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Limitations Of Contractor's Immunity Under La. R.S. 9:2771
By Teresa L. Fiore Hatfield, Esq.
Louisiana Revised Statute 9:2771 provides statutory immunity for contractors. La. R.S. 9:2771 provides:

No contractor, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.[1]

It is well settled in Louisiana that a contractor's immunity from liability extends to third party's claims, including tort claims.[2] Immunity under La. R.S. 9:2271 has also been applied to what would be intentional torts committed unintentionally in performing in accordance with the plans and specifications.[3] Immunity has even been found applicable when the plans and specifications adhered to by the contractor are not in writing.[4]

However, the statutory immunity provided under La. R.S. 9:2771 has limitations. Specifically, La. R.S. 9:2771 does not provide absolute immunity from personal injury actions, nor, under a recent ruling from the Louisiana First Circuit, does it apply to the removal of some materials from a worksite.

While contractor's immunity from liability extends to third party's tort claims,[5] there is one exception that has been carved out under Louisiana jurisprudence: a contractor can be responsible to third parties after following the plans and specifications which he did not make or cause to be made, if he knew or should have known that a dangerous hazard (of bodily injury) to a third party was likely to ensue, and the contractor failed to notify the owner.[6] In Degeneres v. Burgess, the court found the contractor's immunity provided by La. R.S. 9:2771, applied to a third party's claims, unless the contractor "had a justifiable reason to believe that adherence to the plans and/or specifications would create a hazardous condition."[7] Again, in Dumas v. Angus Chemical Company, Inc.,[8] the court found the contractor's immunity provided by La. R.S. 9:2771 applied to a third party's tort claims, "when the contractor has no reason to believe the alleged deficiencies contained in such plans and specifications would lead to a dangerous condition."

Recent jurisprudential limitations have also been established regarding the immunity which applies (or does not apply) to the removal of materials from a worksite. In Barabay Property Holding Corp. v. Boh Brothers Construction Co., L.L.C.,[9] the First Circuit Court of Appeals recently held that: "the process of removing soil does not constitute 'destruction or deterioration of or defects in any work constructed or under construction,' so as to entitle Boh Brothers to statutory immunity under La. R.S. 9:2771."[10] In the Barabay case, Barabary Property Holding Corporation ("Barabay") sought recovery for soil removed from its property from Boh Bros Construction Co., L.L.C. (Boh Bros.) who was hired by Jefferson Parish to install a pipeline. Under the terms of the contract the excavated material, if not usable to backfill the pipe, was to be disposed of off site. Boh Bros., pursuant to the terms of its contract with Jefferson Parish, excavated the site, then removed the excavated material. In its defense to Barabay's suit, Boh Brothers asserted, inter alia, contractor's immunity pursuant to La. R.S. 9:2771 because it had removed the dirt in complied with Jefferson Parish's plans and specifications. However, the First Circuit held that the removal of dirt did not meet the definition of work under La. R.S. 9:2771 sufficient to give rise to contractor's immunity. It should be noted that Barabay appealed to the Louisiana Supreme Court, and, in addition, the Louisiana Association of General Contractors, filed an Amicus Curiae brief to the Louisiana Supreme Court. In a curious move, the Supreme Court originally granted writs, heard oral arguments, and then denied writs on the grounds that "the writ of certiorari was improvidently granted."[11]
[1] For cases on contractor's immunity see, for example, Lake D'Arbonne Properties, L.L.C. v. Utility Construction, Inc., 41, 671-CA (La.App. 2 Cir. 1/31/07), 949 So.2d 590; Covington v. Heard, 428 So.2d 1132 (La.App. 1 Cir. 1983); Pittman Construction Company, Inc. v. City of New Orleans, 178 So.2d 312 (La.App. 4 Cir. 1965.

[2] Richard v. State of Louisiana, through the Department of Transportation and Development, 610 So.2d 839 (La.App. 1 Cir. 1992). See also, La. R.S. 9:2771.

[3] In the case of Pearce v. L.J. Earnest, Inc.,411 So.2d 1276 (La.App. 3 Cir. 1972) the Third Circuit found that statutory immunity under La. RS. 9:2771 also applies to torts that would fall within the realm of intentional torts, such as trespass to land. In Pearce, plaintiffs, who were property owners, filed suit against a contractor who performed work on their property under contract with the Louisiana Department of Transportation and Development (DOTD). The contractor (presumably without knowledge that DOTD had not secured permission of the plaintiffs) trespassed on plaintiffs' land in carrying out the plans and specifications of DOTD. The court, finding that the contractor should be able to rely on the plans and specifications, found that a trespass committed during the execution of the plans and specifications is a 'defect in constructing the improvement such that the contractor should not be liable for work done in accordance with the plan.'

[4] Smith v. Shell Oil Company, 564 So.2d 712 (La.App. 4 Cir. 1990).

[5] Richard v. State of Louisiana, through the Department of Transportation and Development, 610 So.2d 839 (La.App. 1 Cir. 1992). See also, La. R.S. 9:2771.

[6] Oxley v. Sabine River Authority, 94-1294 (La.App. 3 Cir. 10/19/95), 663 So.2d 497; Dumas v. Angus Chemical Co, 31,399-CA (La.App. 2 Cir. 1/13/99), 729 So.2d 624; Degeneres v. Burgess, 486 So.2d 769 (La.App. 1 Cir. 1986); Lyncker v. Design Engineering, Inc., 2007-CA-1522 (La.App. 4 Cir. 6/25/08), 988 So.2d 812; Martin v. Boh Brothers Construction Co., LLC, 2005-CA-1300 (La.App. 4 Cir. 6/7/06), 934 So.2d 196;Morgan v. Lafourche Recreation District No. 5, 2001 CA 1191 (La.App. 1 Cir. 6/21/02), 822 So.2d 716.

[7] Degeneres v. Burgess, 486 So.2d 769, 774 (La.App. 1 Cir. 1986).

[8] Dumas v. Angus Chemical Co, 31,399-CA (La.App. 2 Cir. 1/13/99), 729 So.2d 624, 628.

[9] Barabay Property Holding Corp., v. Boh Brothers Construction Co., L.L.C., 2007 CA 2005 (La.App. 1 Cir. 5/2/08), 991 So.2d 74.

[10] Barabay Property Holding Corp., v. Boh Brothers Construction Co., L.L.C., 2007 CA 2005 (La.App. 1 Cir. 5/2/08), 991 So.2d 74, cert. granted, 2208-C-1185 (La. 10/20/08), 993 So.2d 1270, cert. denied, 2008-C-1185 (La. 3/17/09), 6 So.3d 172.

[11] Barabay Property Holding Corp., v. Boh Brothers Construction Co., L.L.C., 2008-C-1185 p.1 (La. 3/17/09), 6 So.3d 172, 172,