St. Charles Parish School Board v. GAF Corp.

This action by the owner of a school building, seeking to recover damages caused by alleged defects in the construction of the building, was filed more than three years after the acceptance of the construction. We granted certiorari to review the trial court’s overruling of an exception of prescription filed by the general contractor based on La.R.S. SS^lSi). We now conclude that the three-year limitation established by La.R.S. 38:2189 for the filing of an action against a contractor in connection with the construction of a public building is a prescriptive period which is subject to suspension during the period in which the cause of action for construction defects is not known or reasonably knowable to the state agency or board which owns the building.

In September, 1973, plaintiff School Board entered into a contract for the construction of a school building with defendant general contractor. On August 6, 1975, the Board recorded its acceptance of the building.

Sometime after the Board began to use the building, leaks developed in the roof. The Board initially attributed the leaks to normal problems with a flat roof. When leaks continued to occur, however, the Board hired a consultant in 1984 to investigate the cause of the persistent problem. Upon being advised that the entire roof needed to be replaced on account of design and workmanship defects, the Board filed this suit on November 26, 1984 against the general contractor, as well as the architects, certain subcontractors and the manufacturers of certain building materials.

The general contractor filed an exception of prescription on the basis of La.R.S. 38:2189, which provides:

“Any action against the contractor on the contract or on the bond or against the contractor and/or surety on the bond furnished by the contractor, all in connection with the construction, alteration or repair of any public works let by the state or any of its agencies, boards or sub-divisions shall prescribe three years from the registry or acceptance of such work or notice of default of the contractor unless otherwise limited in this said chapter.”

The trial court overruled the exception. On application for supervisory writs under La.C.C.P. Art. 2201, the intermediate court declined to review the interlocutory judgment, reasoning that La.R.S. 38:2189 is a prescriptive statute which applies only to apparent defects, as contrasted with La. C.C. Art. 2762 and La.R.S. 9:2772, which are peremptive statutes generally affording the owner of a building ten years to discover and sue for hidden construction defects. We then granted certiorari. 481 So.2d 1341 (La.1986).

The threshold inquiry is the effect of La.R.S. 38:2189, which was enacted in 1962, upon the preexisting La.C.C. Art. 2762.

In Orleans Parish School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1971), this court concluded that La.C.C. Art. 2762 establishes a substantive right in favor of the owner of a building making the contractor and the architect responsible if the building falls to ruin, in whole or in part, within ten years on account of badness in workmanship. Because the construction of the building was completed before the 1962 enactment of La.R.S. 38:2189, this court held that the subsequently enacted statute, even if viewed as a statute of peremption, could not affect or impair the owner’s vested substantive right against the contractor when the building fell to ruin on account of badness of workmanship within ten years of completion.

This court in Pittman characterized the ten-year period of La.C.C. Art. 2762, which was taken from Code Napoleon Article 1792 (1804), as an “implied in law warranty period”. As stated in 2 M. Planiol, Traité Élémentaire de Droit Civil § 1909 (Louisiana State Law Institute trans. 1959), the law declares building contractors responsible for their work during ten years. Pla-niol particularly noted that vices of construction do not appear at once, but after the building is being used. Because La. R.S. 38:2189 was not applicable to the construction in that case, it was not necessary to decide whether the prescriptive period established in La.R.S. 38:2189 shortened or otherwise had any effect upon the ten-year warranty period of La.C.C. Art. 2762.

In State ex rel Guste v. Simoni, Heck & Associates, 331 So.2d 478 (La.1976), this court discussed, but did not resolve, the question of the effect of La.R.S. 38:2189 when the construction was completed after enactment of that statute. Reasoning that La.R.S. 38:2189 by its terms applies only to the general contractor and its surety on a public construction contract, this court held that the architect’s plea of prescription based on La.R.S. 38:2189 was without merit. Inasmuch as the Simoni decision merely held that an architect is not a contractor within the contemplation of La.R.S. 38:2189, that case does not stand for the proposition that La.R.S. 38:2189 shortened La.C.C. Art. 2762’s period of responsibility of a general contractor for defects in the construction of a public building.

