2700 Bohn Motor, LLC, Navigator Insurance Company, and Certain Underwriters in London Subscribing to Policy No. B128415396w17 v. F.H. Myers Construction Corp., Orleans Sheet Metal Works and Roofing, Inc., B & J Enterprise of Metairie, Inc., Abc Insurance Company, Xyz Insurance Company, and 123 Insurance Company

2700 BOHN MOTOR, LLC, * NO. 2021-CA-0671
NAVIGATOR INSURANCE
COMPANY, AND CERTAIN *
UNDERWRITERS IN LONDON COURT OF APPEAL
SUBSCRIBING TO POLICY *
NO. B128415396W17 FOURTH CIRCUIT
*
VERSUS STATE OF LOUISIANA
*******
F.H. MYERS CONSTRUCTION
CORP., ORLEANS SHEET
METAL WORKS AND
ROOFING, INC., B & J
ENTERPRISE OF METAIRIE,
INC., ABC INSURANCE
COMPANY, XYZ INSURANCE
COMPANY, AND 123
INSURANCE COMPANY

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-12297, DIVISION “B-5”
Honorable Rachael Johnson,
******
Judge Roland L. Belsome
******
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Pro
Tempore Judge Madeline Jasmine)

Philip S. Brooks, Jr.
Ronald J. Kitto
Edward L. Fenasci
BROOKS GELPI HAASE, LLC
909 Poydras Street, Suite 2325
New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLANT

Barbara Malik
MARICLE & ASSOCIATES
3838 North Causeway Boulevard
Three Lakeway Center, Suite 3160
Metairie, LA 70002

Nicole S. Loeb
J. Scott Loeb
Cynthia M. Bologna
LOEB LAW FIRM, II
1180 W Causeway Approach
Mandeville, LA 70471

Scott H. Mason
Meredith R. Durham
PLAUCHE' MASELLI PARKERSON L.L.P.
701 Poydras Street
One Shell Square, Suite 3800
New Orleans, LA 70139

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
APRIL 20, 2022

RLB In this construction contract case, the Plaintiffs, the building owner and its
DLD insurers, appeal the trial court’s granting of a joint motion for summary judgment
MJ
in favor of the Defendants, the general and sub-contractors. In granting summary

judgment, the trial court found that the existence of a waiver of subrogation clause

in the contract precluded Plaintiffs’ claims. Therefore, it dismissed the case with

prejudice. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case arises out of a fire that occurred during the restoration of the old

Bohn Motor Company automobile dealership, located at 2700 South Broad Street

(Building), in New Orleans. On October 24, 2017, the owner of the Building, 2700

Bohn Motor, LLC, (Bohn Motor) retained F.H. Meyers Construction Corp. (F.H.

Meyers) to be the general contractor on the project.1 In turn, F.H. Meyers

contracted with Orleans Sheet Metal Works and Roofing, Inc. (OSM) to serve as a

subcontractor. Thereafter, OSM entered into a sub-subcontract with B&J

Enterprise of Metairie, Inc. (B&J) to assist with the roof installation.

1 Bohn Motor was restoring the property in an effort to house the Odyssey House Louisiana. The
project was to be funded by various sources including the New Orleans Redevelopment District.
F.H. Meyers recorded the contract with the land records division of the Clerk of Civil District
Court’s office on December 18, 2017.

1

The contract between Bohn Motor and F.H. Meyers (Prime Contract) sets

forth various provisions concerning the procurement of property insurance during

the restoration project to protect the parties’ interests. In December of 2017, in

accordance with the Prime Contract, Bohn Motor procured a commercial builder’s

risk insurance policy from Navigators Insurance Company (Navigators) and

Certain Underwriters in London Subscribing to Policy Number B128415396W17

(Underwriters).2

It is undisputed that on November 26, 2018, while the project was underway,

a fire ignited causing damages to the property. Bohn Motor and its insurer paid for

the costs associated with the repairs. Per the builder’s risk policy, Bohn Motor’s

insurance claim was subject to a $10,000.00 deductible.

