Court holds real estate agents representing sellers are not required to investigate the seller’s representations about the property.

Generally, a provision in a construction contract for private work limiting the contractor's right to recover additional costs arising from delays outside of the contractor's control may be enforceable. However, under the Public Bid Law, such a provision has been found to be against public policy. La. R.S. 38:2216 prohibits any public contract provision that purports to waive, release or extinguish the rights of a contractor to recover delay damages if the delay was caused in whole or in part by the acts or omission of the public entity.

A recent First Circuit decision struck down a contract provision that purported to limit a contractor's right to damages in a public contract. In F.H. Myers Const. Corp. v. State, Div. of Admin. Office of Facility Planning & Control, 2013-2153 (La.App. 1 Cir. 6/18/14), reh'g denied (July 22, 2014), a general contractor brought an action against the State for breach of contract, seeking payments for extended-fixed job site overhead.

The State argued that the contract contemplated that the contractor could recover extended-fixed job site overhead only if there was a complete stoppage of work solely attributable to the State. The contractor argued that the contract provision was in violation of La. R.S. 38:2216.

The court found that La. R.S. 38:2216 contemplates that a contractor who is a party to a public contract shall be able to recover for any delay they may suffer from the fault of the State entity. Because the contract waived the contractor's rights to seek damages for extended-fixed job site overhead for any delay short of a complete stoppage of work, the contract imposed a stricter limit on damages than the statute allows. The court also noted that the contract only allowed for damages where the State was 100% at fault, whereas the statute allows recovery even if the State is only partially at fault. As such, the provisions at issue were held to be void and unenforceable.

The Louisiana Supreme Court recently ruled that a co-defendant who pleads comparative fault as an affirmative defense may appeal a summary judgment that dismisses a co-defendant, even when the plaintiff did not file an appeal. The Court’s decision in Amedee v. Aimbridge Hospitality resolved a circuit split among the Louisiana Courts of Appeal regarding this issue.

The Amedee plaintiff filed a personal injury suit against multiple defendants including the City of New Orleans and Premium Parking of South Texas, LLC. After discovery, the City of New Orleans filed a Motion for Summary Judgment seeking dismissal from the suit. The plaintiff did not oppose the city’s motion. Premium Parking was the only party to file an opposition. The trial court granted the city’s motion and dismissed it from the suit. Premium Parking appealed the court’s judgment.

The Fourth Circuit did not address the merits of Premium Parking’s appeal. Instead, the court dismissed the appeal because it found Premium Parking did not have a legal right to appeal the city’s dismissal when the plaintiff did not appeal the judgment.

The Supreme Court disagreed and reversed the appellate court’s ruling. The Court noted that “to prohibit appellate review of a summary judgment by a co-defendant, even where a plaintiff did not appeal, diminishes the search for truth—the object of a lawsuit—and denies a defendant the ability to fully defend itself.” To reach this conclusion, the Court first asked, who may appeal a judgment?

To answer this question, the Court looked to La. C.C.P. art. 2082 and observed the article makes no restriction regarding what party may appeal a final judgment. Further, the Court noted that the right to an appeal is even extended third parties, not involved in the suit, when that third party is allegedly aggrieved by the judgment. See La. C.C.P. art. 2086.

The Court also considered a defendant’s right to appeal in the context of Louisiana’s pure comparative fault system and summary judgments. Under La. C.C. art. 2323, Louisiana’s comparative fault statute, the fault of all parties is to be quantified. La. C.C.P. art. 966(G), provides that when summary judgment is granted in favor of a party or non-party to a suit, the fault of the dismissed party may not be considered in any subsequent allocation of fault in the matter.

The Court noted that while art. 966(G) precludes an allocation of the fault of a party dismissed under the statute, it does not limit the right of a defendant to appeal the dismissal of a co-defendant. No statute limited a defendant’s right to appeal a summary judgment only to those situations where a plaintiff also filed an appeal. Therefore, a defendant who hopes to keep a co-defendant in the case so that fault still may be allocated to the dismissed party at trial now may appeal the co-defendant’s dismissal, even when the plaintiff fails to do so.

Case Reference: Amedee v. Aimbridge Hosp. LLC, 2021-01906 (La. 10/1/22), --- So.3d ---, 2022 WL 12338929.

Louisiana’s anti-indemnity statute applicable to construction contracts, R.S. 9:2780.1, became law in 2011. The statute renders unenforceable any provision in, or collateral to, a construction contract that purports to indemnify or hold harmless a person from liability for its own negligence, or has the effect of doing so. Since the law's passage, few court decisions have interpreted its seemingly broad language and many questions remain as to the law's full impact.

The obvious intent of the anti-indemnity law is to avoid shifting liability away from a party at fault to another person. To this end, the language in the statute nullifies any agreement that has "the effect of holding the person at fault harmless.” But what about "limit of liability" provisions? Arguably, such provisions have the effect of holding harmless the party at fault. Does a limit of liability provision, otherwise valid and enforceable under Louisiana law, run afoul of the anti-indemnity statute? After all, those parties with superior bargaining power in construction contracts will seek to insulate themselves from liability to the fullest extent allowed by law, and will look for alternatives to the indemnity provisions that now expressly violate public policy.

One court recently held that R.S. 9:2780.1 does not prohibit a limit of liability provision in a construction contract. In Patriot Contracting, LLC v. Star Insurance Company, (E.D. La. 3/01/2018), the construction contract contained a provision that excluded liability of the architect for good faith decisions made during contract administration. The plaintiff/contractor alleged that the architect was negligent in its contract administration duties and caused it to suffer economic loss. The court dismissed the claim, rejecting the contractor’s argument that the provision violated the anti-indemnity law.

The Patriot court explained that the statute prohibits an indemnity agreement, i.e., where one party agrees to reimburse a second party for damages for which the second party becomes liable to a third party. However, the anti-indemnity law did not impact the provision that excluded the contractor’s right to recover from the architect. Thus, at at least according to one court, parties in construction contracts are still free to include limit of liability provisions.

Mary Anne Wolf is an engineer/attorney with a construction background who represents design professionals, contractors, and others in construction litigation. She also gives seminars on the subject. She enjoys travel, yoga, and encouraging her husband in his gardening and cooking endeavors.