Riess LeMieux Client Dismissed from Public Entity’s Suit with Prejudice under Public Works Act Five Year Peremptive Statute.
Christopher K. LeMieux and Robert Riess represented a Firm Client against a Public Entity in obtaining a dismissal of all claims by a Civil District Court Judge for the Parish of Orleans. The Firm Client, a general contractor, was awarded a public works contract by the Public Entity for a project that reached substantial completion in 2013. Eight years later, the Public Entity filed a Petition against the Firm Client relating to an alleged defective light system having a ten year warranty and installed under the Public Works Contract.
The Firm Client responded with the Public Works Act five year peremptive statute, La. R.S. 38:2189. The crux of the argument requesting dismissal of all claims was that “any action” against the contractor “in connection with the construction, alteration, or repair of any public works” was perempted 5 years from substantial completion. The statute, which has been held by the Supreme Court to be peremptive, states:
Any action against the contractor on the contract or on the bond, or against the contractor or the surety or both on the bond furnished by the contractor, all in connection with the construction, alteration, or repair of any public works let by the state or any of its agencies, boards or subdivisions shall prescribe 5 years from the substantial completion, as defined in R.S. 38:2241.1, or acceptance of such work, whichever occurs first, or of notice of default of the contractor unless otherwise limited in this Chapter.
Central to the Orleans Parish Judge finding in favor of the Firm Client, was the Fourth Circuit Court of Appeal’s holding in Orleans Par. Sch. Bd. v. Scheyd, Inc. that the five year peremptive period of 38:2189 applies to all claims made by a public entity against a contractor. In Orleans Par. Sch. Bd, a School Board styled their petition as one of tort vs. contract in order expand the five year peremptive under La. R.S. 38:2189. The Orleans Par. Sch. Bd. Court held that allowing the School Board to proceed under State tort law for a defective public work would be contrary to the legislative intent of the statute and dismissed the School Board’s claims.
The Public Entity in the instant matter also attempted avoid the Public Works Act peremptive statute by characterizing the light system installed as not a “public work” and that its claims for breach of a ten year express warranty for the light system were outside of the Public Works Act. After considering testimony and evidence, the Orleans Parish Judge was unpersuaded and ultimately subscribed to the prevailing jurisprudence that in an action between a public entity and a contractor, the Public Works Act is the “only avenue of recovery” when it relates to the contract and is in connection with the construction, alteration, or repair of any public works.
Riess LeMieux is proud to have represented its client in reaching a complete dismissal of claims against them in the Public Works Act arena.
