Couvillion Group, LLC v. Plaquemines Parish Government

COUVILLION GROUP, LLC * NO. 2025-CA-0356

VERSUS *
COURT OF APPEAL
PLAQUEMINES PARISH *
GOVERNMENT FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
25TH JDC, PARISH OF PLAQUEMINES
NO. 61-918, DIVISION “B”
Honorable Michael D. Clement,
******
Judge Paula A. Brown
******
(Court composed of Chief Judge Roland L. Belsome, Judge Paula A. Brown, Judge
Rachael D. Johnson)

George Pivach, II
Corey E. Dunbar
PIVACH, PIVACH, HUFFT & THRIFFILEY, L.L.C.
8311 Highway 23,
Suite 104
P. O. Box 7125
Belle Chasse, LA 70037-7125

Patrick J. McShane
Danica Benbow Denny
Phoebe A. Hathorn
FRILOT, LLC
1100 Poydras Street, Suite 3700
New Orleans, LA 70163-3600

COUNSEL FOR PLAINTIFF/APPELLEE

Jimmy A. Castex, Jr.
W. Lee Kohler
CASTEX ESNARD, L.L.C.
650 Poydras Street, Suite 2415
New Orleans, LA 70130

Jacque Rene Touzet
Rennie S. Buras, II
PLAQUEMINES PARISH GOVERNMENT
333 F. Edward Hebert Blvd., Bldg. 100
Belle Chasse, LA 70037

COUNSEL FOR DEFENDANT/APPELLANT

AMENDED
AFFIRMED AS AMENDED
JANUARY 7, 2026

PAB
RLB
RDJ

This is a dispute over delay damages arising from a construction contract.

Appellant, Plaquemines Parish Government (“PPG”), seeks appellate review of the

district court’s April 15, 2025 judgment, which awarded Appellee, Couvillion

Group, LLC (“Couvillion”), a total of $2,782,724.31 in damages plus all costs and

reasonable attorney’s fees, interest from the date of judicial demand and dismissed

PPG’s reconventional demand with prejudice. For the reasons that follow, we

amend the district court’s judgment to reflect an award of $82,320.00 for the

emergency mobilization and demobilization for Hurricane Isaac; we amend the

district court’s award of legal interest from the date of judicial demand to the date

of substantial completion; and we affirm the remainder of the district court’s

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

For the sake of brevity, we are outlining only the salient factual history as

agreed upon by the parties in their joint Stipulations of Fact (“Stipulations”). In

August of 2005, Hurricane Katrina slammed into the Louisiana coastline, causing

massive destruction in its wake. One of the casualties of the storm was the Port

Eads dock facility located near the southernmost tip of Plaquemines Parish.

1

Several years later, in October of 2010, PPG put out for public bid a project to

reconstruct the Port Eads facility (the “Project”). The Project was to include two

camps, a new marina with a wooden dock, an icehouse and a fueling facility.

Couvillion submitted the lowest bid and was awarded the contract for the Project

(the “Contract”). Under the terms of the Contract, Couvillion was required to

complete the Project in 395 days. That meant that once PPG issued a notice to

proceed on March 1, 2011, Couvillion was required to achieve substantial

completion by March 30, 2012.1

After a series of change orders, the substantial completion date was revised

to August 15, 2012. Also, sometime in early 2012, the Federal Emergency

Management Agency (“FEMA”) informed PPG that the design for the fuel tank

platform might need to be revised to comply with FEMA’s base flood elevation

requirements in order for the cost of the Project to be reimbursable by FEMA. On

April 4, 2012, Tim Hart with Professional Engineering Consultants (“PEC”),

PPG’s project engineer, informed Couvillion via email that “[w]e have been

notified by ASCE2/PPG that FEMA is requiring the Fuel Tank Platform to be

raised [two] feet above plan elevation” and then requested that Couvillion “[p]lease

cease all production of associated materials for the fuel tank platform that might

not be usable at the higher elevation i.e., stairs, pile caps.” In their Stipulations, the

parties refer to this correspondence as the Partial Stop Work Order (“Partial

SWO”). The Partial SWO was ultimately lifted when, on November 27, 2012,

1 As defined by the Certificate of Substantial Completion, “Substantial Completion” is achieved

when a project is finished enough for an owner to use it for its intended purpose, even if minor
“punch list” items remain. Final completion is accomplished once those remaining items are
concluded.
2 All South Consulting Engineers, PPG’s project manager.

