Stantec Consulting Services Inc. v. Kiewitt Louisiana Co.

STATE OF LOUISIANA

A# ffi W."
I 9 il WA

FIRST CIRCUIT

NO. 2025 CA 0536

STANTEC CONSULTING SERVICES INC.
V& A CONSULTING ENGINEERS, INC.,
vis
AND PATTERSON PUMP COMPANY

CO VERSUS

KIEWIT LOUISIANA CO., M.R. PITTMAN GROUP, L.L.C.,
AND TRAYLOR BROS., INC., JOINT VENTURERS
OPERATING UNDER THE TRADE NAME
PCCP CONSTUCTORS, A JOINT VENTURE

Judgment Rendered:

On Appeal from the
19th Judicial District Court
Parish of East Baton Rouge, State of Louisiana
Trial Court No. 750670

The Honorable Wilson E. Fields, Judge Presiding

Albert D. Clary Attorneys for Co-Plaintiff/Appellant,
J. Weston Clark V& A Consulting Engineers, Inc.
Alec B. Keane
Baton Rouge, Louisiana

David L. Guerry Attorneys for Co-Plaintiff/Appellant,
Baton Rouge, Louisiana Stantec Consulting Services, Inc.
Ross D. Ginsberg, Pro Hac Vice
Matthew A. Marrone, Pro Hac Vice
Atlanta, Georgia

Matthew W. Bailey Attorneys for Co-Plaintiff/Appellant,
Katherine M. Cook Patterson Pump Company
Baton Rouge, Louisiana

Steven W. Usdin Attorneys for Defendants -Appellees,
Laura M. Blockman Kiewit Louisiana Co.,
New Orleans, Louisiana M.R. Pittman Group, L.L.C., and
Grant H. Willis, Pro Hac Vice Traylor Bros., Inc., doing business as
Washington, DC PCCP Constructors, Joint Venture

BEFORE: LANIER, WOLFE, AND RESTER, JJ.

2

WOLFE, J.

This appeal concerns a trial court judgment sustaining a dilatory exception

pleading the objection of prematurity based on an arbitration agreement and

dismissing, without prejudice, a petition for declaratoryjudgment regarding alleged
perempted claims. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In June of 2012, the United States Army Corps of Engineers (" the Army

Corps") solicited proposals to design and construct Permanent Canal Closures and

Pump Stations (the "Project") in and around New Orleans, Louisiana. The Army

Corps awarded the Project contract to PCCP, a Joint Venture, made up of three

individual entities, Kiewit LouisianaCo., M.R. Pittman Group, L.L.C., and Traylor

Bros., Inc. ( collectively " PCCP"). PCCP, in turn, subcontracted and with many

other entities to perform the work on the Project. Three subcontractor entities are

relevant to this appeal: Stantec Consulting Services, Inc., V& A Consulting
I
Engineers, Inc., and Patterson Pump Company ( collectively " the Plaintiffs").

The Army Corps and PCCP agreed that substantial completion of the Project

occurred in December 2017. Thereafter, in April 2023, the Army Corps asserted

five separate claims against PCCP regarding alleged problems/defects, some of

which implicated work performed by PCCP' s subcontractors, including the

Plaintiffs. While PCCP and the Army Corps discussed solutions to the claims, the

Plaintiffs and PCCP agreed to enter into an Arbitration Agreement to resolve the

respective responsibility of each of the parties for the Army Corps' claims. 2 The

1 PCCP and Stantec entered a subcontract for design on the Project; V& A is an engineering
subconsultant to Stantec; and Patterson manufactured and supplied pumps pursuant to another
subcontract.

2 Other subcontractors and subconsultants, River City Environmental Services, LLC, Fugro USA
Land, Inc., and Infilco Degremont, Inc., now known as Suez Water Technologies, were parties to
the Arbitration Agreement as well, but the only relevant parties for purposes of this appeal are
PCCP and the Plaintiffs.

3

Arbitration Agreement was executed between PCCP and the Plaintiffs, with an

effective date of July 18, 2023.

