216 So. 3d 999
La. Ct. App.2016Background
- In Dec. 2007 Specialty Pools contracted to design/construct a custom pool for Duvio; contract contained workmanship warranty for one year and separate piling proposal; work completed July 2008 after promised April date.
- Duvio sued Specialty Pools (and insurer Scottsdale) alleging defective construction (including differential settlement, cracking, leaking), negligence, breach of contract, redhibition, and claimed $500/day liquidated damages for late completion.
- Defendants moved for partial summary judgment and exceptions of peremption (La. R.S. 9:2772 five-year peremptive period for construction defects) and Scottsdale sought summary judgment based on CGL policy exclusions (earth/land movement and professional liability).
- Trial: jury awarded Duvio $343,004.81 plus $48,000 in liquidated damages; trial court denied defendants’ pre- and post-trial motions on peremption and insurance exclusions; judgment entered against Specialty Pools and Scottsdale in solido.
- On appeal defendants challenged (inter alia) denial of peremption, admissibility/adequacy of evidence for oral liquidated-damages agreement, jury instruction/interrogatory and factual causation as to earth-movement exclusion, and applicability of the professional-liability exclusion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/corroboration of oral liquidated-damages agreement | Duvio: written proposal was not fully integrated; oral agreement (deadline + $500/day) may be proved and corroborated | Specialty Pools: parol evidence barred; Article 1846 requires corroboration beyond plaintiff and evidence here is insufficient | Court: parol evidence admissible to show side agreement; sufficient corroborating circumstances and disputed testimony precluded directed verdict—issue for jury |
| Peremption (La. R.S. 9:2772) for differential-settlement claim | Duvio: Second Amended Petition relates back to original 2009 petition under La. C.C.P. art. 1153; original pleadings gave fair notice of foundation/failure allegations | Defendants: claim arose after five-year peremptive period and cannot relate back per Naghi | Court: Scaglione distinction controls; amended claim arises from same factual thrust as original petition, so it relates back and is timely |
| Earth/land-movement policy exclusion (causation & jury instructions) | Duvio: damage caused by pilings slipping (improper installation), not earth movement; jury should be allowed to find pilings as cause | Scottsdale: exclusion unambiguously bars coverage if earth movement (differential settlement) directly or indirectly contributed; requested specific instruction and interrogatory tracking policy language | Court: trial instruction/interrogatory adequately presented whether damage was caused by earth movement, pilings, or both; jury’s factual finding that pilings (not earth movement) caused damage was supported by expert testimony and not manifestly erroneous |
| Professional-liability policy exclusion (engineering services) | Duvio: Specialty Pools acted as contractor; design/installation were construction services, not excluded professional engineering services | Scottsdale: pool foundation design/hiring (or failure to hire) an engineer is rendering or failing to render engineering services which exclusion covers | Court: insurer failed to prove the exclusion applied; evidence did not show Specialty Pools acted in capacity as an engineer or performed professional engineering services |
Key Cases Cited
- Bernard v. Iberia Bank, 832 So.2d 355 (La. App. 4 Cir. 2002) (parol evidence and contract interpretation principles)
- Safeguard Storage Props., L.L.C. v. Donahue Favret Contractors, Inc., 60 So.3d 110 (La. App. 4 Cir. 2011) (admission of extrinsic evidence where written agreement is not fully integrated)
- Guilbeau v. C & D Reprographics—Lafayette, Inc., 568 So.2d 206 (La. App. 3 Cir. 1990) (parol-evidence principles)
- Kirsch v. Pier Orleans, Inc., 362 So.2d 1182 (La. App. 4 Cir. 1978) (side-agreement/parol evidence)
- Gammon Enters., Inc. v. Vanguard Inv., Inc., 449 So.2d 1077 (La. App. 4 Cir. 1984) (non-integrated side agreements)
- Suire v. Lafayette City-Parish Consol. Govt., 907 So.2d 37 (La. 2005) (corroborating circumstances must be independent of plaintiff)
- Naghi v. Brener, 17 So.3d 919 (La. 2009) (relation-back and peremption interaction; limits on adding parties/claims after peremptive period)
- Scaglione v. Juneau, 40 So.3d 127 (La. 2010) (distinguishing Naghi; relation-back allowed where original pleading set forth viable claim and amended pleading arises from same facts)
- Adams v. Rhodia, 983 So.2d 798 (La. 2008) (standard for reviewing jury instructions)
- Gunter v. Planche, 439 So.2d 437 (La. 1983) (Article 1153 relation-back requires fair notice of the general fact situation)
- Yount v. Maisano, 627 So.2d 148 (La. 1993) (insurance exclusions construed narrowly; coverage favored)