Challenging A Third Party Before The Court Of Appeal
LexInter | October 25, 2005 | 0 Comments

Challenging A Third Party Before The Court Of Appeal

The company Seritel appealed in cassation against the judgment of the Court of Appeal of Rennes (4th civil chamber) dated February 17, 2000;

This judgment was quashed on December 6, 2001 by the 2nd civil chamber of the Court of Cassation;

The case and the parties were referred to the Angers Court of Appeal which, seized of the same case, ruled by judgment of 3 October 2003 in the same direction as the Rennes Court of Appeal for reasons which are in opposition to the doctrine of the judgment of cassation;

An appeal having been lodged against the judgment of the Angers Court of Appeal, the first president, by order of 24 August 2004, referred the case and the parties to the Plenary Assembly;

The plaintiff invokes, before the Plenary Assembly, the grounds of cassation annexed to this judgment;

These arguments were formulated in a brief filed with the registry of the Court of Cassation by SCP Masse-Dessen and Thouvenin, lawyer for the company Seritel;

A defense was filed with the registry of the Court of Cassation by SCP Coutard, Mayer, lawyer for the company AGF, coming to the rights of the company Allianz Via assurances, conclusions and additional observations in defense were filed with the registry of the Court of Cassation by SCP Roger and Sevaux, lawyer of the General Mutual Insurance Fund (CGAM), of Mr X .., assumed his capacity as liquidator of the insurance operations of CGAM and MY .., taken as liquidator of the judicial liquidation of CGAM;

The written report of Ms Betch, Counselor, and the draft written opinion of Mr Cedras, Advocate General, were made available to the parties;

(…)

On the two combined means:

Whereas, according to the judgment under appeal (Angers, October 3, 2003), delivered on referral after cassation, (2nd civil chamber, December 6, 2001, appeal no.00-14.991), which the real estate company Lagadec (SCI Lagadec) entrusted the construction of buildings for the company Seritel insured under a ten-year guarantee with the General Mutual Insurance Fund (CGAM); that the company Seritel has subcontracted the work of cover of the buildings to the company Drouault Godefroy, ensured by the company Allianz Via, to the rights of which is the company of insurance AGF; that, not having been fully paid, the company Seritel brought an action against SCI Lagadec before the tribunal de grande instance which ordered it to pay it a certain sum, less the costs of recovery of the disorders noted by the appointed expert in summary; that cause appeal, at the request of SCI Lagadec, a new expertise was ordered; that the company Seritel then assigned in intervention forced CGAM as well as the company Drouault Godefroy and his insurer;

Whereas the company Seritel criticizes the judgment for having declared these interventions inadmissible, then, according to the means:

1 °) that the evolution of the litigation allowing the implication of a person who was not party in first instance requires only the existence of a new element revealed by the judgment or occurred subsequently; that by excluding any evolution of the dispute under a new definition of recovery work resulting from an investigative measure instituted after the judgment undertaken and bringing their cost to an amount twenty times greater, for the reason, than the disorders since the buildings were identical and their causes were detected by the first technician, the difference between the two expert reports lay in the assessment of the work intended to remedy them, so that the legal and factual data of the dispute were not modified when

2) that the revelation of the considerable increase in the disputed interest characterizes the new element upsetting the data of the trial; that by imposing the disclosure in question of an overrun of the deductible, although it had retained that the evolution of the dispute lay in the nature and the cost of the repairs recommended by the second expert, thus adding to the ‘requirement of a new element a condition which it does not include, the Court of Appeal violated Article 555 of the new Code of Civil Procedure;

3 °) that the evolution of the litigation allowing the implication of a person who was not party in first instance requires only the existence of a new element revealed by the judgment or occurred subsequently; that by confining itself to noting, to deny any evolution of the dispute likely to justify the appeal against the insurer of the subcontractor, that the report of the second expert filed after the judgment confirmed the assessments of the first on the causes of the disorders affecting the covers, when, because of their importance, the cost of their repair as it resulted from the second appraisal measure instituted after the judgment, was estimated at a sum eighty times greater than that proposed in the first instance, which was the new and unforeseen element modifying the details of the dispute,

But given that the evolution of the dispute involving the implication of a third party before the Court of Appeal, within the meaning of article 555 of the new Code of Civil Procedure, is characterized only by the revelation of a circumstance de facto or de jure, arising from or subsequent to the judgment, modifying the legal details of the dispute;

That having noted that the disorders described in the expertises ordered at first instance and on appeal were identical and their causes detected by the first expert, the court of appeal, apart from the superabundant reason relating to the exceeding of the insurance deductible, rightly retained that the last expertise had not modified the legal data of the litigation whose evolution resided only in the nature and the cost of repairs;

From which it follows that the plea is unfounded;

FOR THESE REASONS :

DISMISSES the appeal;

ANNEXED MEANS

Resources produced by the SCP Masse-Dessen and Thouvenin, lawyer with the Councils, for the company Seritel.