PCCP filed an arbitration demand with JAMS Mediation, Arbitration, and

Alternative Dispute Resolution Services (" JAMS"), the arbitral body the parties

agreed upon, on July 20, 2023, but then immediately requested that JAMS stay the

arbitration proceedings so that PCCP could pursue resolution of its disputes with the

Army Corps and to allow the parties to the Arbitration Agreement to work toward

resolution of their disputes regarding their respective liability. During the

negotiations in the course of the stay, an issue arose as to whether the Arbitration

Agreement excluded perempted claims. On May 3, 2024, PCCP notified the

Plaintiffs ofits intention to lift the previously agreed- upon stay and to re-initiate the

arbitration proceedings related to the Project' s alleged defects as asserted by the

Army Corps. On July 12, 2024, the Plaintiffs filed a petition for declaratory

judgment against PCCP in the Nineteenth Judicial District Court, seeking a

declaration that perempted claims were not encompassed in the Arbitration

Agreement, that the Arbitration Agreement was null to the extent that its scope

included p erempted claims, and that p eremption had extinguished PCCP' s claims

against the Plaintiffs relating to their work on the Project. On July 16, 2024, PCCP

submitted a proposed procedure for arbitrator selection to JAMS and requested that

the arbitration move forward.

In response to the Plaintiffs' p etition, PCCP filed a dilatory exception raising

the objection of prematurity on September 11, 2024. PCCP asserted that the

Plaintiffs' petition was premature because of the valid Arbitration Agreement that

existed between the parties, where the parties expressly agreed to arbitrate " Any

Disputes ... relating to the Project[,]" including peremption. PCCP requested that

the trial court dismiss the Plaintiffs' p etition in order to allow the parties to resolve

their disputes through the agreed- upon arbitration process. The Plaintiffs opposed

PCCP' s exception ofprematurity. The trial court heard the exception on December

9, 2024, and took the matter under advisement. On January 29, 2025, the trial court

signed a judgment sustaining PCCP' s exception of prematurity and dismissing,

without prejudice, the Plaintiffs' petition for declaratory judgment. The Plaintiffs

appealed asserting that the trial court legally erred in failing to resolve the issue of

peremption before compelling arbitration. 3

LAW AND ANALYSIS

Louisiana Code ofCivil Procedure article 926( A)( 1) provides for the dilatory

exception pleading the objection of prematurity. An action is premature if it is

brought before the right to enforce the obligation sued on has accrued. See La. Code

Civ. P. art. 423. The objection ofprematurity raises the issue ofwhetherthe judicial

cause of action has yet to come into existence because some prerequisite condition

has not been fulfilled. Crosby as Trustee of Aaron Guidry Trust v. Crosby

Enterprises, LLC, 2023- 1338 ( La. App. 1st Cir. 8/ 9/ 24), 395 So. 3d 296, 300.

The defense that the Plaintiffs in this suit are not entitled to judicial relief

because of a valid agreement to submit claims to arbitration may be raised by the

dilatory exception of prematurity. Crosby, 395 So. 3d at 300. Since PCCP raised

the failure to arbitrate by means of the exception of prematurity, PCCP had the

burden of showing the existence of a valid contract to arbitrate, by reason of which

the judicial action is premature. Id. An exception ofprematurity raises a question

of law subject to de novo review. Id.

Arbitration is favored in Louisiana and under federal law. Crosby, 395 So.3d

at 301. Arbitration is a substitute for litigation. National Tea Co. v. Richmond,

548 So. 2d 930, 933 ( La. 1989). The purpose of arbitration is settlement of

3 On June 10, 2025, the Plaintiffs filed a motion to stay the ongoing arbitration pending resolution
of their devolutive appeal in this court. On August 22, 2025, this court denied the motion to stay.
Thus, the arbitration proceedings are moving forward in accordance with the Arbitration
Agreement while this appeal is simultaneously being decided.

