Hanover Insurance Company v. Plaquemines Parish Government

Filing 728

ORDER AND REASONS DENYING 469 Motion to Dismiss for Failure to State a Claim; DENYING 471 Motion to Dismiss for Failure to State a Claim; DENYING 472 Motion to Dismiss for Failure to State a Claim; DENYING 479 Motion to Dismiss for Failur e to State a Claim; DENYING 491 Motion to Dismiss for Failure to State a Claim; DENYING 519 Motion for Partial Summary Judgment; GRANTING 517 Motion for Partial Summary Judgment as set forth in document. Signed by Judge Jane Triche Milazzo on 7/9/2015. (my)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HANOVER INSURANCE COMPANY

CIVIL ACTION

VERSUS

NO. 12–1680

PLAQUEMINES PARISH GOVERNMENT

SECTION "H"(5)

ORDER AND REASONS
Before the Court are five Motions to Dismiss (Docs. 469, 471, 472, 479, and
491) and two Motions for Partial Summary Judgment (Docs. 517 and 519). For
the following reasons, the Motions to Dismiss and All South's Motion for Partial
Summary Judgment (Doc. 519) are DENIED, and Plaquemines Parish's Motion
for Partial Summary Judgment (Doc. 517) is GRANTED. The Court holds that
comparative fault is not available as a defense to breach of contract claims under
Louisiana law.
BACKGROUND
In 2008, Defendant Plaquemines Parish ("the Parish") hired Catco
General Contractors to construct a community center in Boothville, LA. Plaintiff
1

Hanover Insurance Company issued a performance bond for the project. Due to
several disputes regarding the quality of the completed work, the Parish refused
to tender the final payment on the construction contract to Catco. Catco in turn
refused to pay certain subcontractors on the project. Those subcontractors filed
claims with Hanover seeking amounts due on the subcontracts. Hanover paid
those claims and instituted the instant litigation. Hanover claims that the
Parish wrongfully withheld the final payment from Catco, resulting in several
hundred thousand dollars in various claims against it.
On May 29, 2013, in response to Hanover's Complaint, the Parish asserted
a counterclaim against Hanover and a third-party demand against Catco and
several other entities who were involved in the design of the community center.
The Parish's counterclaim and third-party demand allege that Catco failed to
complete the construction according to specifications. On June 21, 2013, in
response to the Parish's counterclaim, Hanover filed a third-party demand
against several of the subcontractors involved in the construction of the
community center.
These initial filings spawned an avalanche of litigation. There are now
more than 90 pleadings and 30 parties in this matter. Generally speaking, there
are three layers of claims before the Court.1 The first consists of claims between
the Parish and the parties with which it contracted directly: Catco (the general
contractor); Sizeler, Thompson, Brown Architects (the architect); All South
Consulting Engineers, LLC (the project manager); and Hanover (Catco's surety)
1

The Court intends this description to be a general statement in order to add clarity to
this Order.

2

(collectively "the Primary Contractors"). The second layer of claims are the
Parish's claims against the subcontractors involved in the project. The Parish
has asserted both negligence and breach of contract claims against each of the
subcontractors. The Parish contends that the Primary Contractors and the
subcontractors are solidarily liable with each other pursuant to Louisiana law.
The Parish's solidarity allegations produced the third layer of claims. These are
claims between various contractors and/or subcontractors for contribution and
indemnity under Louisiana law. Additionally, some of the parties sued by the
Parish have asserted comparative fault as a defense to the Parish's breach of
contract claims. The Motions currently before the Court address the availability
of solidarity, comparative fault, and contribution claims under Louisiana law.
LEGAL STANDARD
I. Motion to Dismiss
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough
facts "to state a claim to relief that is plausible on its face."2 A claim is "plausible
on its face" when the pleaded facts allow the court to "draw the reasonable
inference that the defendant is liable for the misconduct alleged."3 A court must
accept the complaint’s factual allegations as true and must "draw all reasonable
inferences in the plaintiff’s favor."4 The court need not, however, accept as true
2

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007)).
3

Id.

