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HALL AND ASSOCIATES, INC. V. BRUNT CONSTRUCTION, INC., 15-0192 (LA. APP. 1 CIR. 3 11/09/15), 2015 WL 6951252
In Hall and Associates, Inc. v. Brunt Construction, Inc., 15-0192 (La. App. 1 Cir. 3 11/09/15), 2015 WL 6951252, the plaintiff filed suit asserting a materialman’s lien arising out of a contract for a construction project. On May 17, 2011, discovery requests were served on the plaintiff. The next activity in the suit record was a motion to set a scheduling conference filed on June 4, 2014. Thereafter, the defendant filed an ex parte motion seeking an order of abandonment because the plaintiff had not taken any “step” in the prosecution for over three years; LSA-C.C.P. art. 561 sets a three year abandonment period.Between May 17, 2011 and June 4, 2014, the plaintiff had sent and received multiple letters regarding the scheduling of depositions. The Louisiana First Circuit held that simply attempting to schedule a deposition through informal correspondence is not a step in the prosecution of an action such that the action was properly declared to be abandoned by the trial court.
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LOUISIANA SECOND CIRCUIT AFFIRMED SUMMARY JUDGMENT
In Ton v. Albertson's, LLC, 50,212 (La. App. 2 Cir. 11/18/15), 2015 WL 7280625, the Louisiana Second Circuit affirmed summary judgment in favor of the defendant, Albertson’s where the plaintiff tripped in the parking lot while walking towards the entrance to the store.During the discovery phase, the defendant deposed both the plaintiff and her spouse concerning the alleged accident, and neither could recall specifically where the accident occurred. In that connection, the defendant filed a motion for summary judgment asserting that plaintiffs could not meet their burden of proof as to causation. Plaintiffs’ counsel argued that photographs taken by the spouse two days after the fall reveal a crack that was the likely cause of the fall.The Second Circuit held that speculation that the plaintiff tripped on a small crack along the expansion joint cannot provide the factual support necessary to demonstrate that the plaintiff would be able to meet their burden of proving causation at trial. The after-the-fact identification of a small crack along the expansion joint, particularly when the plaintiff could not recall where the fall occurred, was not circumstantial evidence sufficient to create a genuine issue for trial.
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Mary Anne Wolf to give presentation on contracts for design services at seminar in New Orleans
Mary Anne Wolf will give a presentation in New Orleans on December 4, 2015, on contracts for design services as part of a seminar entitled Engineering Law and Ethics. For information on continuing education credits and registration, go to http://www.halfmoonseminars.com.
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Keogh Cox participates in Baton Rouge Bar Association's Holiday Star program
Keogh Cox was pleased to participate in Baton Rouge Bar Association's Holiday Star program. The attorneys and staff provided presents for 21 children in the Baton Rouge area.
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SUPREME COURT CLARIFIES LIABILITY OF LLC MEMBERS
In Nunez v. Pinnacle Homes, L.L.C., 2015 WL 5972529 (La. 10/14/15), a homeowner brought a New Home Warranty Act claim against the LLC that constructed her home and the sole member of the LLC. After construction, plaintiff was informed that her home did not meet the required elevation for permitting purposes and flood insurance. At trial, it was determined that Mr. Lenard, the sole member of the LLC, did not properly supervise the elevation of the property and Mr. Lenard was found personally liable under the "professional duty exception" to the general rule of limited liability for members, managers, employees and agents of a Limited Liability Company.The Third Circuit affirmed the trial court and held that a breach of Lenard's professional duty as a contractor under La. R.S. 12:1320(D) allowed for recovery against him as an individual, despite the lack of contractual privity between plaintiff and Lenard. Lenard sought writs to the Louisiana Supreme Court, which remanded to the Third Circuit to issue a ruling in light of Ogea v. Merritt, 13-1085 (La. 12/10/13), a 2013 Supreme Court decision that set forth the framework to assess the personal liability of an LLC member.On remand, the Third Circuit again imposed personal liability, finding that Lenard breached a professional duty 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." Lenard again appealed to the Supreme Court.In Nunez, the Supreme Court observed that the legislature through the creation of the LLC as a business entity intended to promote commerce by limiting personal liability for debts incurred or acts performed on behalf of an LLC. Thus, the legislature largely intended to shield individual members, managers, and employees of an LLC from liability, and created only "narrowly defined circumstances" in which a member of the LLC may be subject to personal liability. According to the court, the facts of Nunez did not fall within the professional duty exception; therefore, the Third Circuit erred when it imposed personally liability upon Lenard.The Nunez court rejected the Third Circuit's conclusion that a contractor licensed by the state was a "professional" within the meaning of the LLC statute. According to the court, a "profession" is different from other occupations or trades. Unlike with professions such as accounting, architecture, law, medicine, etc. recognized by the legislature in Title 12 as professions, the court found no authority that the legislature intended "contracting" or "contractors" to be considered professionals in this context. Given that there are some fifty-seven other "professions and occupations" licensed by the state, the Supreme Court feared that a broad interpretation of the professional duty exception "would allow the general rule of limited liability to be swallowed up by the narrow professional duty exception.”
