Louisiana First Circuit Affirms Broad Duty to Defend Contractor Who Performs Design Work Under E&O Policy
Authors: Christopher K. LeMieux and Brandon M. Tate
In a ruling regarding the interpretation of several Errors and Omissions policies, the Louisiana First Circuit Court of Appeal has shown just how liberal a petition’s allegations will be construed when determining whether an insurance carrier has a duty to cover the legal defense costs of an insured contractor. The case is Wimberly, IV v. Brown, 2025-0295 (La. App. 1 Cir. 4/24/26), ___ So. 3d ___, 2026 WL 1126789.
In Wimberly, a lawsuit was filed against several defendants alleging deficiencies in the design and construction of a Mandeville law office. The petition was amended to substitute the named plaintiffs and add Southern Services & Equipment, Inc. as one of the defendants. Southern timely notified its insurer, Crum & Forster Specialty Insurance Company of the lawsuit but coverage was denied. Thereafter, Southern filed a third-party demand against the insurer seeking to compel Crum & Forster to provide a legal defense against the claims.
Southern filed a motion for partial summary judgment on the issue, which was governed by Louisiana’s “eight-corners rule.” Under the rule, a court will look to the “four corners” of the plaintiff’s petition and the “four corners” of the policy to determine whether an insurer owes its insured a duty of defense. The bottom line is that an insurer is required to foot the legal defense’s bill, unless it is clear from a reading of the petition’s allegations that the policy unambiguously excludes coverage. The allegations are to be construed liberally.
Southern, as the movant, bore the initial burden of proof and it filed certified copies of two policies issued by Crum & Forster in support of the motion. The E&O Policies provided coverage for Southern’s wrongful act, error, or omission in the rendering or failure to render “professional services” that results in damage to another person. The policy further defined “professional services” as “those functions performed for others by [Southern] . . . that are related to [Southern’s] practice as a consultant, engineer, architect,” etc.
The amended petition alleged that Southern “designed, fabricated and/or manufactured” metal components of the law office; “negligently failed to follow applicable . . . engineering designs; and fabricated and installed the metal portions without engineering approval. After review, the trial court found in favor of Southern and ordered Crum & Forster to provide a defense under the E&O policy. However, Crum & Forster appealed the decision.
The narrow issue on appeal was whether the petition’s allegations sufficiently alleged that Southern provided “professional services” as defined under the policy. Crum & Forster contended that the petition contained no explicit allegation that Southern provided services as a “consultant” or as otherwise defined by the policy. However, the appellate court recalled that Louisiana is a fact-pleading state which focuses on substance and not form in pleadings and the court was to construe the pleading in light of the allegations as a whole.
The First Circuit noted the allegation that Southern had “negligently designed” certain portions of the law office. The court also noted that because the policy did not define the word “consultant,” resort could be made to the generally prevailing meaning of the word. The appellate court relied on the Merriam-Webster Dictionary to define “consultant” as “one who gives professional advice or services.” It further noted that a “designer” was defined as “one that designs” or “creates and often executes plans for a project.” Based on those definitions, the First Circuit found that the allegations of negligent design could be reasonably construed as accusations that Southern committed errors or omissions in the rendering of “professional services” as a “consultant.” Therefore, because the allegations fell within the “four corners” of the E&O Policy, Southern satisfied its burden in a sufficient enough manner to require the insurer to show that coverage was no “unambiguously excluded” under the policy. The First Circuit found Crum & Forster could not meet this burden. Therefore, the trial court’s judgment was affirmed.
For contractors (and designers), this ruling shows that an insurer’s duty to defend remains broad under Louisiana law.