4

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

3

legal conclusions couched as factual allegations.5 To be legally sufficient, a
complaint must establish more than a "sheer possibility" that the plaintiff’s
claims are true.6 The complaint must contain enough factual allegations to raise
a reasonable expectation that discovery will reveal evidence of each element of
the plaintiff's claim.7 If it is apparent from the face of the complaint that an
insurmountable bar to relief exists and the plaintiff is not entitled to relief, the
court must dismiss the claim.8
II. Motion for Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law."9 A genuine issue of fact exists only
"if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party."10
In determining whether the movant is entitled to summary judgment, the
Court views facts in the light most favorable to the non-movant and draws all
reasonable inferences in his favor.11 "If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
5

Iqbal, 556 U.S. at 678.

6

Id.

7

Lormand, 565 F.3d at 255–57.

8

Jones v. Bock, 549 U.S. 199, 215 (2007).

9

Fed. R. Civ. P. 56(c) (2012).

10

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

11

Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).

4

shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial."12 Summary judgment is
appropriate if the non-movant "fails to make a showing sufficient to establish the
existence of an element essential to that party’s case."13 "In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial."14 "We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts."15

Additionally, "[t]he mere argued existence of a factual

dispute will not defeat an otherwise properly supported motion."16
LAW AND ANALYSIS
The Motions currently before the Court fall into three categories. First,
the Parish's Motion for Partial Summary Judgment (Doc. 517) moves the Court
to strike all assertions of comparative fault as a defense to the Parish's breach
of contract claims. Second, three of the Motions to Dismiss (Docs. 471, 479, and
12

Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

13

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

14

John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
15

Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
16

Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

5

491) seek to dismiss the Parish's solidarity claims, arguing that comparative
fault applies instead. Third, the remaining Motions to Dismiss (Docs. 469, 472,
and 519) seek to dismiss claims for contribution and/or indemnity, arguing that
the doctrine of comparative fault necessarily precludes such claims. All of the
Motions raise a common legal question: whether comparative fault is available
as a defense to a breach of contract claim. The Court will address this question
first. The Court will then discuss each Motion individually in light of the Court's
conclusion. Finally, the Court will briefly address the impact of the Court's
ruling on this litigation.
I. Comparative Fault and Breach of Contract
In 1996, the Louisiana Legislature adopted significant reforms to
Louisiana tort law.17

One of the more significant reforms was to adopt

comparative fault as the method of damage allocation in tort actions. The
Principal Contractors and the subcontractors (collectively "Contractors") now
contend that this particular reform affected all causes of action in Louisiana. As
adopted in 1996, Civil Code article 2323 reads:
A. In any action for damages where a person suffers injury, death,
or loss, the degree or percentage of fault of all persons causing or
contributing to the injury, death, or loss shall be determined,
regardless of whether the person is a party to the action or a
nonparty, and regardless of the person's insolvency, ability to pay,
immunity by statute, including but not limited to the provisions of
R.S. 23:1032, or that the other person's identity is not known or
reasonably ascertainable. If a person suffers injury, death, or loss as
17

See generally David W. Robertson, Love and Fury: Recent Radical Revisions to the
Law of Comparative Fault, 59 LA. L. REV. 175 (1998).

6

the result partly of his own negligence and partly as a result of the
fault of another person or persons, the amount of damages
recoverable shall be reduced in proportion to the degree or
percentage of negligence attributable to the person suffering the
injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for
recovery of damages for injury, death, or loss asserted under any
law or legal doctrine or theory of liability, regardless of the basis of
liability.
C. Notwithstanding the provisions of Paragraphs A and B, if a
person suffers injury, death, or loss as a result partly of his own
negligence and partly as a result of the fault of an intentional
tortfeasor, his claim for recovery of damages shall not be reduced.
The Contractors' argument relies primarily on part B of article 2323,
which provides that comparative fault "shall apply to any claim for recovery of
damages for injury, death, or loss asserted under any law or legal doctrine or
theory of liability, regardless of the basis of liability." The Contractors argue
that this broad language means that comparative fault principles now apply to
all claims governed by Louisiana law, including cases for breach of contract.
The Parish argues that the Contractors' proposed reading of article 2323
is inconsistent with Louisiana law. Specifically, the Parish contends that
comparative fault is a tort doctrine that is incompatible with other causes of
action. Unfortunately, Louisiana's state and federal courts are split on this
question.
The Contractors rely on Petroleum Rental Tools, Inc. v. Hal Oil & Gas
Company for support.18 Petroleum Rental involved a dispute between four
18