5

differences in a fast, inexpensive manner before a tribunal chosen by the parties. Id.

By consensually substituting arbitration for litigation, the parties are presumed to
accept the risk of procedural and substantive mistakes of either fact or law by the

arbitrators, which mistakes are not reviewable by the courts. Durr Heavy

Construction, LLC v. Willow Grove —North, LLC, 2024- 0090 (La. App. l st Cir.

8/ 6/ 24), 2024 WL 3665532, * 5 ( unpublished), writ denied, 2024- 01106 ( La.

1/ 14/ 25), 398 So. 3d 650. Additionally, any doubt as to whether a controversy is

arbitrable should be resolved in favor of arbitration. J. Caldarera & Co. v. La.

Stadium & Exposition Dist., 98- 294 (La. App. 5th Cir. 12/ 16/ 98), 725 So. 2d 549,

551.

Notwithstanding the strong presumption in favor ofarbitration, the arbitration

clause or agreement which is sought to be enforced must have a " reasonably clear

and ascertainable meaning" in order to enforce arbitration. Kosmala v. Paul, 569

So. 2d 158, 162 ( La. App. 1st Cir. 1990), writ denied, 572 So. 2d 91 ( La. 1991).

Therefore, we begin our analysis by interpreting the language ofthe parties' contract

to arbitrate, which will determine the parameters of the arbitrator' s authority. See

Florida Gas Transmission Company, LLC v. Texas Brine Company, LLC,

2017- 0304 (La. App. 1st Cir. 12/ 6/ 18), 267 So. 3d 633, 636, writ denied, 2019-0333

La. 6/ 26/ 19), 275 So. 3d 876 ( arbitration is a matter of contract; the analysis begins

with the language of the contract).

The Louisiana Civil Code provides that the interpretation of a contract is the

determination of the common intent of the parties. La. Civ. Code art. 2045. Each

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. La. Civ. Code art.

2050. When the words of a contract are clear and explicit and lead to no absurd

consequences, no further interpretation maybe made in search ofthe parties' intent.

La. Civ. Code art. 2046. However, a doubtful provision must be interpreted in light

of the nature of the contract, equity, usages, the conduct of the parties before and

after the formation of the contract, and of other contracts of a like nature between

the same parties. La. Civ. Code art. 2053. These general contract principles govern

the question ofwho is bound by an arbitration agreement; a party cannot be required
Ciaccio v.
to submit to arbitration any dispute that he has not agreed to submit.

Cazayoux, 519 So.2d 799, 804 (La. App. 1 st Cir. 1987). See also Woodrow Wilson

Const. Co., Inc. v. MMR -Radon Constructors, Inc., 93- 2346 (La. App. 1st Cir.

4/ 8/ 94), 635 So. 2d758, 759, writ denied, 94- 1206 ( La. 7/ 1/ 94), 639 So. 2d 1167.

The threshold inquiry is whether the parties have agreed to arbitrate the

dispute in question. This determination involves two considerations: ( 1) whether

there is a valid agreement to arbitrate between the parties; and ( 2) whether the

dispute in question falls within the scope ofthat arbitration agreement. Crosby, 395

So. 3d at 301. See also Southeast Dirt, L.L.C. v. D. R. Horton, Inc. —Gulf Coast,

2024- 0724 (La. App. 1 st Cir. 12/ 27/ 24), 404 So. 3d 90, 94. The first question as to

whether a valid agreement to arbitrate exists is not actually in dispute in this case.

PCCP and the Plaintiffs all actively p articipated in the negotiation and execution of

the Arbitration Agreement. The Plaintiffs attached a copy of the July 18, 2023

Arbitration Agreement to its petition for declaratory judgment and PCCP attached a

copy of the same Arbitration Agreement between the parties to its exception of

prematurity.