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The Supreme Court "Cleans Up" the Liability of Merchants for Slip-and-Falls Caused by Independent Contractors
In Thompson v. Winn-Dixie Montogomery, Inc., et al., 2015-C-0477, – So.3d —, the Louisiana Supreme Court recently held that a merchant is not solidarily liable for “slip and fall” damages caused by the actions of an independent contractor, a janitorial services company. Additionally, the Thompson Court addressed the best practices for an appeals court to raise an issue “sua sponte,” i.e, on its own.
The facts of the case are straightforward. The plaintiff slipped on a puddle of water in front of a meat case in a grocery store. The merchant, Winn-Dixie, kept a floor mat in front of the meat case to address any condensation. At the time of the fall, the mat was rolled up to permit the area to be mopped. Winn-Dixie had contracted with Southern Cleaning Services, Inc. (“SCSI”) to provide janitorial services. SCSI then subcontracted with KAP Cleaning Services, Inc. (“KAP”) to perform this work. KAP’s employee was the one who rolled up the mat and was preparing to mop the meat case area when plaintiff fell.
Plaintiff settled with SCI and KAP prior to trial. However, KAP’s “third party fault” was still an issue at trial. The trial court found KAP 70% at fault and Winn-Dixie 30% at fault.
Hoping to impact the fault allocation on appeal, the plaintiff argued that Winn-Dixie possessed an exclusive duty over floor safety and was liable under La. R.S. 9:2800.6 (the “Merchant Liability Statute”) because its manager did not conduct inspections every thirty minutes as required by Winn-Dixie policies, and because the floor mat was undersized. Additionally, plaintiff argued that Winn-Dixie should have been aware of the water in front of the meat case because of a history of alleged “leaks.”
In response to plaintiff’s arguments, Winn-Dixie offered the testimony of its refrigeration maintenance technician, who explained that the meat case does not circulate water and, therefore, cannot leak. However, the technician conceded that condensation could develop depending on the temperature and humidity levels in the store.
The appeals court accepted the plaintiff’s arguments and reversed. In assessing 100% fault to Winn-Dixie, the appellate court held that: (1) Winn-Dixie could not delegate the statutorily-imposed duties of the Merchant Liability Statute; and (2) Winn-Dixie possessed “operational control” of KAP’s employee. The appeals court decision suggested that the independent contractor could never be assessed fault in connection with floor safety because Winn-Dixie possessed the duty under the law.
The Louisiana Supreme Court in Thompson reversed the appeals court. While the act of contracting with an independent contractor does not eliminate the merchant’s statutory duties, the independent contractor may also be liable if there is evidence of negligence on its part. Accordingly, the Court held that all fault must be assessed because a merchant is not solidarily liable for the actions of an independent contractor.
The Thompson Court also addressed whether Winn-Dixie controlled and supervised KAP’s employee to the extent that it had “operational control.” On this subject, the Court noted that the issue of “operational control” was not pled, briefed or argued by any party and was instead raised sua sponte by the appeals court. In this context, the Court instructed that, if an issue is raised sua sponte, the best “practice [for the appeals court] is to invite additional briefing from the parties prior to rendering judgment.”