701 So. 2d 213 (La. App. 1 Cir. 1997).

7

parties. Hal Oil, the owner of an oil well, retained Ron Bridges and Associates
to manage the drilling operations for the well.19 During the course of drilling
operations, Bridges, on behalf of Hal Oil, purchased some equipment from
Tadlock Pipe and Equipment and rented different equipment from Petroleum
Rental Tools.20 During the course of well operations, the equipment purchased
from Tadlock failed.21 That failure was followed in short order by the failure of
the equipment leased from Petroleum Rental Tools.22 The two failures combined
to render the well inoperable and litigation ensued.23 In the suit that followed,
Hal Oil sued Petroleum Rental in redhibition and Ron Bridges in negligence.24
Hal Oil did not sue Tadlock. The trial court held Petroleum Rental liable in
redhibition and Bridges liable in negligence and assessed damages against them
in solido.25 On appeal, the First Circuit largely affirmed.

The Louisiana

Supreme Court, however, reversed, and remanded the case to the First Circuit
with instructions to assess a percentage of fault to Tadlock, "a non-party to the
tort suit."26 On remand, the First Circuit held that fault should be apportioned
among all three parties responsible for the damages (Petroleum Rental, Tadlock,

19

Id. at 214–15.

20

Id. at 215.

21

Id.

22

Id.

23

Id. at 215–16.

24

Id. at 216.

25

Id.

26

Petroleum Rental Tools, Inc. v. Hal Oil & Gas Co., 683 So. 2d 253, 254 (La. 1996).

8

and Bridges).27 The Court concluded that Tadlock's liability in redhibition was
"fault" for purposes of article 2323 and assigned fault to all three parties.28 The
opinion assumed, without analysis, that article 2323 applied to redhibition
claims.
The Parish, in turn, relies on the Louisiana Fourth Circuit's opinion in
Touro Infirmary v. Sizeler Architects.29

Touro, which shares some factual

similarity with this case, involved the improper construction of a nursing home.30
After the nursing home was completed, Touro (the owner of the home) noticed
that the building leaked during rain storms.31 As a result, Touro sued the
architect on the project.32

Over the course of discovery, however, Touro

expanded the scope of the litigation, adding multiple additional claims and
parties.33 One of those parties, the manufacturer of certain wall covering,
asserted the affirmative defense of comparative fault.34 Touro moved the trial
court to dismiss the defense.35 The court granted Touro's motion, and the
manufacturer appealed.36 On appeal, the Fourth Circuit recognized that the
primary question was whether the 1996 amendments to article 2323 expanded
27

Petroleum Rental Tools, Inc., 701 So. 2d at 217.

28

Id. at 217–18.

29

900 So. 2d 200 (La. App. 4 Cir. 2005).

30

Id. at 201.

31

Id.

32

Id.

33

Id. at 201–02.

34

Id. at 202.

35

Id.

36

Id.

9

comparative fault beyond tort claims.37 The court held that they did not.38 The
Fourth Circuit explained that both the nature of comparative fault, and its
placement in the section of the Civil Code dealing with "Offenses and
Quasi-Offenses" limited its applicability to tort claims.39 Specifically, the Court
held that "[a] redhibition suit is a contractual action. Comparative negligence
may only be asserted in a tort action."40 The Louisiana Fifth Circuit has also
held that comparative fault may only be asserted in a tort action.41 The Fifth
Circuit, like the court in Touro, relied on cases decided before the 1996
amendments to come to this conclusion.
The Louisiana Supreme Court was presented with an opportunity to
resolve this issue in Aucoin v. Southern Quality Homes, LLC.42 Instead of
resolving the dispute, however, the Court merely recognized that the Louisiana
circuit courts were split.43
Since Aucoin was decided in 2008, three federal district courts in
Louisiana have addressed the issue and come to differing conclusions. Three
days after Aucoin was decided, another section of this Court held, without
substantial analysis, that comparative fault applied to contract claims.44 In
37

Id. at 203–04.

