AFC, Inc. et al v. Mathes Brierre Architects

Filing 65

ORDER AND REASONS denying 64 Motion for Reconsideration. Signed by Judge Lance M Africk on 7/26/2017. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AFC, INC. ET AL.

CIVIL ACTION

VERSUS

No. 16-16560

MATHES BRIERRE ARCHITECTS

SECTION I

ORDER AND REASONS
AFC, Inc. asks this Court to reconsider its prior determination that AFC is not
entitled to their defense costs and attorney’s fees in the underlying arbitration. See
R. Doc. No. 64 (motion); R. Doc. No. 60 (Court’s order). However, AFC provides the
Court with no new authorities to change this Court’s prior determination.
Again, though AFC continues to focus on federal maritime cases, those cases
are only so helpful because Louisiana indemnity law does not invariably follow
federal indemnity law. Cf. Kinsinger v. Taco Tico, Inc., 861 So. 2d 669, 673 (La. Ct.
App. 5th Cir. 2003) (“Although the Federal Fifth Circuit . . . imposed an obligation for
attorney fees, it acknowledged in its opinion that the court was not basing its decision
to allow attorney's fees to the indemnitee on any binding authority in its own circuit
or in Louisiana jurisprudence.”).

And AFC still does not explain why—when

Louisiana has a “general rule that absent some specific language in the
indemnification contract, attorney fees and defense costs are not owed,” id.—that rule
would be any different when enforcing the implied contract of indemnity in a legal
indemnity action, see, e.g., Eaves v. Spirit Homes, Inc., 931 So. 2d 1173, 1179-80 (La.
Ct. App. 3d Cir. 2006) (“[W]here there was no written contract for indemnity or for

attorney fees . . . Dr. Lord is entitled to indemnity from Arrow under a theory of
implied indemnity which covers only the damages and attorney fees of the original
plaintiffs . . . that Dr. Lord was obligated to pay in the main demand. Accordingly,
Arrow has reimbursed Dr. Lord . . and that is all that Dr. Lord is entitled to under
the theory of implied indemnity. As for Dr. Lord's claim to attorney fees as special
damages . . . there clearly is no contract for attorney fees between Dr. Lord and
Arrow, and Dr. Lord cites no statute providing for his reimbursement of his own
attorney fees.”). After all, it makes little sense for the Court to be giving broader
recoveries in implied contract actions—i.e., legal indemnity cases—than it gives when
applying the default rule in contract indemnity cases.
Therefore, though Eaves’s rule is not necessarily the one the Court would pick
if it were writing on a blank slate, this Court’s job in an Erie case is not to pick what
it thinks is the best rule from federal maritime cases and then entirely ignore state
court decisions in service of obtaining the Court’s preferred doctrine. Given current
Louisiana intermediate appellate case law—which is not strictly binding, but
nonetheless usually informative as to the wise Erie guess—this Court continues to
conclude that the best Erie guess here is that some of the damages that AFC seeks
are not recoverable under Louisiana law.
Accordingly,
IT IS ORDERED that the motion for reconsideration is DENIED.

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New Orleans, Louisiana, July 26, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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