FIRST MEANS OF TERMINATION

The plea criticizes the judgment under appeal, ruling on referral after cassation, for having declared a general contractor (the company Seritel, the exhibitor) inadmissible in its recourse for forced intervention brought forward in appeal against its insurer (the company CGAM);

TO REASONS THAT the company Seritel maintained that the report of expertise of Jean Estienne deposited on October 27, 1998, constituted a new fact allowing him to call in guarantee, for the first time before the Court of Appeal, his insurer; that this report drew up a list of four disorders: infiltration by garage covers, infiltration in offices, infiltration by joinery and poor functioning of gates; that the expert report of Michel Hivert, deposited on March 5, 1990, had drawn up an important list of disorders, including the four disorders noted by Jean Estienne; that the expert had considered the design of the cover of garages unsuitable for the region and criticized the roofer for insufficiently careful implementation; that he had recommended repairs amounting to 4,555 F; that, for the same disorder, Jean Estienne mainly called into question the design and incidentally the lack of precaution during the laying and advocated a complete repair of the cover for an amount of 357 500 F; that Michel Hivert had on the other hand estimated that the infiltrations in the offices found their origin in the cracking of the walls and the bad state of the acroteric covers; that he had recommended work amounting to 8,000 F; that Jean Estienne retained the same causes and added two others, secondary: poor installation of controlled mechanical ventilation and absence of seal between two bodies of buildings; that he recommended work amounting to 31,100 F; that, s’ dealing with infiltration by the joinery, Michel Hivert had recommended a revision intended to take up the defects in the amount of 3,500 F, while Jean Estienne recommended ad hoc interventions in the amount of 13,500 F; that, to remedy the malfunction of the gates which he had attributed to their size “at the limit of reasonableness”, Michel Hivert had recommended adjustment, while Jean Estienne, because of their “excessive sizing” recommended modification work in the amount of 93,300 F; that the client’s requests had followed the conclusions of these two reports: the SCI Lagadec, which had asked the tribunal de grande instance to order the Seritel company to pay it the sum of 84,993.97 F, had asked the court of appeal to condemn her to pay him that of 588,807.05 F; that the disorders affecting the buildings were identical and their causes had been detected by the expert report of Michel Hivert on which the SCI based its requests in first instance; that the two secondary causes added by Jean Estienne thereafter to explain the infiltrations in the offices did not modify indeed the essential data of the litigation, their incidence being minimal; that the difference between the two reports of expertise resided in the appreciation of the work intended to remedy the disorders, the first opting for specific solutions where the second chose the complete repair or important modifications; that the legal and factual data of the dispute were not modified; that the builder saw himself claim by the owner, on the basis of the provisions of article 1792 of the Civil Code, the repair of the same disorders and the same prejudices; that the causes of the disorders were moreover known from the expert report of Michel Hivert; that the evolution resided in the nature and the cost of the recommended repairs and in the amount of the requests of the owner of the work, elements which came under the appreciation of the damage; that such a modification of the litigation, order only quantitative, could not imply the implication of the insurer of the company Seritel only if it had the consequence of making it benefit from the guarantee; that this would have been the case if the amount of the deductible contained in the assurances signed on December 30, 1985 between the company Seritel and the company CGAM had therefore been exceeded; that this franchise was however only 10% of the amount of the claim with a minimum of thirty times the INSEE index of the cost of construction, or 30 150 F on the day of judgment; that the amount of the claims directed against the company Seritel at the stage of the first instance greatly exceeded this amount and the reasons for which the company Seritel had an interest in calling its own insurer to the cause had therefore not been modified. call; that the report of expertise of Jean Estienne and requests of the owner of the work did not constitute an evolution of the litigation such as to implicate the implication of the company CGAM; what’

ALORS THAN, on the one hand, the evolution of the dispute allowing the implication of a person who was not party in first instance requires only the existence of a new element revealed by the judgment or occurred subsequently; that by excluding any evolution of the dispute under a new definition of recovery work resulting from an investigative measure instituted after the judgment undertaken and bringing their cost to an amount twenty times greater, for the reason that, the disorders since the buildings were identical and their causes were detected by the first technician, the difference between the two expert reports lay in the assessment of the work intended to remedy them, so that the legal and factual data of the dispute were not modified ,

ALORS THAN, on the other hand, the revelation of the considerable increase of the disputed interest characterizes the new element upsetting the data of the trial; that by imposing the disclosure in question of an overrun of the excess, although it had retained that the evolution of the dispute lay in the nature and the cost of the repairs recommended by the second expert, thus adding to the ‘requirement of a new element a condition which it does not include, the Court of Appeal violated article 555 of the new Code of Civil Procedure.

SECOND SUBMISSION OF TERMINATION

The plea accuses the judgment under appeal, ruling on referral after cassation, of having declared a general contractor (the company Seritel, the exhibitor) inadmissible in its recourse for forced intervention brought forward in appeal against the insurer (the AGF company) of a subcontractor (SMT Drouault Godefroy) of the chief of the disorders reaching the roof of the structure;

TO REASONS THAN the company Seritel had called to the cause the company SMT Drouault Godefroy and its insurer, the company Allianz to the rights of which intervened the company AGF, for the first time before the jurisdiction of the second degree; that these had raised the inadmissibility of the request on the basis of Articles 544 and 555 of the new Code of Civil Procedure; that, among the causes of the disorders affecting the covers, the expert Michel Hivert had retained a defective installation and consequently attributable to the company SMT Drouault Godefroy, subcontractor of the company Seritel which had not however called it to the cause in the first place ; that the expert report of Jean Estienne, filed in appeal, had confirmed the assessments of the first expert; that he does not

ALORS THAN the evolution of the litigation allowing the implication of a person who was not party in first instance requires only the existence of a new element revealed by the judgment or occurred subsequently; that by confining itself to noting, to deny any evolution of the dispute likely to justify the appeal against the insurer of the subcontractor, that the report of the second expert filed after the judgment confirmed the assessments of the first on the causes of the disorders affecting the covers, when, because of their importance, the cost of their repair, as it resulted from the second appraisal measure instituted after the judgment, was estimated at a sum eighty times greater than that proposed at first instance, which constituted the

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