Ebinger v. Venus Constr. Corp.

Summary

The Louisiana Supreme Court held that the five-year peremptive period in the 2003 version of La. R.S. 9:2772 applied to a construction company's third-party indemnity demand against a subcontractor. The court concluded that the indemnity right was not vested when the amendment became effective because it depended on the underlying litigation and a judgment against the construction company. The court reversed the court of appeal and reinstated the trial court's judgment finding the third-party demand perempted.

Holdings

1. The peremptive period under La. R.S. 9:2772 began when the owners took possession of the residence or recorded acceptance of the work; because no recorded acceptance appeared in the record, the court assumed that the period began with issuance of the certificate of occupancy on April 22, 1997.
2. The five-year peremptive period enacted by the 2003 amendment to La. R.S. 9:2772 applies to Venus's third-party demand.
3. Applying the 2003 amendment to Venus's third-party demand did not impermissibly impair a vested right because Venus had no vested indemnification right when the amendment became effective.
4. Venus's indemnification cause of action did not accrue, and its indemnification right did not vest, merely when the homeowners discovered construction damage or filed suit; the right remained contingent until Venus was cast in judgment.

Questions Presented

1. When did the peremptive period under La. R.S. 9:2772 begin for Venus's indemnification claim?
2. Which version of La. R.S. 9:2772 governed Venus's third-party demand—the ten-year period in the 1997 version or the five-year period enacted by the 2003 amendment?
3. Was Venus's indemnification right vested before the 2003 amendment became effective?
4. Was Venus's third-party demand against Post-Tension Slabs perempted?

Disposition

reversed