DocketNumber: Civ. A. No. 90-1002
Citation Numbers: 799 F. Supp. 619
Judges: Sear
Filed Date: 7/30/1992
Status: Precedential
Modified Date: 11/26/2022
MEMORANDUM AND ORDER
On October 17,1990, Gulf States Utilities Company (“GSU”) filed this action against IMO Industries, Inc. (“IMO”)
Facts
GSU owns and operates a nuclear power generating plant, which is subject to the regulations of the Nuclear Regulatory Commission (“NRC”).
The two basic components of a standby generator system are the diesel engine and the generator. The generator converts the diesel engine shaft power into electrical power.
In designing its plant in 1974, GSU asked IMO to submit a proposal to furnish two standby diesel generator systems in accor
IMO previously had provided three similar standby diesel generator systems to the Long Island Lighting Company for use at their Shoreham Nuclear Power Station (“Shoreham”). In August 1983, during testing, the crankshaft in one of the diesel engines failed. Thereafter, the NRC notified all utilities that owned IMO standby generator systems of the Shoreham crankshaft failure. In response, utilities with IMO standby generator systems formed an Owner’s Group, to examine the design of the system and make the necessary modifications to satisfy the NRC. GSU alleges that it had to review the design of the system and engage in a quality revalidation process. Ultimately, GSU allegedly modified its system and de-rated the engines from 3500 kw, as called for in its Specifications, to 3130 kw. At this lower capacity, GSU obtained the necessary license from the NRC and commenced commercial operation on June 16, 1986.
Analysis
I. Contract of Sale v. Contract to Build
IMO moves for summary judgment dismissing GSU’s claim as prescribed. IMO contends that, under Louisiana law, the contract is one for the sale of a thing, subject to a one year prescriptive period and that this period expired prior to the filing of this suit.
The Louisiana Civil Code divides conventional obligations into obligations to give (i.e., a sale) and obligations to do (i.e., a contract to build). Further, the Code defines each:
The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.13
To build a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price. A person who undertakes to make a work, may agree, either to furnish his work and industry alone, or to furnish also the materials necessary for such work.14
To support its contention that the contract is one to build, GSU emphasizes that IMO was to “design and manufacture” the equipment to these specifications.
In the contract, IMO agreed to furnish various types of equipment that met certain, detailed specifications.
Significantly, with regard to the diesel engines, the only equipment of which GSU complains, IMO offered its commercial-grade R-48 diesel engines from its stock.
Finally, the contract provides for GSU, not IMO, to install or erect the system.
Although the contract required GSU to install the equipment, IMO offered to furnish the services of an engineer, at the request of GSU, to assist in erecting the system
Where a contract contains both obligations to give (i.e., sell) and obligations to do (i.e., provide services), “the contract as a whole may be characterized by its predominate or fundamental obligation.”
IMO’s participation in the installation of the system consisted of making some of the necessary repairs and modifications to obtain NRC approval, and supervising the repairs and modifications performed by GSU personnel or engineers hired by GSU.
II. Redhibition
Under Louisiana sales law, if the thing sold contains a vice or defect, the buyer has a claim in redhibition.
GSU complains of defects in the standby generator system and of the loss of power capacity. The standby generator systems were placed in commercial operation at their de-rated capacity on June 16, 1986.
III. GSU’s “Contractual” Claims
To avoid this result, GSU argues that its claim does not lie in redhibition, rather it claims IMO breached the contract. For example, GSU claims that IMO breached its express contractual warranties. In the contract, IMO warranted that the equipment would be free from defects in design, workmanship and material and would be suited for its intended purpose. IMO also warranted that the equipment would perform in accordance with the specifications.
The general rule is that, under Louisiana law, damages caused by a breach of warranty in a sales contract are regarded as founded upon redhibition and subject to the rules and limitations in redhibition.
For instance, Peoples Water Service Co. v. Menge Pump and Machinery Co., Inc.,
This action resembles Peoples in that, in both, the buyer prepared detailed specifications for the product it desired and the sellers offered to furnish a product with those specifications. Further, in both, the seller ultimately furnished an “off the shelf” product. In Peoples, however, the seller’s proposal made “[n]o mention of a specific standard pump model or pump manufacturer.”
Moreover, GSU’s claim arises from a “defect,” not from a failure to provide the product contracted for. GSU has identified numerous defects in the engine’s crankshaft.