As for the second question, PCCP argues that the scope of the Arbitration

Agreement includes a delegation of all issues, including peremption, to be decided

by the arbitrators pursuant to the American Arbitration Association (" AAA") rules,

unless otherwise agreed by all parties through an amendment to the Arbitration

Agreement. However, the Plaintiffs contend that the Arbitration Agreement did not

cover p erempted claims and, therefore, the trial court should have resolved the issue
of peremption before compelling arbitration. To resolve this question, we must

7

examine the language of the Arbitration Agreement as a whole to determine what

issues the parties agreed to arbitrate.

The pertinent portions of the Arbitration Agreement between PCCP and the

Plaintiffs provide as follows, with emphasis added:

WHEREAS, certain disputes have been raised by the [ Army
Corps] relating to the Project as described . .. ( collectively, " the
Disputes"); and

WHEREAS, for the sake of efficiency, the Parties wish to
arbitrate any Disputes that currently exist or may arise among
them in a single arbitration proceeding, rather than litigating such
disputes or engaging in multiple arbitrations or other dispute resolution
proceedings; and

THEREFORE, the Parties agree as follows:

1. This Agreement is a binding and enforceable arbitration
agreement pursuant to the Federal Arbitration Act [" FAA"].

2. Any Disputes among the Parties relating to the Project will be
arbitrated to a panel of three arbitrators before JAMS. Except
as provided below, the rules applicable to the arbitration shall be
the American Arbitration Association (" AAA") Construction
Industry Arbitration Rules and Mediation Procedures (" Rules')
unless otherwise agreed by the Parties through an amendment
to this Agreement executed by all Parties.

4. The filing of the arbitration is intended to preserve any claims that
might be time-barred if the arbitration were not commenced, but is
not intended to revive any claims that might be time-barred or
expired prior to such filing. This Agreement does not constitute
an admission or acknowledgement of any fact or conclusion of
law related to any statute of limitations or similar defense
concerning the timeliness of asserting a claim.

7. No party shall commence a legal proceeding against any other
Party in any other forum relating in any manner to the Project
while it remains a Party to this Agreement.

8. This Agreement shall be governed by the [ FAA] and related
federal law. The applicable substantive law applicable to the
Disputes, absent a different agreement of the Parties, shall be
determined by their respective governing contracts or purchase
orders or as otherwise be determined at law.

12. This Agreement is entered into by the Parties subject to a full
reservation of their rights with respect to any claims or defenses
that may exist or arise with respect to the Project and their

respective rights and obligations thereto, including any contract to
which they are a party.

Once the parties enter into an enforceable Arbitration Agreement, it is as

binding as the law upon them. Parker v St. Tammany Parish Hasp. Service

District, 94- 2278 (La. App. 1st Cir. 2/ 27/ 96), 670 So. 2d 531, 534, writ denied, 96-

0805 (La. 5/ 10/ 96), 672 So. 2d 925. Where there is doubt, the general rule is that it

should be resolved in favor of, not against, arbitration. Id. Additionally, when the

parties expressly provide that the FAA and AAA rules govern the resolution of

disputes between the parties, as in Paragraphs 1, 2, and 8 of this Arbitration

Agreement, then the parties are empowering the arbitrator to decide challenges to

the enforceability ofthe agreement and the overall arbitrability. AAA Rules provide
that the arbitrator shall have the power to rule on its own jurisdiction, including any

objections with respect to the existence, scope, or validity of the arbitration

agreement. See Florida Gas Transmission Company, 267 So. 3d at 636-637;

Jasper Contractors, Inc. v. E- Claim.com, LLC, 2011- 0978 ( La. App. 1 st Cir.

5/ 4/ 12), 94 So. 3d 123, 133 ( the explicit incorporation of rules that empower an

arbitrator to decide issues of arbitrability serves as " clear and unmistakable

evidence" of the parties' intent to delegate such issues to an arbitrator). See also

Florida Gas Transmission Company, LLC v. Texas Brine Company, LLC,

2018- 0075 ( La. App. 1st Cir. 7/ 1/ 19), 285 So. 3d 1093, 1098- 1099, writ denied,

2019- 01405 ( La. 11/ 12/ 19), 282 So. 3d 225.

