JAMES E. SHIELDS, JR., CHRISTINE F. SHIELDS, JAMES E. SHIELDS, III, AND JOSEPH LUKE SHIELDS
ALVIN R. SAVOIE & ASSOCIATES, INC. D/B/A SAVOIECONSRUCTION, INC., FOSTER-TAYLOR FIREPLACES, INC., AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY, THE TRAVLERS INDEMNITY COMPANY OF CONNECTICUT, ROSS SAVOIE, ROSS SAVOIE CONSTRUCTION, LLC, AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY, AMERICA'S CHOICE 2-10 HOME BUYER'S WARRANTY, AND JKL INSURANCE COMPANY ASI LLOYDS AS SUBROGEE OF JAMES AND CHRISTINE SHIELDS
SAVOIE CONSTRUCTION, INC., SAVOIE CONSTRUCTION AND DEVELOPMENT, LLC, AND FOSTER-TAYLOR FIREPLACES, INC.
Appeal from the 22nd Judicial District Court In and for the
Parish of St. Tammany State of Louisiana Trial Court No.
2012-10392 Consolidated With 2012-10262 Honorable Peter J.
Garcia, Judge Presiding
E. Shields, Jr. James E. Shields, Sr. Gretna, LA Attorneys
for Plaintiffs-Appellants, James E. Shields, Jr., Christine
F. Shields, James E. Shields, III and Joseph Luke Shields
J. Richaud Metairie, LA Attorney for Defendant-Appellee, J.
Christopher R. Teske Eric S. Charleston New Orleans, LA
Attorneys for Defendant-Appellee, American Empire Surplus
Lines Insurance Company
M. Casey Mandeville, LA Attorney for Defendants-Appellees,
Foster-Taylor Fireplaces, Inc., and the Travelers Indemnity
F. Lagarde Slidell, LA Attorney for Defendant-Appellee, J.
Ross Savoie Construction, LLC
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
not the first time this consolidated matter has been before
this court.The ongoing litigation involves claims for
damages arising out of a January 2011 residential fire that
originated in an outdoor fireplace in a home that was
constructed between 2005 and 2006, and then occupied by the
homeowners in September 2006. In this appeal, the homeowners
challenge the summary judgment dismissal, on the grounds of
peremption, of additional defendants (and an insurer), who
were involved with the alleged defective installation of the
outdoor fireplace during the original construction of the
homeowners, James E. Shields, Jr. and Christine F. Shields,
along with their two sons, originally brought suit in January
2012, against the builder of their Slidell, Louisiana home,
Alvin R. Savoie & Associates, Inc., d/b/a Savoie
Construction. The homeowners also named the builder's
insurer, American Empire Surplus Lines Insurance Company, the
fireplace installer, Foster-Taylor Fireplaces, Inc., and the
manufacturer of the fireplace, Lennox Hearth Products, LLC.
In a second supplemental and amending petition filed with
leave of court on June 15, 2016,  the homeowners named new
defendants, J. Ross Savoie and Ross Savoie Construction LLC
(collectively referred to as "Savoie"), and their
commercial general liability insurer, American Empire Surplus
Lines Insurance Company ("American Empire"),
contending that Savoie, as a subcontractor for the builder,
along with Foster-Taylor Fireplaces, was responsible for
negligently installing the defective outdoor fireplace during
the original construction of the residence.
meantime, the homeowners were also in the process of
appealing the summary judgment dismissal of their builder and
its insurer, on the grounds that the homeowners' claims
for defective and negligent construction against the builder
were barred by the exclusivity provisions of the Louisiana
New Home Warranty Act (NHWA), and that those claims were
statutorily perempted. On February 17, 2017, this court
affirmed the dismissal of the homeowners' NHWA claims
against the builder and its insurer as perempted. See
Shields I, 214 So.3d at 34-35, and Shields
II, 217 So.3d at 421. The Supreme Court denied writs in
Shields I on May 19, 2017.
the first two appeals were pending, Savoie filed a motion for
summary judgment on October 7, 2016. Savoie sought dismissal
of the homeowners' claims based on peremption pursuant to
La. R.S. 9:2772,  which bars any claim for damage to
property arising out of defective construction of an
immovable, or improvement to immovable property, more than
five years after the homeowner occupies the home. Shortly
thereafter, Savoie's insurer, American Empire, filed a
motion for summary judgment arguing that by extension, since
the homeowners had no valid claims against its insured,
Savoie, then American Empire could have no liability by
operation of law. The district court granted the motions for
summary judgment, dismissing all of the homeowners'
claims against Savoie and American Empire on the grounds of
peremption. The district court also denied the
homeowners' motion for new trial. The homeowners now
appeal, urging this court to find error in the ...