The Rise of the Drones

Louisiana is a river delta state filled with fertile land and the refusal of its local fauna to stay within boundaries is a problem. Trees create hazards. They also bring nuisance in all its forms––pine sap drizzled over a new car, an oak branch casting a sun-blocking shadow over the perfect tanning spot, and on and on. If you own the tree, the problem is easy enough to address; but what if the tree belongs to your neighbor? Can you cut your neighbor’s tree?

While the Louisiana Civil Code provides guidance, it does not answer every question. Under the Civil Code, “a landowner has the right to demand that the branches or roots of a neighbor’s trees, bushes, or plants, that extend over or into his property be trimmed at the expense of the neighbor.” La. Civil Code Art. 688. Nevertheless, the right to "demand" that the problem be addressed is not a “license to cut;” and does not permit a landowner to cut without permission. Kahl v. Luster, 110 So.3d 1101 (La. App. 1 Cir. 12/28/12).In the event a neighbor is less than neighborly and refuses to trim back a trespassing branch, a landowner may bring an "injunction" against his neighbor. Such an action was involved in Scott v. Ramos, 399 So.2d 1266 (La. App. 4 Cir. 1981) where the defendant/neighbor's large oak tree extended over the plaintiff's property and deposited leaves and branches onto his roof and into his yard. In defense of the action, the defendant presented evidence that cutting the tree back to the property line would essentially kill the tree. Over these objections, the Louisiana Fourth Circuit Court of Appeal granted plaintiff a permanent injunction which required the defendant neighbor to “keep the tree, its limbs and branches cut” back to the property line. Further, the court ordered that defendant reimburse the plaintiff for the cost of removing leaves and fallen debris once a year.So, should your neighbor’s tree ever present a hazard or impede on the enjoyment of your property, there are means of relief. However, gassing up your chainsaw, without your neighbor’s permission, is not one of them.

Courts around Louisiana continue to address factual scenarios for when summary judgment on an insured’s first party bad faith claim may be appropriate.

In Creamer Brothers Inc. et al. v. General Casualty Co. of Wisconsin, the federal court for the Western District of Louisiana addressed an insured’s claim for bad faith penalties and attorney’s fees arising out of an insurance claim for damages sustained in a February 2021 ice storm. The pertinent timeline is as follows:

• February 22, 2021: Date of Loss/Ice Storm
• February 26, 2021: Adjuster inspects property
• April 9, 2021: Adjuster completes estimate
• April 15, 2021: Insurer issues payment
• August 6, 2021: Insured submits damages estimate
• August 26, 2021: Insurer reinspects property with engineer
• September 24, 2021: Engineer submits report to Insurer
• October 7, 2021: Insurer prepares new estimate
• October 11, 2021: Insurer tenders supplemental payment
• October 12, 2022: Suit filed

The insurer argued summary judgment was appropriate because its damage assessment created a reasonable, well-founded dispute regarding the extent of damage caused by the ice storm. Plaintiff disagreed, arguing bad faith attached because the insurer relied solely on its own expert reports which they argued amounted to an investigation that was so inadequate it could be deemed unreasonable.

The Court sided with the insurer, granting its summary judgment. In so holding, the Court relied on the portion of La. R.S. 22:1892 which provides an insurer’s conduct must be “arbitrary, capricious, or without probable cause” for bad faith to attach. Specifically, the Court stated, “the fact that the parties’ experts reached different conclusions in their respective assessments gives rise to a dispute in the extent of Plaintiffs’ coverage, but does not illustrate a genuine issue of fact as to General Casualty’s ‘bad faith.’”

The Court noted the insurer sufficiently communicated with the insured, provided the insured with multiple expert reports containing their data and conclusions, and “ultimately made payments to Plaintiffs in accordance with those conclusions.” Plaintiff failed to point to evidence General Casualty’s conduct was arbitrary, capricious, or without probable cause, “despite yielding unsatisfactory results.”

In a case out of the Eastern District, Gentilly, LLC v. State Farm Fire & Cas. Co., the Court similarly relied on plaintiff’s failure to establish a general issue of material fact to show the insurer’s conduct was “arbitrary, capricious, or without probable cause.” The Gentilly case arose out of the plaintiff’s insurance claim for damages sustained to its commercial shopping center during Hurricane Ida. The parties engaged in a series of inspections, estimates, expert reports, payments, and supplemental payments over the course of about thirteen months, followed by several months of inactivity, then another period of investigation and adjustment over the course of about nineteen months.

Plaintiff argued the insurer’s 43-day delay in its first payout, failure to have an engineer inspect the property for a year, and gross under-evaluation of the damages as evidenced by its supplemental tender supported its bad faith claim. The Court disagreed.