On November 25, 2019, Plaintiffs, Bohn Motor, Navigators and

Underwriters filed a Petition for Damages claiming negligence against Defendants,

F.H. Meyers, OSM, and B&J. The petition alleged that pursuant to the terms and

conditions of the insurance policy, Navigators was subrogated to the all of the

rights that Bohn may have had in terms of its payment under the policy.

After answering the petition, Defendants filed a Joint Motion for Summary

Judgment. After a hearing, the trial court granted summary judgment in favor of

Defendants and dismissed Plaintiffs’ lawsuit with prejudice. This devolutive

appeal follows.

2 The purpose of builder’s risk coverage is to provide protection for the building while it is under

construction. TCC Contractors, Inc. v. Hosp. Serv. Dist. No. 3 of Par. of Lafourche, 10-0685, p.
12 (La. App. 1 Cir. 12/8/10), 52 So. 3d 1103, 1110.

2

ASSIGNEMENTS OF ERROR

On appeal, Plaintiffs raise five assignments of error pertaining to two issues:

1) the validity of the waiver of subrogation,3 and 2) the dismissal of Bohn Motor’s

claim for its insurance deductible. While Plaintiffs assert numerous assignments of

error, the only issue before this Court is whether the trial court erred in granting

summary judgment and dismissing Plaintiffs’ suit.

STANDARD OF REVIEW

In accordance with La. C.C.P. art. 966(A)(3), a motion for summary

judgment “shall be granted if the motion, memorandum, and supporting documents

show that there is no genuine issue as to material fact and that the mover is entitled

to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). This Court reviews the

granting of a summary judgment on appeal de novo, using the same criteria that

govern the trial court’s determination of whether summary judgment is

appropriate. Planchard v. New Hotel Monteleone, LLC, 21-00347, pp. 2-3 (La.

12/10/21), 332 So.3d 623, 625 (citations omitted). Generally, on a motion for

summary judgment, the burden of proof remains with the mover. But, if the

moving party will not bear the burden of proof on the issue at trial and identifies an

absence of factual support for one or more elements essential to the adverse party’s

claim, action, or defense, then the non-moving party must produce factual support

sufficient to counter that assertion and establish that he will be able to satisfy his

evidentiary burden of proof at trial. La. C.C.P. art. 966(D)(1). However, if the

3 Plaintiffs raise four assignments of error arguing the nullity of waiver of subrogation. In the
first two assignments, Plaintiffs assert that the waiver of subrogation is null due to two
provisions in the anti-indemnity statute, La. R.S. 9:2780.1, prohibiting hold harmless agreements
and the purchase of insurance for the fault of another. In the third assignment, Plaintiffs argue
that La. C.C. art. 2004 declares contractual provisions that limit one’s liability for gross fault null
and void. Last, Plaintiffs assert that the waiver of subrogation is inapplicable to OSM and B&J
because they were not parties to the prime contract.

3

opponent of the motion cannot do so, there is no genuine issue of material fact and

summary judgment will be granted. Id.

DISCUSSION

Waiver of Subrogation

As to the validity of the waiver of subrogation, Navigators claims to be

subrogated to the rights of Bohn Motor, the owner of the building involved in the

project. Thus, we begin our analysis with an examination of the rights and

obligations of Bohn Motor. It is well settled in Louisiana law that a subrogee can

have no greater rights than those possessed by its subrogor and is subject to all

limitations applicable to the original claim of the subrogor. Starr Surplus Lines

Ins. Co. v. Bernhard MCC, L.L.C., 20-78, p. 5, 308 So.3d 372, 376 (La. App. 5 Cir.

12/2/20), writ denied, 21-00031 (La. 3/2/21), 311 So.3d 1060 (citation omitted);

Gray Ins. Co. v. Old Tyme Builders, Inc., 03-113, p. 5 (La. App. 1 Cir. 4/2/04), 878

So.2d 603, 607, writ denied, 04-1067 (La. 6/18/04), 876 So.2d 81 (citing Travelers

Ins. Co. v. Impastato, 607 So.2d 722, 724 (La. App. 4th Cir. 1992); State v. U.S.