GSU contends that the United States Fifth Circuit’s decision in Seafoam, Inc. v. Barrier Systems, Inc.,
Those claims for breach of warranty found to lie in redhibition include claims for breach of a warranty that the equipment or materials furnished would comply with federal regulations and specifications,
GSU further attempts to state a claim for breach of contract on grounds that IMO breached the affirmative obligations it assumed in the contract. For support, GSU attempts to characterize IMO’s obligations as obligations to do. In determining whether the contract is one for sale or one to build, the obligations assumed by IMO in the contract must be examined. In so doing, I find that IMO obligated itself to give (i.e., sell), not to do.
IV. Redhibition does Apply
Finally, GSU unartfully argues that its claim does not lie in redhibition. GSU apparently implies that, if its claim does not lie in redhibition, the foregoing analysis and law cannot apply. GSU erroneously argues that its claim does not lie in redhibition because the law of redhibition does not encompass the allegations it makes and does not provide the relief it seeks.
1. GSU’s claim
GSU has identified numerous defects in the crankshaft of the engine.
GSU asked IMO submit a proposal to furnish two standby diesel generator systems in accordance with Specification No. 244.700, which set forth the required design specifications. By submitting such a proposal, IMO “represented” that it could provide a standby generator system that satisfied the specifications. In other words, IMO “represented” that its system would possess a certain quality, that is, that it would perform in satisfaction of the specifications. GSU claims that the system sold does not possess this quality. A representation by a seller that the thing sold has some quality that the thing in fact does not have gives rise to a claim in redhibition.
2. The relief GSU seeks
GSU alleges that, because the standby generator system did not satisfy the specifications, it had to engage in a design review and quality revalidation process and had to repair and modify the system. GSU seeks to recover the costs incurred in its review and testing of the system, and the cost to repair the system so that it satisfied the specifications. Again, as the manufacturer of the thing sold, IMO is presumed to know its defects, the defect being that the system did not satisfy the specifications. A seller who knows of the defect and omits to declare it owes, among other things, repayment of expenses and damages.
Further, GSU represents that the system is now operable, but only at a reduced capacity. GSU also seeks to recover for the loss of standby power capacity. GSU claims that the standby generator system,
Thus, the law of redhibition provides all the relief GSU seeks. Under the law of redhibition, GSU can recover the cost incurred in modifying the system so that it satisfied the specifications, and GSU can obtain a reduction in the purchase price for the loss of power capacity. A claim for reduction in purchase price is governed by the same rules and the same limitations as a redhibitory action.
Because GSU filed its claim against IMO after the applicable prescriptive period had expired,
IT IS ORDERED that IMO’s motion for summary judgment is GRANTED.
. IMO was formerly named IMO Delaval, Inc. and Transamerica Delaval, Inc.
. GSU’s statement of material facts no. 1 and IMO's answer, admitting same.
. These background facts are included to assist in understanding the contract and claim asserted in this case.
. IMO’s uncontested facts no. 5; GSU answer.
. IMO’s exhibit no. 1 is the request from GSU. GSU’s exhibit “A” is Specification No. 244.700.
. IMO’s exhibit no. 3.
. IMO’s exhibit no. 4.
. See IMO uncontested fact no. 6 and GSU’s answer; GSU’s exhibit "C,” "D," and IMO exhibit no. 5.
. IMO's uncontested facts nos. 13-18, 22; GSU’s answer nos. 13-18, 22.
. Complaint ¶¶ 19-21.
. La.Civ.Code art. 2534.
. Id. art. 3499.
. Id. art. 2439.
. Id. arts. 2756-2757.
. Affidavit of GSU representative John Hamilton ¶ 5.
. GSU Exhibit A, the Specification.
. IMO uncontested fact no. 4, GSU denies this fact but offers no evidence to the contrary. Indeed, the contract documents support this contention, see IMO proposal, IMO exhibit no. 3, p. 1017296, ¶ 13 ("The equipment contemplated to be furnished hereunder, other than those items normally purchased from others, may be manufactured ... ”) (emphasis added); Affidavit of Alan Barich ¶ 2; GSU Purchase Order, IMO exhibit no. 4, p. 2 (suggesting same). None of the evidence supplied addresses whether IMO in fact designed or manufactured any equipment or purchased such equipment from other vendors.
. IMO exhibit no. 3.
. Id.
. IMO uncontested fact no. 5; GSU answer; IMO exhibit no. 2, ¶ 4 (affidavit of Alan Barich).
. Affidavit of GSU representative John Hamilton ¶ 5; GSU Purchase Order, IMO exhibit no. 4, p. 4.
. GSU Affidavit of John Hamilton; IMO Affidavit of Alan Barich.
. GSU exhibit A (the Specifications).
