BEAR INDUSTRIES, INC.
THE HANOVER INSURANCE COMPANY & AMTEK OF LOUISIANA, INC.
Appeal from the Nineteenth Judicial District Court In and for
the Parish of East Baton Rouge State of Louisiana No. 628747
Honorable R. Michael Caldwell, Judge Presiding
L. Kaster, Teresa D. Cop, Allyson S. Jarreau, Counsel for
L. Floyd Counsel for Defendant/ Appellee
Michael R. C. Riess Christy R. Bergeron Counsel for
BEFORE: McCLENDON, WELCH, AND THE RIOT, JJ.
matter, a contractor and its surety appeal a trial court
judgment in favor of a supplier of materials used on a
construction project. For the reasons that follow, we affirm.
AND PROCEDURAL HISTORY
Industries, Inc. (Bear) supplied limestone and sand materials
to Amtek of Louisiana, Inc. (Amtek), a subcontractor on the
New Roads Wal-Mart Supercenter project. The contractor was
Hudson Construction Company of Tennessee (Hudson). Hanover
Insurance Company (Hanover), as surety for Hudson, furnished
the payment bond for the project. Bear, Hudson, and Amtek
executed a Joint Check Agreement, and all payments to Bear on
the project were by joint check from Hudson.
sold the materials to Amtek from May 21, 2012, to July 12,
2013. It is undisputed that the materials were delivered.
However, at some point, a dispute arose between Amtek and
Hudson, and Hudson stopped making payments. Bear filed a
Statement of Claim and Privilege on September 16, 2013,
alleging it was owed a total of $259, 148.00 for the
materials furnished and installed on the project. Payment was
still not made, and on March 6, 2014, Bear filed suit against
Amtek and Hanover under the Private Works Act. In response,
Amtek filed a cross-claim against Hanover and Hudson,
claiming an unpaid amount of $701, 296.52. Hudson filed a
peremptory exception raising the objection of prematurity,
claiming that under its subcontract with Amtek all disputes
had to be arbitrated. On July 9, 2014, the trial court
granted the exception as to Hudson and ordered that Hudson
and Amtek arbitrate their disputes.
arbitration was conducted in April of 2016, and a Ruling was
rendered on June 1, 2016. Thereafter, Hudson and Hanover filed a
Motion to Confirm the Arbitration Award, and Amtek filed a
motion to confirm as well. Following a hearing on August 8,
2016, the trial court rendered judgment, and on August 24,
2016, the trial court signed its judgment, confirming the
on August 29, 2016, the trial court held a bench trial on
Bear's claims. On October 20, 2016, the trial court read
its reasons for judgment into the record, and on October 31,
2016, the trial court signed a judgment in favor of Bear and
against Hanover and Amtek in the full sum of $259, 914.80.
The trial court also found Hanover obligated to Bear in the
amount of $25, 914.80 for attorney fees and found Amtek
obligated to Bear in the amount of $40, 000.00 for attorney
fees. Lastly, the trial court found Amtek obligated to Hudson
in the amount of $40, 000.00 for attorney fees expended in
defense of Bear's claim. Hudson and Hanover then filed a
suspensive appeal, asserting several assignments of error,
essentially arguing that Bear's lien did not comply with
the Private Works Act and therefore was invalid. Hudson and
Hanover additionally assert that the trial court erred in
limiting Hudson's recovery for attorney fees from Amtek
to $40, 000.00.
Louisiana Private Works Act, LSA-R.S. 9:4801, et
seq., was enacted to facilitate the construction of
improvements on immovable property; it serves this purpose by
granting certain rights to enumerated persons to facilitate
recovery of the costs of their work from an owner with whom
they lack privity of contract. Wholesale
Electric Supply Company v. Honeywell International,
Inc., 16-1180 (La.App. 1 Cir. 5/11/17), 221 So.3d 98,
101. The Private Works Act is in derogation of general
contract law; therefore, it must be strictly construed. In
interpreting the Private Works Act, care must be taken not to
overlook the legislative intent and fundamental aim of this
act, which is to protect materialmen, laborers, and
subcontractors who engage in construction and repair
projects. Bernard Lumber Co., Inc. v. Lake Forest Const.
Co., Inc., 572 So.2d 178, 181 (La.App. 1 Cir. 1990).
Revised Statutes 9:4802 clearly defines those persons granted
a claim or privilege pursuant to the Act and provides, in
A. The following persons have a claim against the owner and a
claim against the contractor to secure payment of the
following obligations arising out of the performance of work
under the contract:
* * *
(3) Sellers, for the price of movables sold to the contractor
or a subcontractor that become component parts of the
immovable, or are consumed at the site of the immovable, or
are consumed in machinery or equipment used at the site of
* * *
B. The claims against the owner shall be secured by a
privilege on the immovable on which the work is performed.
C. The owner is relieved of the claims against him and the
privileges securing them when the claims arise from the
performance of a contract by a general contractor for whom a
bond is given and maintained as required by R.S. 9:4812 and
when notice of the contract with the bond ...