Thus, the issue remains open whether La.R.S. 38:2189 absolutely curtails the right of a public board to hold the contractor responsible for defective workmanship in a public building when the defect manifests itself within less than ten years, but more than three years, after acceptance of the construction. An affirmative answer to this question would require, among other things, according La.R.S. 38:2189 the effect of a peremptive statute.

A person may lose his right to assert a cause of action because of passage of time by either peremption or prescription. Per-emption is a limitation of time fixed by law for the existence of a right, and the effect of peremption is that the right becomes extinguished unless exercised within that period. La.C.C. Art. 3458. Prescription is also a limitation of time fixed by law for the exercise of a right, and the effect of prescription when pleaded by the obligor is that, the obligee’s untimely action is barred. While La.C.C. Art. 3461 provides that per-emption may not be renounced, interrupted or suspended, prescription may be interrupted or suspended. Furthermore, a prescriptive statute is subject to the discovery rule embodied in the doctrine of contra non valentem agere nulla currit praes-criptio, when that doctrine is invoked to suspend the running of prescription during the period in which the cause of action is not known or reasonably knowable to the plaintiff. Corsey v. State of Louisiana, Department of Corrections, 375 So.2d 1319 (La.1979).

It is often difficult to determine whether a period of time fixed by law is peremptive or prescriptive. The determination of whether a statute has a peremptive effect is largely a matter of legislative intent and of construction of the particular statute. Pounds v. Schori, 377 So.2d 1195 (La. 1979); Griffin v. Succession of Branch, 479 So.2d 324 (La.1985), Dennis, J., dissenting, 480 So.2d 313 (La.1986). If the statute does not indicate in plain words that the period is one of peremption, the court must analyze the statute in its entirety, with particular focus on whether the purpose sought to be achieved involves matters of public policy or other compelling reasons for absolutely extinguishing a right which is not promptly exercised. Thus, the question in this case is whether La.R.S. 38:2189 indicates a legislative intent for a peremp-tive effect precluding the applicability of the doctrine of contra non valentem.

This court in Crier v. Whitecloud, 496 So.2d 305 (La.1986), held that the Legislature intended La.R.S. 9:5628 as both a prescriptive and a peremptive statute. That statute generally provides a prescriptive period for claims of medical malpractice of either one year from the date of the act or one year from the date of discovery of the injury, but the statute expressly limits the applicability of the discovery rule by requiring that malpractice claims in all events be filed within three years of the act.

La.R.S. 9:2772 was at issue in Burmaster v. Gravity Drainage District No. 2 of the Parish of St. Charles, 366 So.2d 1381 (La.1978). This court held that the statute, which prohibits bringing an action for injury and death allegedly caused by a construction defect more than ten years after acceptance of the construction, did not offend the plaintiffs constitutional right to due process because the statute merely prevented what might otherwise have been a cause of action from ever arising. The statute in Burmaster was clearly peremp-tive, both in its plain words (see footnote 2) and in its evident legislative intent.

Unlike the statute in the Crier case, La. R.S. 38:2189 does not mention, one way or the other, the applicability of the discovery rule, nor does it preclude the courts from applying the discovery rule in those cases in which it would be applicable under long standing jurisprudence. And unlike the statute in the Burmaster case, La.R.S. 38:2189 does not use the term “peremption” and does not set an outer limit for bringing an action with terms like “in all events” (Crier) or “in no event more than” (Burmaster). La.R.S. 38:2189, by its terms, merely provides a prescriptive period.

In order to achieve a peremptive effect, the Legislature must clearly indicate an intent to preclude the suspension of prescription during the period in which the plaintiff did not reasonably know of the cause of action. There is no indication that the Legislature intended La.R.S. 38:2189 as other than a prescriptive statute which is subject to the jurisprudential doctrine of contra non valentem. Moreover, there is no apparent public policy reason for requiring a state board to file an action based on a construction defect within three years of acceptance, whether or not the defect has manifested itself, when owners of private property have ten years to do so. Finally, any doubt about the applicability of a prescriptive statute should be resolved in favor of maintaining the obligation. United Carbon Co. v. Mississippi River Fuel Corp., 230 La. 709, 89 So.2d 209 (1956).

