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

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.

A motion for summary judgment is a procedural device a party can use to avoid a full-scale trial when there is no genuine issue of material fact. La. C.C.P. art. 966 is the statute that governs motions for summary judgment in Louisiana. The statute was amended in 2015 to establish some new procedural rules for filing summary judgment motions. Before the statue was amended, the deadline for opposing a motion for summary judgment was set in the District Court Rules, and courts frequently allowed oppositions to motions for summary judgment to be filed after the statutory delay.

In 2015, the Legislature amended the statute to state that “absent the consent of the parties and the court, an opposition shall be filed” within the new fifteen-day deadline established by the article. In Auricchio v. Harriston, the Louisiana Supreme Court ruled the amendments to the statute removed the discretionary language that previously allowed a court to allow a party additional time to oppose a motion for summary judgment. Accordingly, the Court ruled the amendments to art. 966 made the opposition deadline mandatory, and late-filed oppositions should not be considered in connection with a ruling on a motion for summary judgment.

The Louisiana Supreme Court recently revisited this issue in Mahe v. LCMC Health Holdings LLC. The Court considered whether a trial court may grant a continuance of a hearing on a motion for summary judgment when a party fails to file its opposition within the fifteen-day deadline set in La. C.C.P. art. 966(B)(2).

In Mahe, a party requested a continuance of the hearing after the fifteen-day deadline passed. While subsection 966(C)(2) provides that a continuance of the hearing is permitted “for good cause shown,” the Court held that the requested continuance could not serve to circumvent the mandatory deadline for filing an opposition, as described in the Auricchio case. Accordingly, the order granting the continuance was reversed, and the trial court was instructed to rule on the motion for summary judgment without consideration of the untimely filed opposition. In so holding, the Court reinforced the mandatory deadlines set in La. C.C.P. art. 966 and provided additional guidance on the procedural rules for filing and opposing motions for summary judgment.

Drones play an increasing role in modern life; all indications are that this role will increase, maybe to disturbing levels. The popularity and availability of drones have sky-rocketed in recent years. As with most new technologies, the development of the law to regulate this technology lags behind. To their credit, the DOT and FAA have been pro-active in developing regulations. This article will address some of these regulations and the expected development of future regulations.

Initially, the FAA prohibited the use of drones in the commercial industry. Gradually, the FAA granted exemptions to certain companies for the commercial use of drones. These exemptions permitted these companies to use drones for:

(i) the movie and video industry;

(ii) real estate photography;

(iii) agricultural monitoring;

(iv) aerial surveying;

(v) delivery of medical supplies in rural areas; and,

(vi) inspecting flare stacks

Applying for exemptions can be costly and the outcome is not guaranteed. However with growing commercial demand, the FAA has gradually loosened its restrictions and granted more exemptions.

The FAA and DOT finalized the first operational rules for routine commercial use of drones which took effect in August 2016. These regulations are available at: http://www.faa.gov/uas/media/Part_107_Summary.pdf. The issuance of these regulations is projected to generate $82 billion for the U.S. economy and create more than 100,000 jobs over the next ten years.

While these regulations are fairly comprehensive, they prohibit the use of drones beyond the line of sight of the operator over unprotected persons on the ground. Further, there are limitations on size and when drones can be flown. Based on these restrictions, plans to use drones for delivery services will likely have to wait. However, the FAA is permitting companies to apply for waivers, available if companies demonstrate that the proposed flight will be conducted safely. Even if a drone flight is permitted, air traffic control authorization is required if the flight is in controlled airspace. Requests for waivers and authorization must be applied for on the FAA’s online portal located at https://www.faa.gov/uas/.

The FAA is trying to balance the benefits of drone use with its mission to protect public safety. The FAA also provides all drone users with recommended privacy guidelines and is set to issue new guidance to local and state governments on drone privacy concerns.

The White House announced that the FAA is currently working on developing regulations to permit the safe and beneficial use of drones over crowds. As part of this development, the FAA launched an Unmanned Aircraft Safety Team and a Drone Advisory Committee.

We expect the FAA to allow a more expansive use of drones in the years to come. Like it or not, the drones are here and are not going away; they are rising.