The Thompson Court felt that it was erroneous for the appellate court to raise an issue without briefing or input from the parties on that issue. Nevertheless, it also found that the evidence in the record was insufficient to establish that Winn-Dixie exercised operational control over KAP. After determining the Winn-Dixie was not responsible for the actions of KAP’s employee, the Court applied the “Watson factors” and determined that the trial court had reasonably apportioned fault based upon the record created at trial.
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FIRST CIRCUIT CLARIFIES REQUIREMENTS FOR PUBLIC BID LAW
In Dynamic Constructors, L.LC. v. Plaquemines Parish Gov't, 15-0271 (La. App. 4 Cir. 8/26/15), 173 So. 3d 1239 (La. Ct. App. 2015), reh'g denied (Sept. 14, 2015), a contractor filed a preliminary injunction seeking to enjoin a parish government from awarding a public contract to another bidder. After awarding the contract to Dynamic, the lowest bidder, the parish rescinded the award. The parish contended that the bid was not responsive because it did not contain written evidence of the authority of the person signing the bid, as required by the Public Bid Law.Dynamic argues that the signature of the LLC member indicated that he was the "owner" of Dynamic and that the Public Bid Law does not require that the bidder provide the pertinent record of the Secretary of State, only that the person signing the bid be a member of the business entity submitting the bid. The Fourth Circuit disagreed and found that the Public Bid Law requires written evidence of authority to be submitted with the bid substantiating that the signatory is a member of the company or an authorized representative. As such, the Dynamic court found a failure to comply with the Public Bid Law; the parish correctly rescinded the bid.
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Keogh Cox branding is featured on the Law Firm 4.0 Blog
The Keogh Cox branding is featured on the Law Firm 4.0 Blog. It showcases where we were and where we are.
“Keogh Cox did it right. Leaders didn't put their toe in the water, they demonstrated courage and commitment from the first meeting that never wavered. It was an honor and pleasure for the entire Content Pilot team to work with them.”
Check it out and let us know what you think.
http://lawfirm4-0.typepad.com/law_firm_40_blog/
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SEPTEMBER 2015 LEGAL UPDATE
CONSTRUCTION LAW - In Lamar Contractors, Inc. v. Kacco, Inc., 14-1360 (La. App. 4 Cir. 7/1/15), 2015 WL 403181, Lamar, a general contractor, sued its subcontractor, Kacco, Inc., for an alleged breach of contract. In particular, Lamar asserted that the sub-contractor had failed to adequately and timely supply necessary building materials to perform framing and drywall work in connection with the YMCA facility in Plaquemines Parish.At trial, evidence showed that Kacco's material supplier had frozen its account over payment issues. Needing materials to complete the work, Kacco requested that Lamar issue a joint check to Kacco and the supplier. Lamar agreed to issue the joint check, but only if Kacco agreed to a corresponding 10% "back charge" for the cost of the materials purchased. Kacco refused. Therefore, despite competent work, the subcontractor's contract was terminated for a failure to obtain adequate supplies as required by contract.The trial court identified $72,350.00 in actual damages caused to the general contractor as the result of the subcontractor’s default. However, the award was reduced by 2/3rds due to Lamar’s “contributory negligence.”On appeal, Lamar asserted that the trial court erred in reducing the damages based upon contributory negligence, arguing that contributory negligence “consists of a civil wrong of negligence in tort or delictual law in Louisiana.” Lamar therefore contended that only the breach of a duty imposed by law, not by contract, would have supported an assessment of fault against it.Lamar’s argument was rejected by the Appellate Court which cited to La. C.C. art 2003, which provides in pertinent part:“If the obligee’s negligence contributes to the obligor’s failure to perform, the damages are reduced in proportion to that negligence.”Citing to Lamar’s refusal to assist in funding the necessary supplies and late payment of another invoice, the Appellate Court found that adequate evidence existed in support of the allocation of fault to Lamar. While the Appellate Court slightly increased the amount of damages awarded to Lamar, it upheld the 2/3rds assessment of fault.
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Now You See Us
Keogh Cox is proud to announce the placement of a new sign and logo on the exterior of our office building in Baton Rouge, Louisiana.
Keogh Cox’s offices have long been situated in the heart of downtown Baton Rouge in a convenient and historically significant location. Clients, drivers, and passers-by will now be better able to see us, day or night.
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