38

Id. at 205.

39

Id. at 204.

40

Id. at 205.

41

Merlin v. Fuselier Const., Inc., 789 So. 2d 710, 717 (La. App. 5 Cir. 2001).

42

984 So. 2d 685 (La. 2008).

43

Id. at 693 n.12.

44

Chevron U.S.A. Inc. v. Aker Mar., Inc., No. 03-2027, 2008 WL 594648, at *1 (E.D. La.
Feb. 29, 2008) rev'd on other grounds 604 F.3d 888 (5th Cir. 2010).

10

turn, the Western District held that comparative fault was only applicable to tort
claims but did not discuss the issue at length.45
The first federal decision to provide a reasoned analysis of this issue is the
Western District's decision in Hollybrook Cottonseed Processing, LLC v. Carver,
Inc.46 In Hollybrook, the court concluded that comparative fault did not apply
to a redhibition claim for two reasons. First, it held that the specific fault
allocation provisions of the redhibition articles controlled over the general tort
articles.47 Second, it found persuasive the fact that the comparative fault
articles are found in the section of the Civil Code dedicated to offenses and quasi
offenses as opposed to the section dedicated to contracts or obligations in
general.48
The Court could not locate any additional decisions addressing this issue
after the 1996 amendments.

Based on these cases, the Parish and the

Contractors insist that Louisiana law clearly prohibits or requires, respectively,
the application of comparative fault to contract claims. In the Court's view, the
law is far from clear.
Nonetheless, this Court is bound under Erie to apply the same law as
would be applied by the Louisiana Supreme Court.49 "If [as here] the Louisiana
45

Dual Construction, Inc. v. City of Alexandria, No. 10-1039, 2011 WL 759604, at *3
(W.D. La. Feb. 24, 2011).
46

No. 09-750, 2011 WL 2214936, at *2 (W.D. La. June 6, 2011).

47

Id. at *3.

48

Id. at *2.

49

Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000) (citing Erie
R. Co. v. Tompkins, 304 U.S. 64 (1938)).

11

Supreme Court has not ruled on this issue, then this Court must make an 'Erie
guess' and determine as best it can what the Louisiana Supreme Court would
decide."50 "In making an Erie guess, [federal courts] defer to intermediate state
appellate court decisions, unless convinced by other persuasive data that the
highest court of the state would decide otherwise."51 The Court's task is to
"predict state law, not create or modify it."52 The Louisiana Supreme Court's
landmark opinion on comparative fault provides some insight.
In Dumas v. State ex rel. Department of Culture, Recreation & Tourism,
the Louisiana Supreme Court was asked to decide whether comparative fault
principles applied in the context of a tort case.53 While the facts of Dumas are
not applicable to this case, the Supreme Court's discussion of the 1996 revision
is helpful.
The Supreme Court's description of the 1996 amendment to article 2323
is rife with references to tort law. In fact, the Court describes the amendment's
purpose as "to abolish solidary liability among non-intentional tortfeasors and
to place Louisiana in a pure comparative fault system."54 The Court further
characterizes the amendments as "effect[ing] a total shift in tort policy."55 The
opinion consistently references the amendments as revising Louisiana's tort law
but makes no reference to the amendments altering other theories of recovery.
50

Id. at 627.

51

Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010).

52

Id.

53

828 So. 2d 530 (La. 2002).

54

Id. at 535 (emphasis added).

55

Id. at 538 (emphasis added).

12

Dumas's consistent reference to the 1996 amendments as changing tort law is
persuasive. So too is the fact that, as far as the Court can tell, no Louisiana
court has applied comparative fault principles to a breach of contract claim.
The Court, finding that Louisiana case law not support the application of
comparative fault to contract claims, finds greater support in the very structure
of the Louisiana Civil Code.

