Ebinger v. Venus Construction Corp.
65 So. 3d 1279
La.2011Background
- In 1995, Ebingers contracted Venus Construction to build a home; occupancy occurred in 1997 with CO issued April 22, 1997.
- In 2003, Ebingers sued Venus for defects allegedly affecting foundation; Venus answered with a third‑party indemnity demand against Post‑Tension Slabs, Inc. and engineer Carubba.
- Carubba sought peremption under La. Rev. Stat. 9:5607 (five‑year period for engineers), and trial court granted the exception, relying on retroactive application.
- Third Circuit Ebinger I held Venus’ indemnity claim did not exist before 9:5607 and was perempted; Ebinger II held 9:2772’s ten‑year period could apply, starting at occupancy, making Venus’ claim timely.
- Louisiana Supreme Court reversed, holding the 2003 amendment to 9:2772 applies; peremption begins in 1997; Venus’ indemnity claim is perempted under the five‑year period and the third‑party demand is extinguished.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which peremptive period governs 9:2772 indemnity claims? | Venus: ten years under 1997 version; Ebinger II controlling. | Post‑Tension: five years under 2003 amendment; applied retroactively. | Five‑year peremptive period applies. |
| When does the applicable peremptive period begin for indemnity claims? | Begins at occupancy/acceptance (1997) per 9:2772. | Begins at occupancy (1997) regardless of vesting. | Peremption began April 22, 1997 (occupancy/CO). |
| Does the 2003 amendment to 9:2772 apply retroactively? | Should apply retroactively to vesting rights. | May apply retroactively if it does not disturb vested rights; may be prospective. | 2003 amendment applies; retroactivity limited so as not to disturb a vested right; Venus’ right was not vested before amendment, so apply prospectively to this claim. |
| Did Venus' indemnity right vest before the 2003 amendment? | Vested when damage manifested; entitlement accrued. | Vested upon filing or judgment in main action; immediate vesting possible at damage. | Venus’ indemnity right did not vest upon damage; it vested only contingent on being cast in judgment; thus not vested before 2003 amendment. |
| What is the net effect on Venus' third‑party claim against Post‑Tension? | If vesting occurred later, 9:2772 ten‑year period may save claim. | Five‑year peremptive period applies; claim perempted. | Claim perempted under five‑year period; judgment reinstated for trial court. |
Key Cases Cited
- Nassif v. Sunrise Homes, 739 So.2d 183 (La. 1999) (indemnity framework; when indemnity action may lie)
- Elevating Boats, Inc. v. St. Bernard Parish, 795 So.2d 1153 (La. 2001) (retroactivity and peremption considerations)
- Sawicki v. K/S Stavanger Prince, 802 So.2d 598 (La. 2001) (vesting and peremption conceptions)
- Lott v. Haley, 370 So.2d 521 (La. 1979) (remedial nature of statutes of limitation and retroactivity)
- Ebinger v. Venus Constr. Corp. (Ebinger I), 995 So.2d 1224 (La. App. 3 Cir. 2008) (peremption and vesting under prior rules)
- Ebinger v. Venus Constr. Corp. (Ebinger II), 48 So.3d 375 (La. App. 3 Cir. 2010) (conflicting interpretation of 9:2772 regarding vesting)
- Metairie III v. Poche Constr., Inc., 49 So.3d 446 (La. App. 4 Cir. 2010) (indemnity timing in third‑party claims)