Fidelity & Guar. Co., 577 So.2d 1037, 1039 (La. App. 4th Cir. 1991). An analysis

of the rights of Bohn Motor includes examination of the rights and obligations of

Bohn Motor under the Prime Contract between Bohn Motor and F.H. Meyers, the

general contractor.

The Prime Contract between Bohn Motor and F.H. Meyers for the

renovation consists of AIA Document A101-2007, a widely-used standard form

construction contract, and AIA Document A201-2007, which was incorporated by

reference.4 In the Prime Contract, AIA Document A101, F.H. Meyers agreed to

4 The AIA (American Institute of Architects) promulgates a variation of this contract every

decade (the most current version is A101-2017) and, as an industry standard, it is used in

4

provide construction services and materials to the owner, Bohn Motor, for a price

of $9,480,000.00. Additionally, the general conditions for the Prime Contract are

provided in AIA Document A201.5 Document A201 details many of the rights and

responsibilities of the various participants in a large construction project, including

the owner, contractor, architects, and subcontractors.

Article 11 sets forth the insurance requirements for contractor’s liability

insurance, owner’s liability insurance, property insurance, boiler and machinery

insurance, loss of use insurance, waivers of subrogation, and performance bonds.

Specifically, Article 11.3 requires the owner to purchase “all-risk” property

insurance (commonly referred to as builder’s risk insurance) to be in effect until

the last payment on the Prime Contract is made or until no person or entity other

than the owner has an insurable interest in the property, whichever is later. The

property insurance “shall” include the interests of the owner, the contractor,

subcontractors, and sub-subcontractors in the project. The required “all-risk”

policy is to provide coverage against the perils of fire and physical loss or damage,

theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm,

falsework, testing and startup, temporary buildings and debris removal. Notably,

Article 11.3.1.3 states, “[i]f the property insurance requires deductibles, the Owner

shall pay costs not covered because of such deductibles.”

At issue in this case is the waiver of subrogation contained in Article 11.3.7,

which states:

construction projects all over the country. Some of the terms and provisions in the contract have
changed very little over the many decades since the contract was first published; as a
consequence of this, and the contract’s widespread usage as an industry standard, there has been
extensive judicial and scholarly analysis of its terms and provisions. C.f., Starr Surplus Lines
Ins. Co., 20-78, p. 5, 308 So.3d at 376 n. 5.
5 As specified in AIA Document A201, the “contract” between Bohn Motor and F.H. Meyers

consists of both the agreement set forth in A102, the general conditions of A201, and other
drawings and documents.

5

The Owner and Contractor waive all rights against (1) each other
and any of their subcontractors, sub-subcontractors, agents and
employees, each of the other, and (2) the Architect, Architect's
consultants, separate contractors described in Article 6, if any, and
any of their subcontractors, sub-subcontractors, agents and
employees, for damages caused by fire or other causes of loss to
the extent covered by property insurance obtained pursuant to
this Section 11.3 or other property insurance applicable to the
Work, except such rights they have to proceeds of such insurance
held by the Owner as fiduciary. The Owner or Contractor, as
appropriate, shall require of the Architect, Architect's consultants,
separate contractors described by Article 6, if any, and the
subcontractors, sub-subcontractors, agents and employees of any of
them, by appropriate agreements, written where legally required for
validity, similar waivers each in favor of other parties enumerated
herein. The policies shall provide such waivers of subrogation by
endorsement or otherwise. A waiver of subrogation shall be
effective as to a person or entity even though that person would
otherwise have a duty of indemnification, contractual or
otherwise, did not pay the insurance premium directly or
indirectly, and whether or not the person or entity had an
insurable interest in the property damaged. (Emphasis supplied).

This clause is commonly referred to as a “mutual waiver of subrogation.” In

Starr Surplus Lines Ins. Co., the Fifth Circuit Court of Appeal explained the

practical use of mutual waivers of subrogation:

The purpose behind such a waiver is to assure that, in instances of
losses covered by the policy, the insurer is to bear the risk of loss
regardless of any fault on the part of the identified parties, as well as
to prevent a potential windfall to the insurer subrogated to the rights
of an insured against other parties to the contract. Given the
complexity of construction projects, which may involve many parties
whose work creates an insurable interest in the project, shifting the
risk of property losses to an insurer is desirable to prevent disputes
between the parties working on the project during the course of
construction.

