St. Charles Parish School Bd. v. GAF Corp.

• Decision Date: 12 January 1987
• Docket Number: No. 85-CC-2334,85-CC-2334
• Citation: 512 So.2d 1165
• Parties: ST. CHARLES PARISH SCHOOL BOARD v. GAF CORPORATION, et al.
• Court: Louisiana Supreme Court

Page 1165

512 So.2d 1165

ST. CHARLES PARISH SCHOOL BOARD v. GAF CORPORATION, et al.

No. 85-CC-2334.

Supreme Court of Louisiana.

Jan. 12, 1987.

Rehearing Granted March 12, 1987.

On Rehearing Aug. 7, 1987.

Herschel L. Abbott, Jr., David Israel, Carl D. Rosenblum, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-applicant.

James B. Irwin, Gus A. Fritchie, III, Montgomery, Barnett, Brown & Read, Robert N. Ryan, Bienvenu, Foster, Ryan & O'Bannon, New Orleans, William O. Bonin, Landry, Watkins & Bonin, New Iberia, J. Michael Johnson, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, James I. Regan, Covington, Gerard G. Metzger, Metairie, for plaintiff-respondent.

LEMMON, Justice. ^*

This action by the owner of a school building, seeking to recover damages caused by alleged defects in the construction of the building, was filed more than three years after the acceptance of the construction. We granted certiorari to review the trial court's overruling of an exception of prescription filed by the general contractor based on La.R.S. 38:2189. ¹ We now conclude that the three-year limitation established by La.R.S. 38:2189 for the filing of an action against a contractor in connection with the construction of a public building is a prescriptive period which is subject to suspension during the period in which the cause of action for construction defects is not known or reasonably knowable to the state agency or board which owns the building.

In September, 1973, plaintiff School Board entered into a contract for the construction of a school building with defendant general contractor. On August 6, 1975, the Board recorded its acceptance of the building.

Sometime after the Board began to use the building, leaks developed in the roof. The Board initially attributed the leaks to normal problems with a flat roof. When leaks continued to occur, however, the Board hired a consultant in 1984 to investigate the cause of the persistent problem. Upon being advised that the entire roof needed to be replaced on account of design and workmanship defects, the Board filed this suit on November 26, 1984 against the general contractor, as well as the architects, certain subcontractors and the manufacturers of certain building materials.

The general contractor filed an exception of prescription on the basis of La.R.S. 38:2189, which provides:

"Any action against the contractor on the contract or on the bond or against the contractor and/or surety on the bond furnished by the contractor, all in connection with the construction, alteration or repair of any public works let by the state or any of its agencies, boards or sub-divisions shall prescribe three years from the registry or acceptance of such work or notice of default of the contractor unless otherwise limited in this said chapter."

The trial court overruled the exception. On application for supervisory writs under La.C.C.P. Art. 2201, the intermediate court declined to review the interlocutory judgment, reasoning that La.R.S. 38:2189 is a prescriptive statute which applies only to apparent defects, as contrasted with La.C.C. Art. 2762 and La.R.S. 9:2772, which are peremptive statutes generally affording the owner of a building ten years to discover and sue for hidden construction defects. ² We then granted certiorari. 481 So.2d 1341 (La.1986).

The threshold inquiry is the effect of La.R.S. 38:2189, which was enacted in 1962, upon the preexisting La.C.C. Art. 2762.

In Orleans Parish School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1971), this court concluded that La.C.C. Art. 2762 establishes a substantive right in favor of the owner of a building making the contractor and the architect responsible if the building falls to ruin, in whole or in part, within ten years on account of badness in workmanship. Because the construction of the building was completed before the 1962 enactment of La.R.S. 38:2189, this court held that the subsequently enacted statute, even if viewed as a statute of peremption, could not affect or impair the owner's vested substantive right against the contractor when the building fell to ruin on account of badness of workmanship within ten years of completion.

