Patriot Contracting, LLC v. Star Insurance Company et al
ORDER AND REASONS denying 63 Motion for Reconsideration. Signed by Judge Jane Triche Milazzo on 6/21/2017. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PATRIOT CONTRACTING, LLC
STAR INSURANCE COMPANY, ET AL
ORDER AND REASONS
Reconsideration of Prior Denial of its Motion for Partial Summary Judgment
(Doc. 63). For the following reasons, this Motion is DENIED.
This diversity action arises out a construction project on a “New Group
Camp” in Bayou Segnette State Park in Westwego (the “Project”). The State
of Louisiana (the “State”) entered into a contract with Troy Frick as general
contractor for the construction of the Project (the “Original Contract”).
Defendant Star Insurance Company (“Star”), as surety, issued a statutory
Performance and Payment Bond in the amount of $2,546,000 for the Project.
The State entered into a separate contract with Defendant The Architectural
Studio/James Dodds, AIA Corporation (‘TAS”) for planning and design services
with regard to the Project, whereby TAS was to provide construction
documents (the “Contract Documents”).
When Frick failed to satisfactorily complete work on the Project, the
State made demand on Defendant Star to remedy and complete the work.
Accordingly, Star executed a Surety Takeover Agreement with the State (the
Star then executed a completion contract with
Plaintiff Patriot, where Patriot was to complete the work outlined in the
Original Contract (the “Completion Contract”). Patriot was to rely on the
Contract Documents created by TAS in completing the work; however, it avers
that it became aware of design errors and omissions in these documents.
Patriot avers that these errors resulted in significant cost overruns to
Patriot and delays to its work. It further alleges that TAS was slow to respond
to Patriot’s requests for information regarding the details of the Contract
Documents, and that TAS’s failures caused it to incur increased expenses. It
further avers that Star has not paid Patriot under the agreement, having
rejected Patriot’s work on the Project. Patriot further contends that Star and
TAS continued to demand “unreasonable punch list work” and that they are
withholding money for already completed work.
abandoned the Project on November 9, 2015.
The State terminated the
Takeover Agreement on March 14, 2016 and has rebid the Project.
Star previously filed a Motion for Summary Judgment arguing that it
had remitted to Patriot all appropriate payments under the Completion
Contract. Star sought summary judgment in its favor on Patriot’s claims for
further payment. The Court denied that motion, finding that genuine issues
of material fact persisted as to the extent to which the State had accepted
Patriot’s work. In the instant Motion, Star seeks review of this ruling.
Motions to reconsider interlocutory orders are governed by Rule 54(b),
which allows a district court to “revise at any time” “any order or other
decision . . . [that] does not end the action.”1 “[T]he trial court is free to
reconsider and reverse its decision for any reason it deems sufficient, even in
the absence of new evidence or an intervening change in or clarification of the
substantive law.”2 “Rule 54(b)’s approach to the interlocutory presentation of
new arguments as the case evolves can be more flexible, reflecting the inherent
power of the rendering district court to afford such relief from interlocutory
judgments as justice requires.”3
LAW AND ANALYSIS
In this Motion, Defendant Star seeks reconsideration of this Court’s
earlier denial of its Motion for Summary Judgment. In ruling on the original
motion, the Court found that Star’s payment obligations to Patriot were subject
to a suspensive condition—the State’s acceptance of Patriot’s work. The Court
found that genuine issue of material fact as to the degree of the State’s
acceptance precluded summary judgment. Specifically, the Court found that
the rebid documents might indicate acceptance of portions of the work done by
Patriot, as it contends that it has not received payment for portions of its work
Fed. R. Civ. P. 54(b).
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)
(citing FED. R. CIV. P. 54(b)), abrogated on other grounds, Little v. Liquid Air Corp., 37 F.3d
1069, 1075 n 14 (5th Cir. 1994).
3 Austin v. Kroger Texas, L.P., No. 16-10502, 2017 WL 1379453, at *9 (5th Cir. Apr.
14, 2017) (citing Cobell v. Jewell, 802 F.3d 12, 25–26 (D.C. Cir. 2015)).
that were not rebid. Patriot contends that any work not included in the rebid
documents was necessarily accepted by the State.
Star now wishes to revisit this issue, essentially arguing that (1) the
clear and unambiguous terms of the contract indicate that Star has no
obligation to pay Patriot and (2) no genuine issue of material fact remains
because Patriot’s expert did not include in his report a listing of work not
included in the rebid documents and accepted by the State. The Court will
address these argument in turn.
I. Arguments Regarding the Language of the Contract are Not
Appropriately Considered in a Motion to Reconsider
Much of Star’s present Motion is devoted to arguments concerning its
obligations to pay Patriot under the terms of the Completion Contract. These
arguments rely on no new evidence. Indeed, many of these same arguments
were considered and rejected by the Court in ruling on Star’s original motion.4
In any event, Star points the Court to no new evidence and no intervening
change in the law in support of their motion for reconsideration on this issue.
Accordingly, its Motion is denied in this regard.
II. Genuine Issues of Fact Remain Despite Patriot’s Expert Report
Star next contends that any issues of material fact that existed at the
time of the Court’s original ruling have been obviated because Patriot’s expert
report did not include a list of work that it contends was accepted by the State
by virtue of its omission from the rebid documents. The only new evidence
submitted along with the Motion is a copy of this expert report.
responds in opposition, arguing that discovery is ongoing and that it does not
need expert testimony to demonstrate that elements of its work do not appear
See Doc. 48-1.
in the rebid documents. This Court agrees. Discovery does not end until
August 18, 2017. The Project may very well be completed in that time, giving
the parties ample opportunity to resolve disputed factual issues. Additionally,
Star points this Court to no authority indicating that Patriot is unable to carry
is burden of proof absent expert testimony. Despite Patriot’s failure to include
a list of purportedly accepted work in its expert report, genuine issues of
material fact remain with regard to its entitlement to payment, and summary
judgment is not warranted at this time.
For the foregoing reasons, Defendant Star Insurance Company’s Motion
for Reconsideration (Doc. 63) is DENIED.
New Orleans, Louisiana this 21st day of June, 2017.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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