Celebration Church, Inc. v. Church Mutual Insurance Co.
216 So. 3d 1059
La. Ct. App.2016Background
- Celebration Church sued insurers after Hurricane Isaac and later (Jan. 27, 2014) filed a Second Supplemental Petition adding Jaco Roofing (Jaco) and Roy M. Carubba (Carubba) for alleged defective roofing and gym addition work dating to 2006–2008.
- Jaco performed roofing work completed August 10, 2006; Celebration never recorded an acceptance of the work in the mortgage office.
- Tenants began occupying parts of the building beginning August 2006 (Premier Fitness) and additional tenants occupied other spaces through 2008.
- Jaco moved for an Exception of Peremption under La. R.S. 9:2772(A)(1)(b) (five-year peremptive period for construction defects); the trial court granted the exception and entered judgment December 7, 2015.
- Carubba moved for summary judgment asserting he never contracted or performed work individually (work was performed by corporate entities); the trial court granted summary judgment November 9, 2015.
- Celebration appealed both rulings; the court of appeal affirmed Jaco’s exception (peremption) and reversed Carubba’s summary judgment (genuine issues of fact about who contracted/performed and possible veil-piercing).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Celebration's claims against Jaco are perempted under La. R.S. 9:2772(A)(1)(b) | Peremption did not begin until substantial completion of all work; occupancy by some tenants should not start the peremptive clock | Peremption began when owner occupied or permitted tenancy in part (no acceptance recorded) more than five years before suit | Court held claims against Jaco were perempted; peremptive period began when owner/tenants occupied in part (Aug 2006) and suit filed in 2014 was too late |
| Whether summary judgment for Roy Carubba was appropriate | Carubba may have acted personally (permit filed in his name, license/contract signatures, alter-ego/veil-piercing and dual-capacity issues); outstanding discovery creates genuine issues | Carubba submitted contract/payment records showing CEI/Carubba, Inc. performed work and no evidence he individually contracted or was paid | Court held summary judgment was erroneous: genuine issues of material fact exist about which entity contracted/performed and possible personal liability; reversed and remanded |
Key Cases Cited
- Thrasher Constr., Inc. v. Gibbs Residential, L.L.C., 197 So.3d 283 (La. App. 4th Cir. 2016) (explains legislative purpose of La. R.S. 9:2772 to limit contractor liability for old projects)
- Guidry v. Sunset Recreation Club, Inc., 571 So.2d 870 (La. App. 3rd Cir. 1990) (peremptive period under § 9:2772 runs from acceptance recordation or owner occupancy in part)
- Naghi v. Brener, 17 So.3d 919 (La. 2009) (peremption cannot be interrupted or suspended; claim extinguished after peremptive period)
- Burns v. Sedgwick Claims Mgmt. Servs., 165 So.3d 147 (La. App. 5th Cir. 2014) (standard of appellate review for summary judgment is de novo)