This court in Pittman characterized the ten-year period of La.C.C. Art. 2762, which was taken from Code Napoleon Article 1792 (1804), as an "implied in law warranty period". As stated in 2 M. Planiol, Traite Elementaire de Droit Civil § 1909 (Louisiana State Law Institute trans. 1959), the law declares building contractors responsible for their work during ten years. Planiol particularly noted that vices of construction do not appear at once, but after the building is being used. Because La.R.S. 38:2189 was not applicable to the construction in that case, it was not necessary to decide whether the prescriptive period established in La.R.S. 38:2189 shortened or otherwise had any effect upon the ten-year warranty period of La.C.C. Art. 2762. ³

In State ex rel Guste v. Simoni, Heck & Associates, 331 So.2d 478 (La.1976), this court discussed, but did not resolve, the question of the effect of La.R.S. 38:2189 when the construction was completed after enactment of that statute. Reasoning that La.R.S. 38:2189 by its terms applies only to the general contractor and its surety on a public construction contract, this court held that the architect's plea of prescription based on La.R.S. 38:2189 was without merit. Inasmuch as the Simoni decision merely held that an architect is not a contractor within the contemplation of La.R.S. 38:2189, that case does not stand for the proposition that La.R.S. 38:2189 shortened La.C.C. Art. 2762's period of responsibility of a general contractor for defects in the construction of a public building.

Thus, the issue remains open whether La.R.S. 38:2189 absolutely curtails the right of a public board to hold the contractor responsible for defective workmanship in a public building when the defect manifests itself within less than ten years, but more than three years, after acceptance of the construction. An affirmative answer to this question would require, among other things, according La.R.S. 38:2189 the effect of a peremptive statute.

A person may lose his right to assert a cause of action because of passage of time by either peremption or prescription. Peremption is a limitation of time fixed by law for the existence of a right, and the effect of peremption is that the right becomes extinguished unless exercised within that period. La.C.C. Art. 3458. Prescription is also a limitation of time fixed by law for the exercise of a right, and the effect of prescription when pleaded by the obligor is that the obligee's untimely action is barred. While La.C.C. Art. 3461 provides that peremption may not be renounced, interrupted or suspended, prescription may be interrupted or suspended. Furthermore, a prescriptive statute is subject to the discovery rule embodied in the doctrine of contra non valentem agere nulla currit praescriptio, when that doctrine is invoked to suspend the running of prescription during the period in which the cause of action is not known or reasonably knowable to the plaintiff. ⁴ Corsey v. State of Louisiana, Department of Corrections, 375 So.2d 1319 (La.1979).

It is often difficult to determine whether a period of time fixed by law is peremptive or prescriptive. The determination of whether a statute has a peremptive effect is largely a matter of legislative intent and of construction of the particular statute. Pounds v. Schori, 377 So.2d 1195 (La.1979); Griffin v. Succession of Branch, 479 So.2d 324 (La.1985), Dennis, J., dissenting, 480 So.2d 313 (La.1986). If the statute does not indicate in plain words that the period is one of peremption, the court must analyze the statute in its entirety, with particular focus on whether the purpose sought to be achieved involves matters of public policy or other compelling reasons for absolutely extinguishing a right which is not promptly exercised. Thus, the question in this case is whether La.R.S. 38:2189 indicates a legislative intent for a peremptive effect precluding the applicability of the doctrine of contra non valentem.

This court in Crier v. Whitecloud, 496 So.2d 305 (La.1986), held that the Legislature intended La.R.S. 9:5628 as both a prescriptive and a peremptive statute. That statute generally provides a prescriptive period for claims of medical malpractice of either one year from the date of the act or one year from the date of discovery of the injury, but the statute expressly limits the applicability of the discovery rule by requiring that malpractice claims in all events be filed within three years of the act. ⁵

La.R.S. 9:2772 was at issue in Burmaster v. Gravity Drainage District No. 2 of the Parish of St. Charles, 366 So.2d 1381 (La.1978). This court held that the statute, which prohibits bringing an action for injury and death allegedly caused by a construction defect more than ten years after acceptance of the construction, did not offend the plaintiff's constitutional right to due process because the statute merely prevented what might otherwise have been a cause of action from ever arising. The statute in Burmaster was clearly peremptive, both in its plain words (see footnote 2) and in its evident legislative intent.

Unlike the statute in the Crier case, La.R.S. 38:2189 does not mention, one way or the other, the applicability of the discovery rule, nor does it preclude the courts from applying the discovery rule in those cases in which it would be applicable under long standing jurisprudence. And unlike the statute in the Burmaster case, La.R.S. 38:2189 does not use the term "peremption" and does not set an outer limit for bringing an action with terms like "in all events" (Crier ) or "in no event more than" (Burmaster ). La.R.S. 38:2189, by its terms, merely provides a prescriptive period.

In order to achieve a...