Summary
The Louisiana Fourth Circuit Court of Appeal reviews a construction-delay dispute between Couvillion Group, LLC and Plaquemines Parish Government concerning reconstruction of the Port Eads facility. The court amended the district court’s judgment to award $82,320 for Hurricane Isaac emergency mobilization and demobilization and to limit legal interest to the period from judicial demand through substantial completion, while affirming the judgment in all other respects. The court also addressed expert testimony, subcontractor pass-through claims, home-office-overhead damages, additional crane compensation, attorney’s fees, and liquidated damages.
Topics
Practice areas
Questions Presented
- Whether the district court erred by admitting and relying on Couvillion's scheduling expert's testimony and methodology under Daubert.
- Whether Couvillion could recover pass-through delay damages attributable to its subcontractors despite the subcontractors' alleged prescription.
- Whether the district court erred in awarding delay damages for home-office overhead under the Eichleay methodology.
- Whether the Parish was entitled to liquidated damages for alleged contractor-caused delay.
- Whether Couvillion was entitled to additional compensation for use and remobilization of a larger crane barge.
- Whether the district court properly awarded attorney's fees under Louisiana Revised Statutes 38:2191.
- When legal interest on Couvillion's contractual delay damages began to accrue.
Holdings
- The Parish waived its challenge to the expert's qualifications and admissibility by failing to make a contemporaneous objection after the district court denied its motion in limine and accepted the expert.
- The district court did not abuse its discretion or commit manifest error by admitting and relying on the scheduling expert's testimony and retrospective critical-path delay analysis.
- The subcontractors' pass-through delay-damage claims were not prescribed because Couvillion's suit interrupted prescription as to claims arising from the same cause of action.
- The district court did not err in awarding home-office-overhead delay damages based on the Eichleay methodology.
- The Parish was not entitled to liquidated damages because its claim depended on an analysis of project delay that the district court reasonably rejected in favor of Couvillion's scheduling analysis.
- The district court did not err in awarding compensation for use of the larger crane and three additional mobilizations because the record supported the finding that the costs resulted from the partial stop-work order and were reasonable rather than duplicative.
- The district court's award was amended from $82,300.00 to $82,320.00 because the record showed that the agreed reimbursement amount was $82,320.00.
- Couvillion was entitled to attorney's fees because the delay damages and additional expenses were obligations arising under the public contract and the version of Louisiana Revised Statutes 38:2191 applicable when the claim arose authorized attorney's fees.
- The 2018 amendment adding a specific statutory interest process did not apply retroactively because it created new rights and duties and the Legislature did not express an intent for retroactive application.
- Legal interest accrued from the date of substantial completion, rather than from the date of judicial demand.
Key quotations
“Only a question of the validity of the methodology employed brings Daubert into play.” (p. 8)
“The Eichleay formula does not ‘require that the contractor’s work force be idle.’” (p. 14)
“Any provision contained in a public contract which purports to waive, release, or extinguish the rights of a contractor to recover cost of damages, or obtain equitable adjustment, for delays in performing such contract, if such delay is caused in whole, or in part, by acts or omissions within the control of the contracting public entity or persons acting on behalf thereof, is against public policy and is void or unenforceable.” (p. 21)
Factual background
Plaquemines Parish Government awarded Couvillion Group, LLC a public construction contract to reconstruct the Port Eads facility after Hurricane Katrina. The project was delayed in part by a partial stop-work order concerning the fuel-tank platform and other project-related events, and substantial completion occurred on November 1, 2013, after the contract completion date had been extended. Couvillion sought delay damages and additional expenses, including costs associated with a larger crane barge, remobilizations, subcontractor claims, and emergency mobilization and demobilization for Hurricane Isaac.
Procedural history
Couvillion initially filed a petition for mandamus seeking payment under Louisiana Revised Statutes 38:2191 and later amended the action into an ordinary proceeding. The Parish filed a reconventional demand seeking liquidated damages for alleged contractor-caused delay. After a two-day bench trial, the district court awarded Couvillion $2,782,724.31 plus costs, attorney's fees, and interest from judicial demand, and dismissed the reconventional demand with prejudice. The Fourth Circuit amended the award for Hurricane Isaac mobilization and demobilization and the commencement date for interest, affirming the judgment in all other respects.