Unlike statutes enacted in common law

jurisdictions, the articles of a civil code are carefully organized according to their
subject matter.56 The Louisiana Supreme Court has long held that civil code
articles should be construed with regard to their subject matter.57

It is,

therefore, helpful to consider article 2323's placement within the Civil Code.
Article 2323 is found in Title V of Book III of the Civil Code, dealing with
obligations that arise without agreement. More specifically, it is located in
Chapter 3, which contains Louisiana's tort law. Contract law, however, is found
in Title IV of Book III. This, of course, suggests that article 2323 was intended
to apply to tort law only.
A closer examination of the Code further supports this conclusion. Title
IV of Book III contains specific rules governing the calculation of damages in
contract cases.58 These provisions, among other things, allow a court to reduce
the damages owed to a party damaged by another's breach of contract where the
56

See generally, Robert Anthony Pascal, Of the Civil Code and Us, 59 LA. L. REV. 301
(1998); Honorable James L. Dennis, Capitant Lecture, 63 LA. L. REV. 1003 (2003); Katie Drell
Grissel, The Legal Fiction of "Clear Text" in Willis-Knighton v. Caddo-Shreveport Sales and
Use Tax Commission, 67 LA. L. REV. 523, 525–40 (2007).
57

Compare Citizens & Taxpayers of De Soto Parish v. Williams, 21 So. 647, 654 (La.
1897) with Pociask v. Moseley, 122 So. 3d 533, 540 (La. 2013).
58

La. Civ. Code arts. 1994–2004.

13

obligee's own negligence has contributed to his damages.59 The fact that the
contracts section of the Code contains its own set of rules regarding damages
also counsels against importing a tort article into contract cases.
It is a provision found in Title III of Book III, however, that most strongly
counsels against the application of comparative fault in contract cases. Article
1804 provides:
Among solidary obligors, each is liable for his virile portion. If the
obligation arises from a contract or quasi-contract, virile portions
are equal in the absence of agreement or judgment to the contrary.
If the obligation arises from an offense or quasi-offense, a virile
portion is proportionate to the fault of each obligor.
This article, unsurprisingly found in the general obligations provisions,
specifically provides that damages are allocated in one manner among
co-obligors to a contract and in a different manner among co-obligors to an
offense or quasi-offense. Indeed, the comments to the article explicitly state that
the allocation of damages "depend[s] on the source of the obligation."60 In light
of the distinction made in article 1804, it seems clear that the Legislature
intended to create separate legal regimes governing the allocation of damages
in contract and tort actions. Because the Louisiana Legislature has not altered
either article 1804 or the damages articles in the section of the code dedicated
to conventional obligations, the Court concludes that the Louisiana Supreme
Court would likely hold that article 2323 applies to tort claims only.
59

La. Civ. Code art. 2003 ("If the obligee's negligence contributes to the obligor's failure
to perform, the damages are reduced in proportion to that negligence.").
60

La. Civ. Code art. 1804 cmt. (b).

14

In light of the conclusion that comparative fault is not available as a
defense to a breach of contract claim, the Court renders judgment in the
following manner.
II. The Pending Motions
A. Southeast's Motion to Dismiss – Doc. 469
In this Motion, Southeast Engineers and RLI Insurance Company seek
dismissal of contribution and indemnity claims asserted against them by Catco
and Hanover. Movants reason that, because comparative fault applies to breach
of contract claims, Catco and Hanover can only be held responsible for their own
respective fault. The Court has, however, rejected the basic principle underlying
Movants' argument. The Parish has alleged that all of the Contractors are
solidarily liable to it for its damages. Assuming this allegation to be true (as the
Court must in the context of a motion to dismiss), Catco and Hanover are
entitled to seek contribution from Southeast to the extent that Catco and
Hanover are ultimately determined to be solidarily liable with Southeast.
Accordingly, this Motion is denied.
B. Catco's Motion to Dismiss – Doc. 471
In this Motion, Catco moves to dismiss the Parish's claim that Catco is
solidarily liable with the other parties sued by the Parish. Catco's Motion is
based on its argument that, with regard to breach of contract actions, solidarity
has been abolished in favor of comparative fault. The Court has rejected this
argument, and the Motion is therefore denied.
C. Sizeler's Motion to Dismiss – Doc. 472
15