Construing both La.C.C. Art. 2762 and La.R.S. 38:2189 together, we conclude that the former statute provided the Board a substantive right against the contractor for defects in construction because of badness in workmanship for a period of ten years. When construction defects appeared within this ten-year period, La.R.S. 38:2189 limited the Board to a period of three years for filing suit, reckoning from the time that the defects became known or reasonably knowable to the Board. On the record at this point in the present case, the cause of action for alleged defects in the roof was not known or reasonably knowable to the Board more than three years prior to the filing of suit.

Accordingly, the exception of prescription was properly overruled, and the judgment is affirmed.

WATSON and BLANCHE, JJ., dissent and assign reasons.

MARCUS, J., dissents for reasons assigned by WATSON, J.

Blanche, J., retired, participated in this case ad hoc in place of Cole, J., the matter having been heard and submitted before Justice Cole replaced Justice Blanche on the Court.

. A reviewing court should grant an application for supervisory review of an interlocutory judgment which appears to be incorrect when the facts are not in dispute and reversal of the judgment will terminate the litigation. Herlitz Construction Co. v. New Iberia Hotel Investors, 396 So.2d 878 (La.1981).

. La.C.C. Art. 2762 provides:

"If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.”

La.R.S. 9:2772 provides in part:

“A. No action, whether ex contractu, ex delicto, or otherwise, to recover on a contract or to recover damages shall be brought against any person performing or furnishing land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property:

“(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner;

“B. The causes which are preempted (sic) within the time described above include any action:

"(1) For any deficiency in the performing or furnishing of land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), including but not limited to those preparatory to construction or in the design, planning, inspection or observation of construction, or in the construction of any improvement to immovable property:

“(2) For damage to property, movable or immovable, arising out of any such deficiency;

“This pre-emptive (sic) period shall extend to every demand whether brought by direct action or for contribution or indemnity or by third party practice, and whether brought by the owner or by any other person.

"C. If such an injury to the property or to the person or if such a wrongful death occurs during the ninth year after the date set forth in Sub-section A, an action to recover the damages thereby suffered maybe brought within one year after the date of the injury, but in no event more than eleven years after the date set forth in Sub-section A (even if the wrongful death results thereafter).” (emphasis added)

. It was also unnecessary in Pittman, because the construction defects were discovered and suit was filed within ten years of acceptance, to determine whether the ten-year period in La. C.C. Art. 2762 was solely a warranty period or was also a limitation on filing suit. In Planiol, supra at § 1914, it was suggested that Code Napoleon Article 1792 (1804) established a single delay for both the period of responsibility and the prescription of the action. However, since La.C.C. Art. 3545 then in effect (see present La.C.C. Art. 3500) fixed the prescriptive period for actions against contractors and architects for defects in buildings, it was arguable that La.C.C. Art. 2762 provided only a period of responsibility.

. The Legislature did not abolish the applicability of the doctrine of contra non valentem in the 1982 revision of the Civil Code. While La.C.C. Art. 3467, as revised in 1982, provides that “prescription runs against all persons unless exception is established by legislation” (see former Article 3521), the revision comments to La.C.C. Art. 3467 note that the courts have resorted to the doctrine of contra non valentem in exceptional cases and that "this jurisprudence continues to be relevant" after the 1982 revisions.

. Once it was determined that the three-year period in La.R.S. 9:5628 had a peremptive effect, six members of this court (two of the dissenters disagreed only with the failure to remand) concluded that the statute was not vio-lative of the open courts, due process or equal protection guarantees of the Louisiana Constitution. In the present case, the statute which provides favorable treatment only to a particular class (general contractors) of those-persons engaged in the construction of public buildings may be constitutionally suspect, but that issue need not be decided here.