Fisk Electric Company v. Woodrow Wilson Construction Company, Inc. et al

Filing 129

ORDER ADOPTING REPORT AND RECOMMENDATIONS 125 . IT IS ORDERED that Defendant Woodrow Wilson Construction Company, Inc.'s application for an award of attorney's fees and costs (Rec. Doc. 117) is DENIED, as stated within document. Signed by Chief Judge Kurt D. Engelhardt on 8/3/2016.(cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FISK ELECTRIC COMPANY

CIVIL ACTION

VERSUS

NO. 13-86

WOODROW WILSON CONSTRUCTION COMPANY, INC.
and HANOVER INSURANCE COMPANY

SECTION "N" (1)

ORDER AND REASONS
The Court, having considered the petition, the record, the applicable law, the Report
and Recommendation of the United States Magistrate Judge, and the objections to the Magistrate
Judge's Report and Recommendation filed by the defendant, on May 12, 2016 (Rec. Doc. No. 126),
hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts
it as its opinion in this matter. Accordingly, IT IS ORDERED that Defendant Woodrow Wilson
Construction Company, Inc.'s application for an award of attorney's fees and costs (Rec. Doc. 117)
is DENIED.
In making this determination, the Court is guided by the reasoning set forth in
Contractors Supply & EQ-New Orleans v. J. Caldarera & Co., 734 So.2d 755, 761 (La. App. 5 Cir.
1999), when considered together with the Court's January 27, 2014 Order and Reasons (Rec. Doc.
61),which granted partial summary judgment in Plaintiff's favor relative to its claimed subcontract
balance in the amount of $466,832.80. Even if its January 13, 2014 check to Plaintiff entitled
Defendant to a $459,832.80 credit against the $466,832.80 subcontract balance, the remaining

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difference between the two amounts favors Plaintiff. Accordingly, Plaintiff did not assert a claim
"without merit" for purposes of the attorney's fees and costs authorized by Louisiana Revised Statute
9:2784(C).1 As the Court of Appeals noted in its March 8, 2015 opinion, the Louisiana Supreme
Court "'has emphasized that statutes providing for punitive penalties are rare, and as such, when the
statute does authorize the imposition of a penalty, it is to be strictly construed.'" See Fisk Electric
Co. v. Woodrow Wilson Const. Co., Inc., 816 F.3d 311, 313 (5th Cir. 2015) (quoting Int'l Harvester
Credit Corp. v. Seale, 518 So.2d 1039, 1041 (La.1988)).
New Orleans, Louisiana, this 3rd day of August 2016.

_______________________________________
KURT D. ENGELHARDT
United States District Judge

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In Contractors Supply & EQ-New Orleans, the Louisiana appellate court refused to
award either party the attorney's fees and costs authorized by LSA-R.S. 9:2784(C). In denying the
defendant's request, the court explained:
The statute states that "any claim which the court finds to be without
merit shall subject the claimant to all reasonable costs and attorney
fees for the defense against such claim." However, the plaintiff's
[contract] claim was not without merit, as it was worth more than
what defendant offered. Therefore, the claim was not completely
without merit and the trial court was correct in refusing to award
penalties and attorney fees to the defendant. We affirm the decision
of the trial court on this assignment of error.
See Contractors Supply & EQ-New Orleans, 734 So.2d at 761.
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