Opinion
Civil Action No: 03-3643, SECTION: "J" (2).
January 26, 2005
ORDER AND REASONS
Before the Court is Defendant's Motion for Partial Summary Judgment And Motion for Summary Judgment. The motion is opposed. After reviewing the motion, opposition and the record, the Court finds that Defendant's motion for summary judgment should be DENIED and Defendant's motion for partial summary judgment should be GRANTED.
Rec. Doc. 34.
Rec. Doc. 38.
BACKGROUND
In October of 2002, Charlotte Sorina-Washington ("Plaintiff") rented a mobile self-storage unit from Defendant. Plaintiff rented the unit to store numerous contents of her home while her home was being renovated. At the time the unit was delivered, Plaintiff signed an "Off-Site Rental Agreement." Subsequently, Plaintiff was deployed for military duty. On March 17, 2003, Plaintiff was notified by her housing contractor, who had access to the storage unit, that the unit appeared to have a roof leak. On the same day, Plaintiff contacted Defendant and provided a contact person, Fran Compass ("Compass"), so that Defendant could gain access to the unit and make repairs. The parties dispute whether Defendant contacted Compass and/or made repairs to the unit. Plaintiff alleges that because of the leak, the property she stored in the unit was ruined.Defendant contends that prior to the incident involving the alleged leak, Defendant attempted to contact Plaintiff regarding past due rental payments, but the phone number provided had been disconnected. Defendant asserts that a notice of repossession was sent to Plaintiff's home on February 3, 2003, and a second repossession letter was sent to Plaintiff's home on May 2, 2003. Ultimately, on June 6, 2003 Defendant retrieved the unit from Plaintiff's home and brought it to its branch location. Plaintiff disputes the facts alleged by Defendant pertaining to the repossession. On December 31, 2003, Plaintiff filed this lawsuit alleging that Defendant is liable for damages to her property resulting from Defendant's negligence. Plaintiff also alleged that Defendant wrongfully repossessed her belongings.
Complaint for Damages — Negligence (Rec. Doc. 1).
On October 14, 2004, Defendant filed a motion for summary judgment, which was heard in open court on Wednesday, November 10, 2004. At the hearing, the Court focused on whether Plaintiff waived any implied warranty that existed in the lease. During the hearing, counsel for Plaintiff conceded that the "Off-Site Storage Agreement" contains language that explicitly and clearly waives any implied warranty under Louisiana law. However, Plaintiff's counsel asserted that Plaintiff was never provided with a copy of the "Off-Site Storage Agreement." The Court found that there was insufficient evidence demonstrating that the "Off-Site Storage Agreement" was provided to Plaintiff, and the Court denied Defendant's motion for summary judgment.
Motion for Partial Summary Judgment, Ex. "E", pp. 20-21. (Rec. Doc. 34).
Motion for Partial Summary Judgment, Ex. "E", p. 21. (Rec. Doc. 34).
Motion for Partial Summary Judgment, Ex. "E", pp. 24-25. (Rec. Doc. 34).
At the hearing, counsel for Defendant requested whether the Court would entertain an argument pertaining to a "contents value limitation" clause, which is located in the "Off-Site Rental Agreement." The Court advised counsel that the issue was not before the Court, but counsel could file a motion addressing that issue, which Defendant has briefed in its Partial Motion for Summary Judgment.
STANDARD OF REVIEW
Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party bears the initial burden of demonstrating to the court that there is an absence of genuine factual issues. Once the movant meets that burden, the non-moving party must produce evidence sufficient to establish that there is a genuine issue of material fact in dispute. Accordingly, a factual controversy exists when both parties have submitted evidence of contradictory facts. On summary judgment, factual controversies are resolved in favor of the non-moving party.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Fed.R.Civ.Proc. 56(c)).
Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992).
Id.
Little, 37 F.3d at 1075.
Id.
DISCUSSION
A. SUMMARY JUDGMENTDefendant's summary judgment motion addresses the Court's concern over the factual issue presented at oral argument, namely, whether Plaintiff received a copy of the "Off-Site Storage Agreement." If Plaintiff received a copy of the "Off-Site Storage Agreement" and it was brought to Plaintiff's attention, then summary judgment is appropriate. However, if Plaintiff did not receive a copy of the agreement, an implied warranty of fitness may allow recovery by Plaintiff. As stated by the Louisiana Fifth Circuit Court of Appeal, "for a waiver of implied warranty to be effective, it must be 1) written in clear and unambiguous terms; 2) contained in the written contract; and 3) brought to the attention of the buyer or explained to him." In its Motion for Summary Judgment, Defendant refers to the (1) the language contained in the "Off-Site Rental Agreement", which references the "Off-Site Storage Agreement" and (2) the language contained in the Prices Terms document, which references the TERMS AND CONDITIONS portion of the "Off-Site Storage Agreement". Defendant asserts that Plaintiff received a copy of the "Off-Site Storage Agreement" as evidenced by Plaintiff's signatures on the "Off-Site Rental Agreement" and the Prices Terms document. To rebut this evidence, Plaintiff declares (in an unsigned affidavit attached to her opposition) that she "was never given the bulk of the rental agreement that was to have accompanied the face sheet" and she "saw the Off-Site Storage Agreement referenced in [her] deposition for the first time at [her] deposition." Additionally, Plaintiff points out that when asked in her deposition whether she recalled receiving a copy of the "Off-Site Storage Agreement," Plaintiff responded "No."