Id., 20-78, pp. 7-8, 308 So.3d at 378; see also U.S. Fidelity & Guar. Co., 577

So.2d at 1039 (waiver provisions of this type reflect a clear intention to shift the

risk of loss during construction to an insurer in order to avoid disputes among the

parties which might cause delays in the completion of the construction).

6

In U.S. Fidelity & Guar. Co., supra, this Court addressed the effects of the

waiver of subrogation provision under similar circumstances. In that case, the

State’s insurer brought a subrogation action against the State’s contractor and

subcontractors after paying the State damages under a fire policy. Id., 577 So.2d at

1038. The trial court found that the contract between the State and its general

contractor contained an express waiver of subrogation provision to the extent

covered by insurance. Id. Finding the State’s insurer had no greater rights than the

State, it granted a partial summary judgment in favor of the contractors. This Court

affirmed. Id., 577 So.2d at 1039.

As in U.S. Fidelity & Guar. Co., Bohn Motor clearly waived its claims

against Defendants. As such, Bohn Motor had no rights to which the insurers,

Navigators and Underwriters could be subrogated. See U.S. Fidelity & Guar. Co.,

577 So.2d at 1039; Travelers Ins. Co., 607 So.2d at 724; Gray Ins. Co., 03-1136, p.

5, 878 So.2d at 607; Starr Surplus Lines Ins. Co., 20-78, pp. 9-11, 308 So3d at

379-80.

In support of its argument that the waiver of subrogation is invalid, Plaintiffs

raise three issues concerning: 1) the anti-indemnity statute, 2) La C.C. art. 2004,

and 3) OSM and B&J’s privity of contract. First, Plaintiffs argue that the waiver

violates Sections B and C of the construction anti-indemnity statute, La. R.S.

9:2780.1, which prohibit hold harmless agreements and the purchase of insurance

for the fault of another. La. R.S. 9:2780.1 states, in pertinent part:

B. Notwithstanding any provision of law to the contrary and except as
otherwise provided in this Section, any provision, clause, covenant,
or agreement contained in, collateral to, or affecting a motor
carrier transportation contract or construction contract which
purports to indemnify, defend, or hold harmless, or has the effect
of indemnifying, defending, or holding harmless, the indemnitee
from or against any liability for loss or damage resulting from the

7

negligence or intentional acts or omissions of the indemnitee, an agent
or employee of the indemnitee, or a third party over which the
indemnitor has no control is contrary to the public policy of this
state and is null, void, and unenforceable.

C. Notwithstanding any provision of law to the contrary and except as
otherwise provided in this Section, any provision, clause, covenant,
or agreement contained in, collateral to, or affecting a motor
carrier transportation contract or construction contract which
purports to require an indemnitor to procure liability insurance
covering the acts or omissions or both of the indemnitee, its
employees or agents, or the acts or omissions of a third party over
whom the indemnitor has no control is null, void, and
unenforceable. However, nothing in this Section shall be construed to
prevent the indemnitee from requiring the indemnitor to provide proof
of insurance for obligations covered by the contract. (emphasis
supplied).

In its reasons for judgment, the trial court found that the anti-

indemnity statute did not nullify the subrogation waiver because indemnity

agreements and subrogation waivers have separate and distinct legal

meanings in a contract. We agree.

In Fontenot, the Louisiana Supreme Court explained the differences between

an indemnification clause and a waiver of subrogation:

The indemnification clause and the waiver of subrogation
clause, when used together, fit hand in glove. They offer two distinct
advantages[.] … The indemnification clause allows the … company to
shift liability to the … service contractor. The waiver of subrogation
supplements this shifting of liability by assuring that the … company
will not be exposed to an action for reimbursement of compensation
payments. When the waiver of subrogation clause is used alone, there
is no shifting of liability to “supplement”. And by itself, a waiver of
subrogation clause does not shift the … company’s liability. This shift
of liability only occurs when the two clauses are used together. Thus,
voiding a waiver of subrogation clause only achieves the purpose of
the Anti-Indemnity Act when such a clause is sought to be enforced in
conjunction with the enforcement of an indemnification clause.