. GSU Purchase Order, IMO exhibit no. 4, p. 5; GSU Affidavit of John Hamilton ¶ 5.
. GSU Exhibit D; GSU Affidavit of John Hamilton ¶ 10.
. Austin's of Monroe, Inc. v. Brown, 474 So.2d 1383, 1387 (La.App.2d Cir.1985); see also Calandro's Supermarket, Inc. v. Hussman Refrigeration, Inc., 525 So.2d 316, 319 (La.App. 1st Cir.1988).
. Calandro's Supermarket, 525 So.2d at 319; see also Tidewater, Inc. v. Baldwin-Lima Hamilton Corp., 410 So.2d 355, 357 (4th Cir.1982); FMC Corp. v. Continental Grain Co., 355 So.2d 953, 957 (La.App. 4th Cir.1977).
. GSU Affidavit of John Hamilton, ¶ 22.
. See Calandro's Supermarket, 525 So.2d at 318-19; FMC Corp., 355 So.2d at 955-57 (finding a contract to be a sale where seller designed and installed equipment).
. La.Civ.Code art. 2520.
. Id. art. 2534.
. Id. art. 2546.
. E.g., Melancon v. Continental Oil Co., 420 So.2d 1251, 1253 (La.App.3d Cir.1982).
. IMO uncontested fact no. 22, GSU answer.
. IMO uncontested fact no. 7, GSU answer; IMO exhibit no. 6 (excerpt of the Specification) and no. 7 (GSU’s answer to interrogatory no. 24).
. PPG Indus., Inc. v. Industrial Laminates Corp., 664 F.2d 1332, 1335 n. 5 (5th Cir.1982); Austin v. North American Forest, 656 F.2d 1076, 1083 (5th Cir.1981); Melancon v. Continental Oil Co., 420 So.2d 1251, 1253 (La.App.3d Cir.1982); Molbert Bros. Poultry & Egg Co. v. Montgomery, 261 So.2d 311, 314 (La.App.3d Cir.), writ denied, 263 So.2d 46 (La.1972).
. See Seafoam, Inc. v. Barrier Systems, Inc., 830 F.2d 62 (5th Cir.1987); Delta Refrigeration Co. v. Upjohn Co., 432 F.Supp. 124 (W.D.La.1977), aff'd, 575 F.2d 879 (5th Cir.), cert. denied, 439 U.S. 984, 99 S.Ct. 574, 58 L.Ed.2d 655 (1978); Harkins v. Howard Lumber Co., Inc., 460 So.2d 772 (La.App.3d Cir.1984)
. 452 So.2d 752 (La.App. 5th Cir.), writ denied, 456 So.2d 1391 (La.1984).
. Peoples, 452 So.2d at 753.
. See GSU response to interrogatory no. 22, IMO exhibit no. 6.
. 830 F.2d 62 (5th Cir.1987) (summary calendar). See also PPG Indus., Inc. v. Industrial Laminates Corp., 664 F.2d 1332, 1335 n. 5 (5th Cir.1982) (suggesting that Delta Refrigeration Co. v. Upjohn Co., 575 F.2d 879 (5th Cir.1978), on which Seafoam heavily relies, may have misapplied Louisiana law).
. Austin v. North American Forest, 656 F.2d 1076, 1079 (5th Cir.1981).
. PPG Indus., 664 F.2d at 1334.
. Melancon v. Continental Oil Co., 420 So.2d 1251, 1253 (La.App.3d Cir.1982).
. See supra p. 3-7.
. GSU exhibit A (the Specifications) p. 1-87.
. Id.
. See GSU response to interrogatory no. 22, IMO exhibit no. 6.
. La.Civ.Code art. 2520.
. Reiners v. Stran-Steel Corp., 317 So.2d 657, 660 (La.App.3d Cir.), writ denied, 320 So.2d 914 (La.1975). Cf. La.Civ.Code art. 2529.
. La.Civ.Code art. 2545.
. See, e.g., Monk v. Oakdale Motors, Inc., 544 So.2d 98, 100 (La.App.3d Cir.1989).
. See Austin v. North American Forest, 656 F.2d 1076, 1083 (5th Cir.1981) (thing sold did not satisfy specifications, court considered "defect” to be lesser quality than represented). See also Freiler v. Reliable Soil Co., 224 So.2d 177 (La.App. 4th Cir.1969) (characterizing a “defect" that the thing sold could not perform as represented as affecting the "quality”).
. GSU affidavit of John Hamilton ¶ 20.
. La.Civ.Code art. 2542.
. La.Civ.Code art. 2544.