In this Motion, Sizeler, Thompson, Brown Architects seeks dismissal of
contribution and indemnity claims asserted against it by Catco and Hanover.
Movant's arguments are essentially identical to those made by Southeast and
RLI. Accordingly, this Motion is denied for the same reasons as Doc. 469.
D. Mayeux's Motion to Dismiss – Doc. 479
In this Motion, Mayeux's Heating & Air Conditioning, Inc. moves to
dismiss the Parish's claim that Mayeux's is solidarily liable with the other
parties sued by the Parish. Mayeux's Motion is based on its argument that, with
regard to breach of contract actions, solidarity has been abolished in favor of
comparative fault. The Court has rejected this argument, and the Motion is
therefore denied.
E. Sizeler's Motion to Dismiss – Doc. 491
In this Motion, Sizeler, Thompson, Brown Architects moves to dismiss the
Parish's claim that Sizeler is solidarily liable with the other parties sued by the
Parish. Sizeler's Motion is based on its argument that, with regard to breach of
contract actions, solidarity has been abolished in favor of comparative fault. The
Court has rejected this argument, and the Motion is therefore denied.
F. The Parish's Motion for Partial Summary Judgment – Doc. 517
In this Motion, the Parish moves the Court to dismiss all assertions of the
defense of comparative fault by parties to breach of contract claims. In response,
some parties argue that comparative fault is available and others assert
arguments that address the merits of the Parish's claims against them. The
Court expressly declines to entertain arguments regarding the merits of the
16

Parish's breach of contract claims at this stage. The Court does hold that
comparative fault is not available as a defense to a breach of contract claim.
Therefore, the Parish's Motion is granted. This does not, however, mean that
comparative fault is not an issue in this case. As the Court explains in more
detail below, comparative fault is, of course, available as a defense to the
negligence claims asserted by the Parish.
G. All South's Motion for Partial Summary Judgment – Doc. 519
In this Motion, All South seeks dismissal of contribution claims asserted
against it by Catco and Hanover. All South's arguments are essentially identical
to those made by Southeast and RLI. Accordingly, this Motion is denied for the
same reasons as Doc. 469.
III. The Impact of the Court's Ruling on this Litigation
The Court pauses to clarify its view regarding the effect that this ruling
has on this litigation. At oral argument, it appeared to the Court that some
parties were under the impression that, if comparative fault is not available as
a defense to the Parish's breach of contract claims, all parties are necessarily
solidarily liable. That is not the law. The Court holds today that comparative
fault is not available as a defense to a breach of contract claim. The Court does
not, however, hold that all the parties in this case are solidarily liable with each
other. To the contrary, an obligation is generally solidary when each obligor is
liable for the whole performance.61 Furthermore, solidarity is never presumed.62

61

La. Civ. Code art. 1794.

62

La. Civ. Code art. 1796.

17

Rather, "[a] solidary obligation arises from a clear expression of the parties'
intent or from the law."63 Thus, before the Court can impose solidary liability on
the parties to this action, the Parish must demonstrate that the parties are, in
fact, solidariliy liable.
Finally, the Court also notes that the Parish has asserted negligence
claims against most, if not all, of the parties to this case. As is clear from the
Court's discussion in this Order, comparative fault is a defense to a negligence
claim. Therefore, the parties that have pled the defense are free to assert it with
regard to any negligence claims asserted against them.
CONCLUSION
For the foregoing reasons, the Motions to Dismiss and All South's Motion
for Partial Summary Judgment (Doc. 519) are DENIED, and the Parish's Motion
for Partial Summary Judgment (Doc. 517) is GRANTED. The Court holds that
comparative fault is not available as a defense to breach of contract claims under
Louisiana law.
New Orleans, Louisiana, this 9th day of July, 2015.

____________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
63

Id.

18