Fontenot v. Chevron U.S.A. Inc., 95-1425, pp. 11-12 (La. 7/2/96), 676 So.2d 557,

564-65. While the Fontenot case involved the Louisiana Oilfield Anti-Indemnity

Act, La. R.S. 9:2780, the Louisiana construction anti-indemnity statute

8

substantially mirrors the Oilfield Anti-Indemnity Act.6 As such, the Louisiana

Supreme Court’s legal analysis is analogous to this case.

Similar to Fontenot, the waiver, in this case, is not supplementing an

indemnification clause. Moreover, Bohn Motor was never required to obtain

liability insurance for Defendants. In fact, Article 11 of Prime Contract requires

the contractor and the owner to provide its own Commercial General Liability

Insurance. As such, there was no shift in liability, rather there was an allocation of

a risk. Accordingly, the waiver of subrogation, alone, does not violate Section B

or C of the construction anti-indemnity statute.

Next, Plaintiffs argue that La. C.C. art. 20047 renders contractual provisions

excluding gross fault null and void. Therefore, it concludes that the waiver of

subrogation is invalid. As discussed above, the waiver of subrogation does not

shift liability between the parties. Equally so, the terms of the waiver do not

exclude or limit liability of any party for intentional or gross fault. Thus, La. C.C.

art. 2004 does not prohibit the enforcement of the waiver.

Finally, Plaintiffs assert that the waiver of subrogation is inapplicable to

OSM and B&J because they were not parties to the Prime Contract. They further

argue that OSM and B&J were not third party beneficiaries. We disagree.

La. C.C. art. 1978 provides, in relevant part: “[a] contracting party may

stipulate a benefit for a third person called a third party beneficiary.” Under

Louisiana law, such a contract for the benefit of a third party is commonly referred

6 Each statute was prompted by service providers who would otherwise be excluded from

contracts, unless they absorbed the liability costs of the project owners.
7 La. C.C. art. 2004 states, in relevant part: “Any clause is null that, in advance, excludes or

limits the liability of one party for intentional or gross fault that causes damage to the other
party.”

9

to as a “stipulation pour autrui.” Joseph v. Hosp. Serv. Dist. No. 2 of Par. of St.

Mary, 05-2364, p. 7 (La. 10/15/06), 939 So.2d 1206, 1211.

The jurisprudence sets forth three criteria for determining whether

contracting parties have provided a benefit for a third party: 1) the stipulation for a

third party is manifestly clear; 2) there is certainty as to the benefit provided the

third party; and 3) the benefit is not a mere incident of the contract between the

promisor and the promisee. Id., 05-2364, pp. 8-9, 939 So.2d at 1212. In applying

these criteria, we rely on the words of Article 1978 that the contract must “stipulate

a benefit for a third person.” Id., 05-2364, p. 9, 939 So.2d at 1212. The most basic

requirement of a stipulation pour autrui is that the contract manifest a clear

intention to benefit the third party. Id. Each contract must be evaluated on its own

terms and conditions. Id.

Here, the plain language of Article 11.3.7 operates as a waiver of the rights

of the owner and the general contractor against each other and their subcontractors

and sub-subcontractors on the project for property damage to the extent those

damages are covered by insurance. The stipulation is manifestly clear, the benefit

is certain and the benefit is not incidental. To that end, when procuring the

required property insurance for the project, Article 11.3.1 of the Prime Contract

mandates that the owner include the interests of itself, the contractor,

subcontractors, and sub-subcontractors. Under the terms and conditions of the

Prime Contract, OSM and B&J were third party beneficiaries. As such, the waiver

of subrogation applies to them.

Given the foregoing, we find as a matter of law that the mutual waiver of

subrogation clause contained in the Prime Contract precludes the Plaintiffs’ claims

against Defendants. Accordingly, the trial court was correct in dismissing

10

Plaintiffs’ claims, to the extent they were covered under the builder’s risk property

insurance policy.

