of lost wages was not placed before the court.
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So. 2d 1178, and K&J Refrigeration v. Bowman, 41,098 (La. App. 2 Cir.
5/17/06), 930 So. 2d 1141. She contends that Lowe’s has never disputed that
it negligently installed the refrigerators, or that it is liable for damage to her
hardwood floors; by the same reasoning, she submits, Lowe’s is also liable
for her lost wages. She asks the court to reverse and remand.
Lowe’s responds that the standard of proving lost wages is the but-for
test enunciated in Boyette v. nited Services uto ss’n, supra, and applied
by this court in Whited v. Home Depot USA Inc., 27,938 (La. App. 2 Cir.
8/3/96), 712 So. 2d 97. It reiterates that the summary judgment evidence
fails to show that the property damage prevented or precluded her from
working; rather, it shows that she voluntarily vacationed, for reasons totally
unrelated to the property damage. It also asserts that no case has ever
extended the scope of negligent repairs to encompass lost wages, and
requests affirmance.
A motion for summary judgment is a procedural device used when
there is no genuine issue of material fact for all or part of the relief prayed
for by a litigant. Bank of New York Mellon v. Smith, 2015-0530 (La.
10/14/15), 180 So. 3d 1238. Appellate review of summary judgments is de
novo, with the appellate court using the same criteria that govern the district
court’s determination of whether summary judgment was appropriate, i.e.,
whether there is any genuine issue of material fact, and whether the mover is
entitled to judgment as a matter of law. La. C. C. P. art. 966 A(3); Bank of
New York Mellon v. Smith, supra, and citations therein.
To recover for actual wage loss, a plaintiff must prove that she would
have been earning wages but for the accident in question. Boyette v. United
Services uto. ss’n, supra; Young v. Marsh, 49,496 (La. App. 2 Cir.
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11/19/14), 153 So. 3d 1245. In order to be awarded past wages, the plaintiff
must prove positively that she would have been earning the wages but for
the accident in question. Boyette v. nited Services uto. ss’n, supra. The
award can include only those wages lost because of the accident, not any lost
for other, unrelated reasons, such as termination for sleeping on the job or
for misconduct and theft. Lewis v. State Farm Ins. Co., 41,527 (La. App. 2
Cir. 12/27/06), 946 So. 2d 708; Corder v. Lively, 39,780 (La. App. 2 Cir.
6/29/05), 907 So. 2d 824.
The summary judgment evidence, viewed de novo, does not establish,
as a matter of law, that but for Lowe’s negligence in installing the
refrigerators Ms. Jackson would have been earning wages and profits. She
stated in deposition that because of the repair work, she had to leave her
house intermittently between June 2014 and April 2015. During these times
she went to various out-of-town destinations, but she never said why she had
to leave town and neglect her business interests. Her purported explanation
was somewhat circular:
If you’re not able to live in your home and you’re traveling during the time period of people coming in to renovate the home, I’m not at work. I can’t – I can’t make money if I’m not at work, if I’m traveling.

In short, the summary judgment evidence does not establish the
necessary causation between Lowe’s conduct and Ms. Jackson’s claimed
loss of wages and profits; it shows that she elected to travel and take
business losses. With this lack of evidence to create a genuine issue for trial,
Lowe’s is entitled to judgment as a matter of law.4

Outcome: For the reasons expressed, the partial summary judgment is affirmed.
Ms. Jackson is to pay all costs.

AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

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