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Shields v. Alvin R. Savoie & Associates, Inc.

Court of Appeals of Louisiana, First Circuit

November 1, 2017

JAMES E. SHIELDS, JR., CHRISTINE F. SHIELDS, JAMES E. SHIELDS, III, AND JOSEPH LUKE SHIELDS
v.
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
v.
SAVOIE CONSTRUCTION, INC., SAVOIE CONSTRUCTION AND DEVELOPMENT, LLC, AND FOSTER-TAYLOR FIREPLACES, INC.

         On 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

          James 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

          George J. Richaud Metairie, LA Attorney for Defendant-Appellee, J. Ross Savoie

          Christopher R. Teske Eric S. Charleston New Orleans, LA Attorneys for Defendant-Appellee, American Empire Surplus Lines Insurance Company

          Sean M. Casey Mandeville, LA Attorney for Defendants-Appellees, Foster-Taylor Fireplaces, Inc., and the Travelers Indemnity Company Connecticut

          Ross F. Lagarde Slidell, LA Attorney for Defendant-Appellee, J. Ross Savoie Construction, LLC

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

          HIGGINBOTHAM, J.

         This is not the first time this consolidated matter has been before this court.[1]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 home.[2]

         BACKGROUND

         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, [3] 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.

         In the 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.

         While 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, [4] 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 ...


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