108 So. 3d 1208
La. Ct. App.2013Background
- Plaintiffs sued Parish of Jefferson and B&K Construction for damages to Harvey homes from Gardere Canal construction in 1998–1999.
- Project funded 75% by the Corps and 25% by the Parish; final plans were prepared under Corps standards; B&K contracted with the Corps as general contractor.
- Parish sought discretionary immunity under La. R.S. 9:2798.1; B&K sought statutory contractor immunity under La. R.S. 9:2771 and government contractor immunity.
- Trial court granted Parish and B&K summary judgments; denied plaintiffs’ motion to amend and granted Parish’s motion to strike the fifth amended petition.
- On appeal, court affirmed Parish’s summary judgment and the denial/strike rulings, but reversed the summary judgment for B&K and remanded for further proceedings.
- The core dispute is whether Parish’s involvement was discretionary/operationally negligent and whether B&K’s conduct was immunized under contractor immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Discretionary immunity whether Parish liable | Parish duties under the Agreement created operational negligence | Parish decision to enter the Agreement was discretionary policy-based; no operational duty | Parish entitled to discretionary immunity; no operational negligence found |
| Leave to file fifth amended petition and strike | New SOP document supports third-party beneficiary claims | Document was not a contract; ruling within trial court discretion | No abuse; denial of leave and grant of strike affirmed |
| Statutory contractor immunity for B&K | B&K failed to prove immunity; damages caused by B&K fault | B&K complied with plans/specifications; immune | Genuine issues of material fact remain; 9:2771 not proven; reverse on this point |
| Government contractor immunity for B&K | Even with precise specs, B&K’s actions may have violated them; warnings to government | Three-prong test; conduct not shown to conform or warn | Genuine issues of material fact; immunity not proven; reverse for B&K |
Key Cases Cited
- Simeon v. Doe, 618 So.2d 848 (La.1993) (two-step test for discretionary immunity)
- Chaney v. National Railroad Passenger Corp., 583 So.2d 926 (La.App.1 Cir.1991) (operational vs policy-level immunity)
- Lambert v. Riverboat Gaming Enforcement Div., 706 So.2d 172 (La.App.1 Cir.1997) (immunity as a matter of fact to be determined at trial)
- Mitter v. St. John the Baptist Parish, 920 So.2d 263 (La.App.5 Cir.2005) (discretionary immunity analyzed when parish performs construction itself)
- Morgan v. Lafourche Recreation Dist. No. 5, 822 So.2d 716 (La.App.1 Cir.2002) (contractor immunity when plans are followed; duty limited to plans)
- Hercules, Inc. v. United States, 516 U.S. 417 (U.S.1996) (government contractor immunity framework (three prongs))
- Kerstetter v. Pacific Scientific Company, 210 F.3d 431 (5th Cir.2000) (three-prong test for government contractor defense)