Bohn Motor’s Claim for Insurance Deductible

As to the dismissal of Bohn Motor’s claim for its insurance deductible, it

argues that the waiver was not applicable to its claim for the uninsured portion of

the damages. We agree. However, we find, as a matter of law, Bohn Motor was

responsible for the deductible pursuant to a related clause in the contract.8

A contract is to be construed as a whole, and each provision in the contract

must be interpreted in light of the other provisions. One provision of the contract

should not be construed separately at the expense of disregarding other provisions.

See, La. C.C. art. 2050.9 Neither should a contract be interpreted in an

unreasonable or a strained manner so as to enlarge or to restrict its provisions

beyond what is reasonably contemplated by its terms or so as to achieve an absurd

conclusion. Edwards v. Dougherty, 03-2103, p. 11 (La.10/1/04), 883 So.2d 932,

941.

When the words of a contract are clear and explicit and lead to no absurd

consequences, no further interpretation may be made in search of the parties’ intent

and courts must enforce the contract as written. See, La. C.C. art. 2046.10 Courts

lack the authority to alter the terms of contracts under the guise of contractual
8 While Defendants did not raise the issue of the Plaintiff’s insurance deductible in their motion

for summary judgment, the issue was raised in the opposition brief. In particular, Plaintiffs
argued that the waiver did not apply to the deductible. In response to that argument, Defendants
raised the related clause, wherein Plaintiffs agreed to cover the deductible. “La. C.C.P. art.
966(F) makes clear that, in deciding a motion for summary judgment, a court can consider only
the issues raised in the motion or opposition filed by the parties. The court cannot rule on issues
not raised by the parties.” Serou v. Touro Infirmary, 15-0747, p. 9 (La. App. 4 Cir. 4/13/16),
191 So.3d 1090, 1096. Considering the motion and opposition raised issues concerning the
construction and interpretation of the Prime Contract, we find this issue to be sufficiently raised.
9 La. C.C. art. 2050 states: “[e]ach provision in a contract must be interpreted in light of the other

provisions so that each is given the meaning suggested by the contract as a whole.”
10 La. C.C. art. 2046 states: “[w]hen the words of a contract are clear and explicit and lead to no

absurd consequences, no further interpretation may be made in search of the parties’ intent.”

11

interpretation when its provisions are couched in unambiguous terms. Cadwallader

v. Allstate Insurance Co., 02-1637, p. 4 (La. 6/27/03), 848 So.2d 577, 580.

The interpretation of a contract is normally a question of law. Brown v.

Drillers, Inc., 93-1019 (La. 1/14/94), 630 So.2d 741, 749-750. Likewise, the

determination of whether a contract is clear or ambiguous is a question of law.

Edwards, 03-2103, pp. 12-13, 883 So.2d at 941. Moreover, when a contract can be

construed from the four corners of the instrument without looking to extrinsic

evidence, the question of contractual interpretation is answered as a matter of law

and summary judgment is appropriate. Sims v. Mulhearn Funeral Home, Inc., 07-

0054, p. 10 (La. 5/22/07), 956 So.2d 583, 590.

The plain terms of the property insurance clauses in the Prime Contract

obligated Bohn Motor to procure property insurance, which specifically covered

fire damage, in favor of itself and all of the contractors and subcontractors

involved in the project. In association with the procurement of the property

insurance for the involved parties, the Prime Contract requires Bohn Motor to

cover the deductible. Specifically, Subsection 11.3.1.3, plainly states: “[i]f the

property insurance requires deductibles, the Owner shall pay costs not covered

because of such deductibles.” In light of these contractual provisions, it is clear

that Bohn Motor, as the owner of the project, was responsible for the deductible.

Accordingly, the trial court was correct when it dismissed Bohn Motor’s claim to

recover the deductible.

CONCLUSION

Upon our de novo review, we find that there are no genuine issues of

material fact and Defendants, F.H. Meyers, OSM, and B&J, are entitled to

12

summary judgment as a matter of law. Accordingly, the trial court’s judgment is

affirmed.

AFFIRMED

13