What is a Design Professional’s Tort Duty?

The period of time before the contract is signed in one of optimism. After all, few sign a contract expecting problems. But if you do not consider the many "what ifs," you may be left holding the bag. And this "bag" may include indemnity provisions which could force you respond for the actions of other parties.

Many contracts include "indemnity" or "hold harmless" provisions. Black's Law Dictionary defines indemnity as "a duty to make good any loss, damage, or liability incurred by another." Like many states, Louisiana allows one party to agree to pay for the damages caused by the fault of the other, if this intention is sufficiently expressed. However, there are broad statutory exceptions that can nullify the indemnity requirement.

Parties to construction contracts should be careful not to blindly rely upon indemnity provisions because the Louisiana legislature in La. R.S. 9:2780.1 declared invalid any indemnity provision where a party seeks indemnity from another for its own fault.

Despite the broad nullification of certain types of indemnity provisions in construction contracts, current Louisiana law allows a party to be indemnified for its own fault when the other party obtains insurance to cover the risk, and recovered the cost of insurance in the contract price. For example, a general contractor can require a subcontractor to indemnify the general contractor for the general contractor’s fault, as long as the subcontractor obtains insurance for this obligation, and was paid that amount under the contract.

Indemnity obligations are not always as they seem. Even in the pre-contract period of optimism, you may want to contact an attorney so you won't be left holding the bag.

Chelsea Payne is an associate at Keogh Cox and has been practicing for three years. Her practice mainly relates to construction law and complex litigation. Chelsea enjoys playing tennis and spending time with her family.

The Supreme Court ruling in Couvillion Group, LLC v. Plaquemines Parish Government, 2020 -00074 (La. 4/27/20) is a reminder that an indemnity claim must be sufficiently related to the principal demand and that contract indemnity provisions are to be strictly construed.

In Couvillion, the general contractor sued the owner of a public works port project for contract delay damages resulting from a cease work order issued to allow redesign of a fuel tank platform. When the contractor submitted its delay claim, the owner requested that its project engineer review it and make recommendations. The engineer recommended payment of a little over $1 million dollars. When the owner refused to pay, the contractor sued. In response, the owner filed a third-party demand against the engineer alleging that its recommendation was erroneous and excessive and that, if it was bound by the engineer’s recommendation, then the engineer must indemnify the owner.

On behalf of the engineer, Keogh Cox attorneys argued that the engineer should not be required to reimburse the owner for any delay costs and asked for dismissal through an exception of no cause of action. Code of Procedure Article 1111 provides that a defendant in a principal action may bring in any person who may be liable to him for all or part of the principal demand. Here, that was not the situation. The engineer was not liable to the owner for any part of the contractor’s delay claim because the engineer did not cause the delay. The delay damages were incurred before the engineer made a recommendation for payment. The events giving rise to the two claims were separate and distinct: the main demand arose from the project delay and the third- party demand arose from the engineer’s recommendation of the claim amount. The Court commented that the principal claim against the owner for delay damages was too attenuated from the owner’s claim against the engineer, thus the third-party demand was improper.

The owner also relied on the indemnity provision in the engineer’s contract that required the engineer to indemnify the owner against any and all claims for personal injury or “damages to property” that may arise from its services. The Court held that the plain meaning of the term did not include the economic-only losses related to the subject delay claim. The Court further reasoned that indemnity agreements are to be strictly construed, rejecting the owner’s broader interpretation.

In Couvillion Group, LLC v. Plaquemine Parish Government, the Louisiana Court of Appeals for the Fourth Circuit addressed whether the general contractor could recover “pass-through claims” against the owner where those claims would be time-barred if brought directly by the subcontractors. “Pass-through claims” have been described as damage claims that subcontractors “pass through” to the contractor to prosecute an action against the project owner to recover those damages.

In Couvillion, the contractor sued the Parish for delay damages. The trial court awarded $2,782,724 in delay damages, $300,000 of which was for delays incurred by two of the subcontractors.

On appeal, the Parish argued that the contractor could not recover the pass-through claims because any claims for delay that the subcontractors had against the contractor were prescribed (time-barred). The subcontractors sent demand letters after substantial completion in 2013 but did not file suit against the contractor. Under Louisiana law, contract claims are subject to a 10-year prescriptive period. The Parish asserted that by the time trial occurred in 2024, the subcontractor claims had prescribed.

The Fourth Circuit recognized that subcontractors often pass their claims through the contractor to prosecute against the owner to recover those damages. The contractor included those claims in the lawsuit filed against the owner in 2015. When several parties share a cause of action, suit by one party interrupts prescription as to all parties. As such, the court held that prescription was interrupted, and the contractor could recover the pass-through claims against the owner.

This case highlights the importance of identifying and properly preserving pass-through claims early in litigation.

References:

Couvillion Grp., LLC v. Plaquemines Par. Gov't, 2025-0356 (La. App. 4 Cir. 1/7/26), 430 So. 3d 1175, writ denied, 2026-00217 (La. 5/12/26), 430 So. 3d 1090.

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