In support of its conclusion, the Court noted the insurer advised plaintiff the inspection would take multiple days, and the delay in issuing payment arose out of the inspectors’ availability. The Court noted the insurer’s actions were “consistently in line with its expert appraisals.” In conclusion, the Court stated, “[t]hough the payout process was protracted by the scope and complexity of the insured loss, plaintiff fails to raise a genuine issue of material facts indicating that State Farm’s actions were arbitrary, capricious, or without probable cause.”

Louisiana courts have not established a bright-line rule for determining when summary judgment is appropriate on an insured’s bad faith claim. However, these cases seem to suggest that continued adjustment over a period of time may not give rise to bad faith claims where an insured cannot cite to evidence an insurer’s conduct was “arbitrary, capricious, or without probable cause.”

References:

Creamer Brothers Inc. et al. v. General Casualty Co. of Wisconsin, No. 22-cv-6110, 2025 WL 818579 (W.D. La. Mar. 13, 2025).

Gentilly, LLC v. State Farm Fire & Cas. Co., No. 23-cv-262, 2024 WL 5246606 (E.D. La. Dec. 30, 2024).

Louisiana’s New Home Warranty Act (“NHWA”) provides remedies to homeowners forcertain construction defects once the new home construction is complete. La. R.S. 9:3141 et seq. These protections can prove crucial to a homeowner’s ability to remedy defects that appear in their home, but the statutes providing these remedies establish strict guidelines that must be followed for the protections to apply. This generally post sets forth some of the key protections and obstacles/defenses that often arise. However, each specific claim should be considered under its own facts.

PROTECTIONS

The NHWA provides specific protections to homeowners. Each protection expires if not advanced within a set time-period.

Noncompliance/Defects- The NHWA protects against “any defect due to noncompliance with the building standards or other defects in materials or workmanship not regulated by building standards.” La. R.S. 9:3144(A)(1). This category includes defective construction or materials used in the construction. Even seemingly minor issues such as cracked plaster, yellowing paint, and “rubbing off” of new paint can give rise to a valid claim for recovery under this portion of the NHWA. See Bynog v. MRL, LLC, 05-122 (La. App. 3 Cir. 6/1/05), 903 So.2d 1197. Deviations from the “plans and specifications” for a home may also be recoverable. See Thorn v. Caskey, 32-310 (La. App. 2 Cir. 9/22/99), 745 So.2d 653.

Because this first protection is so broad, it also provides the shortest time-period to assert a claim: one year from the “warranty commencement date,” which is either the date legal title to the home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first. La. R.S. 9:3142(7).

Plumbing/Electrical/HVAC- The NHWA also protects the homeowner from defects in the plumbing, electrical, heating, cooling, and ventilating systems. These protections exclude equipment or appliances. A homeowner must bring a claim under this second category within two years of the warranty commencement date. La. R.S. 9:3144(A)(2).

Major Structural Problems- the NHWA allows recovery for major structural defects up to five years following the warranty commencement date. La. R.S. 9:3144(A)(3). For instance, recovery was allowed for a failing foundation under this provision in Campo v. Sternberger, 15-53 (La. App. 5 Cir. 11/19/15),179 So.3d 908.

PITFALLS

The most obvious – and probably most prevalent – pitfall is the timeliness of the claim. Courts do not hesitate to dismiss a claim if it is not timely filed.

The NHWA also requires that the homeowner give the builder written notice (via certified mail) of the defect before the homeowner attempts a repair, or before filing suit under the NHWA. La. R.S. 9:3145(A). This notice must be sent to the builder within one year after the homeowner has knowledge of the defect. Therefore, the one-year “clock” may begin to run when the homeowner gains knowledge of the problem even if the NHWA provides a longer time-period to advance the claim.

A failure by the homeowner to give timely notice can also diminish the claim even if it is brought within the deadlines. Under La. R.S. 9:3144(B)(4)(c), any damages caused by the homeowner’s failure to give the builder notice of the defect are not recoverable. In that circumstance, builders often contend that the severity of the problem could have been lessened had they been made aware.

RECOVERABLE DAMAGES

With some exceptions, damages under the NHWA are limited to the actual damages incurred by the homeowner, including attorney fees and court costs arising out of the builder’s violation. La. R.S. 9:3149. The actual damages cannot exceed the reasonable cost of repair or replacement necessary to cure the defect. If there are multiple defects across the home, damages are limited to the original purchase price of the home.

Consequential damages such as pain and suffering, mental anguish, or loss of use are generally not recoverable. See La. R.S. 9:3144(B); Iteld v. Four Corners Const., L.P., 12-1504 (La. App. 4 Cir. 6/5/13), 157 So.3d 702. However, there may be exceptions to this general rule under certain factual circumstances beyond the scope of this post.

CONCLUSION

The NHWA provides important remedies to homeowners. But, the New Home Warranty Act is complex and balances the competing interests of the homeowners and the builders. For this reason, a failure to follow the notice and timeliness requirements will often defeat the claim.

John Grinton, is a partner at Keogh Cox whose practice areas include commercial and construction litigation. When he is not practicing law, John spends most of his time with his wife and son, and their two dogs.