In this case, the Plaintiffs argue that the issue ofperempted claims affects the

very validity of the Arbitration Agreement. In making this argument, the Plaintiffs

rely on two cases: Lemoine Company, LLC v. Durr Heavy Construction, LLC,

2015- 1997 (La. App. l st Cir. 10/ 31/ 16), 206 So. 3d244, writ denied, 2016-2100 (La.

4 The AAA Construction Industry Arbitration Rules and Mediation Procedures are available at
https:// www.adr.org/industries/construction. Rule 9 specifically discusses the jurisdiction of the
arbitrator.

2

1/ 13/ 17), 215 So. 3d247, and Boh Bros. Construction Co., LLC v. Cypress Bend

Real Estate Development Company, LLC, 2015- 1996 ( La. App. 1st Cir.

10/ 31/ 16), 206 So. 3d 1131, writ denied, 2016- 02099 (La. 1/ 13/ 17), 215 So. 3d 255.

Those cases held that where there is no explicit agreement to arbitrate the issue of

compelled to arbitrate perempted claims.
peremption, a party cannot be

Additionally, those cases rely on Louisiana law that if a claim is perempted it is
extinguished, leaving no existing claim for an arbitrator to consider and no binding
agreement to enforce. We find Lemoine and Boh Bros. distinguishable, however,

because both of those cases involved arbitration clauses embedded within

subcontracts that were not separately and intentionally negotiated and agreed upon

by all parties, as in the case sub judice. In this case, the Arbitration Agreement is a

separate contract specifically negotiated between the parties, which expressly

assigned any disputes related to the Project to be arbitrated pursuant to FAA and
AAA rules, not Louisiana law.

The Arbitration Agreement explicitly provides that the parties will submit

Any Disputes among [them] relating to the Project" to arbitration. Furthermore, by
entering into the Arbitration Agreement, the p arties specifically agreed that they did
not admit or acknowledge anything "related to any statute of limitations or similar

defense concerning the timeliness ofasserting a claim." The dispute over perempted

claims is clearly connected to the merits of "Any Disputes" related to the Project,

which is reserved by the Arbitration Agreement and must be raised as a defense in

the arbitration proceedings. Thus, the overall validity ofthe Arbitration Agreement

is not at issue here.

Moreover, the Arbitration Agreement expressly bars any party from

commencing any " legal proceeding against the other party" in any forum other than

arbitration " relating in any manner to the Project." Peremption is an

issue/ dispute/ defense that is distinctly related to and arising out ofthe merits of any

10

claims associated with the Project. See Brown v. Kabco Builders, Inc., 2018-928

La. App. 3rd Cir. 6/ 5/ 19), 274 So. 3d 216, 225. See also Jung v. Couvillion, 2007-

1154 (La. App. 1 st Cir. 2/ 20/08), 984 So. 2d 83 8, 840- 841 ( when the existence ofthe

arbitration agreement is not disputed, the determination of the applicability oftime

limitations that deal with the merits of the controversy between the parties is a

function for the arbitrator). Ey attempting to have the defense of peremption

decided by the trial court by means of a declaratory judgment rather than by

participating in the arbitration process, the Plaintiffs are attempting to thwart the

basic purpose of the Arbitration Agreement to which they explicitly agreed. See

Parker, 670 So. 2d at 536. Therefore, we find that the parties are bound by the

agreement they made to arbitrate any dispute related to the Project, including
peremption. The trial court did not err in sustaining the exception of prematurity

and dismissing the Plaintiffs' claims against PCCP.

CONCLUSION

For the reasons stated, we affirm the trial court' s January 29, 2024 judgment

sustaining PCCP' s dilatory exception raising the objection of prematurity basedd on

the Arbitration Agreement, and dismissing the Plaintiffs' petition for declaratory

judgment without prejudice. All costs of this appeal are assessed against the

Plaintiffs, Stantec Consulting Services, Inc., V& A Consulting Engineers, Inc., and

Patterson Pump Company.

i

11