THE SCOPE OF IMMUNITY OFFERED TO AN LLC "MEMBER"

In Nunez v. Pinnacle Homes, LLC, 13-1320 (La. App. 3 Cir. 12/17/14), — So. 3d —, the Third Circuit upheld the imposition of personal liability upon a Member of the defendant LLC after the LLC failed to build plaintiff’s house at the proper elevation. The case was on remand from the Supreme Court with the instruction to consider the impact of the Supreme Court ruling in Ogea v. Merritt, 13-1085 (La. 12/10/13), 130 So. 3d 888, which had addressed the exceptions to the non-liability of LLC Members.Generally, a member of an LLC is protected from personal liability for damages allegedly caused by the LLC. However, La. R.S. 12:1320(D) outlines exceptions to the general rule. One such exception is a “breach of professional duty.” Adopting an expansive definition of “professional,” the Nunez court held that a licensed contractor qualified as a professional and was therefore personally liable because he was “acting as a professional with attainments in special knowledge, particularly as evidenced by his having attained licensure from the state, as distinguished from mere skill.”The dissent in Nunez argued that the ruling improperly expanded what activities should be considered “professional” and potentially “open[s] any member or manager of an LLC to personal liability upon a finding of professional liability.” The dissent also questioned whether the majority faithfully interpreted Ogea. In this context, it would not be surprising to see the Supreme Court again take up the case.