Liberty Personal Insurance Company v. Gary Wayne Perkins, Top Quality Builders, LLC, Shane Courville, James Koiner, Classic Roofing & Construction, LLC and ABC Insurance Company, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

LIBERTY PERSONAL INSURANCE NO. 2022 CW 0780

COMPANY
PAGE 1 OF 2

VERSUS

GARY WAYNE PERKINS, TOP QUALITY
BUILDERS, LLC, SHANE COURVILLE,
JAMES KOINER, CLASSIC ROOFING &
CONSTRUCTION, LLC AND ABC
INSURANCE COMPANY, INC.

CONSOLIDATED WITH

MICHAEL PHELPS, II AND REGINA
PHELPS

VERSUS AUGUST 29, 2022

TOP QUALITY BUILDERS, LLC AND
XYZ INSURANCE COMPANY

In Re: HSR Construction LLC, applying for supervisory writs,
2Zist Judicial District Court, Parish of Livingston,
Nos. 155179 c/w 165196.

BEFORE: McDONALD, McCLENDON, AND HOLDRIDGE, JJ.

WRIT GRANTED. The trial court’s January 18, 2022 Judgment
denying the exception raising the objection of peremption is
reversed. No action shall be brought against any person
performing or furnishing the design, planning, supervision,
inspection, or observation of construction or the construction
of immovables more than five years after the improvement has
been occupied by the owner. La. R.S. 9:2772(A) (1) (b). It is
undisputed that plaintiffs occupied the home by, at the latest,
February 28, 2015. Accordingly, the applicable peremptive period
expired on February 28, 2020.

The undisputed facts establish that Liberty Personal
Insurance Company’s second amended petition naming HSR
Construction, LLC as a defendant was filed on March 11, 2020,
after the expiration of the applicable peremptive period. see
La. R.S. 9:2772(A) (1) (a)-(c). Because this petition does not
relate back, it is perempted. See Stewart v. Continental
Casualty Co., Ine., 2011-0505 (La. App. lst Cir. 11/9/11), 79
So.3d 1047, 1053, writ denied, 2011-2721 (La. 2/7/12), 82 So.3d
285 (“Because the avoidance of the time period interferes with
the running of that time period, relation back of a petition
adding a new defendant is not permitted where the time period
involved is peremptive. Further, because the expiration of a
peremptive time period destroys the cause of action, there is
nothing for an amended or supplemental petition to relate back
to under LSA-C.C.P. art. 1153.”); see also Naghi v. Brener,
2008-2527 (La. 6/26/09), 17 So.3d 919; and Shields v. Alvin R.
Savoie & Associates, Inc., 2017-0602 (La. App. lst Cir.
11/1/17), 233 So.3d 694.

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

NO. 2022 CW 0780
PAGE 2 OF 2

As to the cross claim filed on July 2, 2020 by Top Quality
Builders, LLC and Gary Wayne Perkins against HSR Construction,
LLC, in response to Liberty Personal Insurance Company’s March
11, 2020 second amended petition, that claim was filed after the
February 28, 2020 expiration of the five-year peremptive period.
See La. R.S. 9:2772(A) (1) (a)-(c). Moreover, because Liberty
Personal Insurance Company’s second amended petition was not
filed within 90 days of the expiration of the peremptive period,
the exception set forth in La. R.S. 9:2772(A) (1) (c) does not
apply and the cross claim against HSR Construction, LLC is
perempted.

As to the June 1, 2020 third-party demand filed by Top
Quality Builders, LLC and Gary Wayne Perkins against HSR
Construction, LLC in response to the petition filed by Michael
Phelps, II and Regina Phelps, that claim was filed after the
February 28, 2020 expiration of the five-year peremptive period.
See La. R.S. 9:2772(A) (1) (a)-(c). The petition filed by Michael
Phelps, II and Regina Phelps was filed on November 8, 2019,
prior to the start of the 90-day exception period, and the
exception set forth in La. R.S. 9:2772(A) (1) (c) does not apply.
Accordingly, the third-party demand against HSR Construction,
LLC is perempted.

The exception raising the objection of peremption filed by
HSR Construction, LLC against Liberty Personal Insurance
Company, and against Top Quality Builders, LLC and Gary Wayne
Perkins’s cross-claim and third-party demand is granted.
Therefore, the claims asserted against HSR Construction, LLC are
dismissed with prejudice.

PMc
GH

COURT OF APPEAL, FIRST CIRCUIT

aS)

DEPUTY CLERK OF COURT
FOR THE COURT