Opinion
NUMBER 2012 CA 0322
01-08-2013
ELIZABETH B. STONE v. CANNON & CANNON CONSTRUCTION, L.L.C.
Robert A. Lenter New Orleans, LA and Scott W. McQuaig Metairie, LA Attorneys for Appellant Plaintiff - Elizabeth B. Stone Thomas L. Gaudry, Jr. Jairo F. Sanchez Gretna, LA Attorneys for Appellee Defendant - Cannon & Cannon Construction, L.L.C. John J. Rabalais Janice B. Unland Matthew D. Crumhorn Covington, LA Attorneys for Appellees Intervenors - Regions Bank and New Hampshire Ins. Co.
NOT DESIGNATED FOR PUBLICATION
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany, Louisiana
Trial Court Number 2010-15676
Honorable Raymond S. Childress, Judge
Robert A. Lenter
New Orleans, LA
and
Scott W. McQuaig
Metairie, LA
Attorneys for Appellant
Plaintiff - Elizabeth B. Stone
Thomas L. Gaudry, Jr.
Jairo F. Sanchez
Gretna, LA
Attorneys for Appellee
Defendant - Cannon & Cannon
Construction, L.L.C.
John J. Rabalais
Janice B. Unland
Matthew D. Crumhorn
Covington, LA
Attorneys for Appellees
Intervenors - Regions Bank
and New Hampshire Ins. Co.
BEFORE: PARRO, HUGHES, AND WELCH, JJ.
WELCH , J.
Elizabeth B. Stone appeals a judgment sustaining the peremptory exception raising the objection of peremption filed by the defendant, Cannon & Cannon Construction, L.L.C. ("CCC"), and dismissing her claims and the claims of the intervenors, Regions Bank and New Hampshire Insurance Company ("NHIC"), against CCC. We affirm in compliance with Uniform Rules, Courts of Appeal—Rule 2-16.1(B).
On September 3, 2010, Ms. Stone filed a petition for damages against CCC, alleging that on August 28, 2009, while in the course and scope of her employment with Regions Bank, she tripped and fell because of an uneven surface in the subfloor of the bank building. She further alleged that the condition of the subfloor was the result of the negligence or fault of CCC, since CCC was the contractor that had performed renovations to the bank building at the location of the fall. Ms. Stone further alleged that she sustained injuries as a result of that fall and that CCC was liable to her for her damages. She also asserted that within one year of the fall, she filed a disputed claim for compensation, thereby interrupting prescription. Thereafter, Regions Bank and its workers' compensation insurer, NHIC, filed a petition of intervention, seeking to recover workers' compensation benefits paid to or on behalf of the plaintiff.
In response, CCC filed a peremptory exception raising the objection of peremption based on La. R.S. 9:2772, which provides that any claim brought against a contractor must be brought within five years from either: (1) the date the acceptance of the work by the owner was filed for registry; or (2) if no acceptance was filed within six months from the date the owner occupied or took possession of the improvement, then from the date the improvement was thus occupied by the owner. In support of the exception, CCC offered evidence establishing that on February 1, 2005, Regions Bank entered into a contract with CCC to perform interior renovations and construction to the bank building; that on April 26, 2005, Regions Bank began to occupy all areas where CCC had performed the construction and renovation work; and that by May 1, 2005, CCC had completed all of the construction and renovation work at the bank building.
After a hearing, the district court sustained the exception and dismissed the claims of the plaintiff and the intervenors. A written judgment in accordance with the district court's judgment was signed on October 21, 2011, and it is from this judgment that the plaintiff has appealed. On appeal, the plaintiff essentially argues that the district court erred in sustaining the exception of peremption, because her workers' compensation suit against Regions Bank interrupted prescription as to all parties responsible for her injuries.
At the applicable time herein, Louisiana Revised Statute 9:2772 provided, in part:
These provisions were subsequently amended by 2012 La. Acts, No. 762, §1.
A. No action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable or movable property which may include, without limitation, consultation, planning, designs, drawings, specification, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought against any person performing or furnishing land surveying services, as such term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables, or improvement to immovable property, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9):
(1)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner.
(b) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than five years after the improvement has been thus occupied by the owner.
* * *
B. (1) The causes which are perempted within the time described above include any action:
* * *
(c) For injury to the person or for wrongful death arising out of any such deficiency.
* * *
(3) This peremptive period shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third-party practice, and whether brought by the owner or by any other person.
(Emphasis added)
The legislature established the peremptive period in La. R.S. 9:2772 to protect "any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables" or improvement to immovable property from liability for past construction projects, which could extend for an indefinite period of time. Burkart v. Williamson, 2009-0294 (La. App. 1st Cir. 11/13/09), 29 So.3d 635, 639. To achieve this purpose, La. R.S. 9:2772 establishes a definite time period from which the peremptive period starts to run, which is not dependent on the discovery of the defect. Id. Because the period is peremptive, it cannot be renounced, interrupted, or suspended. Id.; La. C.C. art. 3461,
Therefore, according to La. R.S. 9:2772(A)(1), the peremptive period for filing an action against CCC commenced to run from either the date the acceptance of the work by Regions Bank was filed for registry, or if no acceptance was filed within six months from the date Regions Bank occupied or took possession of the improvement, then from the date the improvement was thus occupied by Regions Bank. In this case, there was no evidence establishing when or if an acceptance of the work was filed for registry by Regions Bank. However, CCC offered evidence establishing (and the plaintiff and the intervenors did not dispute) that on April 26, 2005, Regions Bank began to occupy all areas of the bank building where CCC had performed the construction and renovation work and that by May 1, 2005, CCC had completed all of the construction and renovation work at the bank building. The plaintiff did not file suit naming CCC as a defendant until September 3, 2010, more than five years after Regions Bank occupied or took possession of the area where the improvements or renovations were performed. Therefore, the plaintiff's and intervenors' claims against CCC are perempted.
In accord Burkart, 29 So.3d at 639-40.
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Accordingly, we find no error in the district court's judgment sustaining the peremptory exception raising the objection of peremption filed by CCC and dismissing the plaintiff's and intervenors' claims. All costs of this appeal are assessed to the plaintiff, Elizabeth B. Stone.
AFFIRMED.