See Gulf American Industries v. Airco Industrial Gases, 573 So. 2d 481, 488 (La.App. 5 Cir. 1990) (citing Prince v. Paretti Pontiac Company, Inc., 281 So. 2d 112 (La. 1973); Hendricks v. Horseless Carriage, Inc., 332 So. 2d 892 (La.App. 2 Cir. 1976); Reilly v. Gene Ducote Volkswagen, Inc., 549 So. 2d 428 (La.App. 5 Cir. 1989)).
Self-serving affidavits employed to create material facts should be carefully scrutinized by the court. The Fifth Circuit has held that "[u]nsubstantiated assertions are not competent summary judgment evidence." "Likewise, `[m]ere conclusory allegations are not competent summary judgment evidence and are insufficient to overcome a summary judgment motion.'" Although the Court has carefully considered the self-serving testimony of Plaintiff, the Court finds that Defendant has not sufficiently demonstrated that the waiver of implied warranty was brought to the attention of Plaintiff or explained to her. Therefore, Defendant's Motion for Summary Judgment should be DENIED.
See Vais Arms, Inc. v. Vias, 383 F.3d 287, 294 (5th Cir. 2004) (finding affiant's self-serving statements in his affidavit insufficient to raise a genuine issue of material fact).
Hugh Symons Group, PLC v. Motorola, Inc., 292 F.3d 466, 468 (5th Cir. 2002) (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hall v. Gillman, Inc., 81 F.3d 35, 36-37 (5th Cir. 1996).
Id.; see also Kimball v. Union Pac. R.R. Co., No. 02-2637, 2003 U.S. Dist. LEXIS 5534 (E.D. La. Apr. 3, 2003) (conclusory and self-serving affidavit found incompetent summary judgment evidence).
B. PARTIAL SUMMARY JUDGMENT
In the alternative to its motion for summary judgment, Defendant argues for partial summary judgment. Specifically, Defendant asserts that the terms of the contract limit Plaintiff's recovery to a maximum of $2,560.00. Paragraph H. 7. of the "Off-Site Rental Agreement" provides a maximum contents value limitation of $2,560.00 per container for an 8' × 20' container. Once again, the Court notes that Plaintiff received a copy of the "Off-Site Rental Agreement," as indicated by Plaintiff's signature on the bottom of the document.
It is well settled under Louisiana law that a contract is the law between the parties. Further, it is also well established that limitation of liability clauses are valid and not contrary to public policy. As such, the value limitation contained in the "Off-Site Rental Agreement" is valid and enforceable under Louisiana law. Plaintiff argues that some of the damage to her property arose out of the extra-contractual fault of Mobile Mini as a result of the "unlawful seizure that occurred due to the mistake of Mobile Mini in misapplying payments." Plaintiff mistakenly construes her claim for the allegedly inappropriate removal of the storage unit as extra-contractual. The Court finds that the removal of the storage unit (and any damage that may have resulted during its removal) is subject to the terms of the "Off-Site Rental Agreement," and, as such, is covered by the "MAXIMUM CONTENTS VALUE LIMITATION PER CONTAINER" found in Paragraph H. 7. As such, any damage that might have resulted in the transportation of the container is subject to the value limitation agreed upon by the parties. Therefore, Defendant's Motion for Partial Summary Judgment should be GRANTED. Accordingly,
Stamper v. Liberty Mutual Ins. Co., No. 03-2764, p. 1 (La.App. 1 Cir. 10/29/04), 2004 WL 2415426, at *2.
Soileau Coreil v. Trans Western Pub., 542 So. 2d 198, 199 (La.App. 3 Cir. 1989) (citing Louisiana Shoes Inc. v. South Central Bell Telephone Co., 445 So. 2d 1304 (La.App. 5 Cir. 1984)).
Plaintiff's Opposition to Defendant Mobile Mini, Inc.'s Motion for Partial Summary Judgment and Motion for Summary Judgment, p. 1. (Rec. Doc. 38).
IT IS ORDERED that Defendant's Motion for Summary Judgment should be and hereby is DENIED; IT IS FURTHER ORDERED that Defendant's Motion for Partial Summary Judgment is GRANTED.