2

PPG instructed Couvillion to proceed with the work on the fuel tank platform at

the original plan elevation.

On November 1, 2013, the Project was formally declared to be substantially

complete. Following, counsel for Couvillion sent three separate letters on

December 12, 2013, June 30, 2014 and August 13, 2014, making amicable demand

on PPG for delay damages and additional expenses. Notably, PEC, PPG’s project

engineer, issued a memo on October 23, 2014, which concluded that Couvillion

was entitled to delay damages and additional expenses in the amount of

$1,105,210.91, subject to an offset of $60,000 in liquidated damages due to PPG.

After PPG failed to tender any payments, Couvillion filed a Petition for Mandamus

on January 14, 2015, alleging that, pursuant to La. R.S. 38:21913, PPG was liable

to: pay any sums PPG had already appropriated for payment to Couvillion; pay the

amount of delay damages and additional expenses approved by PEC; and pay court

costs and reasonable attorney’s fees.4 After a continuance and ongoing motion

practice, PPG filed a reconventional demand on November 5, 2021, alleging,

among other things, that Couvillion was at fault for any delays in the Project

timeline, and that PPG was entitled to $331,000.00 in liquidated damages for

Couvillion’s failure to complete the Project on time.

The matter came for a two-day bench trial on July17-18, 2024. A total of

four witnesses testified at trial: (1) Timothy Couvillion (“Mr. Couvillion”), owner

and CEO of Couvillion; (2) Don Carlow (“Mr. Carlow”), an expert in forensic

schedule analysis and critical path methodology, appearing on behalf of

3 Louisiana Revised Statutes 38:2191 will be more fully discussed, infra.

4 On June 16, 2015, Couvillion filed a First Supplemental and Amended Petition, which
amended the original petition seeking mandamus relief, which is a summary proceeding, to a
petition for an ordinary proceeding.

3

Couvillion; (3) Philip Lachin (“Mr. Lachin”), an expert in project management,

forensic scheduling analysis and critical path method analysis, appearing on behalf

of PPG; and (4) Michael Carbo (“Mr. Carbo”), accepted by the district court as an

expert to provide an opinion regarding forensic scheduling analysis, appearing on

behalf of PPG. Prior to trial, PPG and Couvillion had each filed motions in limine

to exclude the testimony and report of an expert witness (“Daubert motions”)—

PPG sought to exclude Mr. Carlow’s testimony and report, while Couvillion

sought to exclude those of Mr. Carbo. A brief hearing was held before the

commencement of the trial on July 17, and the district court denied both motions.

During the trial, neither party objected to the court’s acceptance of Mr. Carlow or

Mr. Carbo as expert witnesses.

Several months after the conclusion of the trial, both parties submitted post-

trial memoranda and proposed findings of fact. On April 15, 2025, the district

court rendered judgment in favor of Couvillion and against PPG, finding that

Couvillion was entitled to $2,782,724.31 in total damages, plus all costs and

reasonable attorney’s fees pursuant to La. R.S. 38:2191 and legal interest from the

date of judicial demand, and dismissed PPG’s reconventional demand with

prejudice. In detail, the court awarded damages for the following:

Delay damages for 278 days $2,030,415.00

Extra work for the larger crane:

$10,925/day for 24 days: $262,200.00

Extra work for the larger crane:

3 mobilizations at $26,500 each: $79,500.00

Emergency mobilization and demobilization

For Hurricane Isaac: $82,300.00

4

Fuel charge: $20,427.44

Utility trough cover: $16,666.60

Subcontractor (Faulk & Meek): $147,853.86

Subcontractor (Chain Electric): $143,361.41

The district court additionally issued its finding of facts pursuant to La. C.C.P. arts.

1917 and 1812.5 This timely appeal followed.

DISCUSSION

PPG offers multiple assignments of error for our review6. For efficiency, we

will address them in four separate sections: (1) PPG’s Daubert motion; (2)

5 Louisiana Code of Civil Procedure article 1917 provides, in pertinent part:

B. In nonjury cases to recover damages for injury, death, or loss, whether or not
requested to do so by a party, the court shall make specific findings that shall
include those matters to which reference is made in Paragraph C of Article 1812
of this Code. These findings need not include reasons for judgment.

Louisiana Code of Civil Procedure article 1812(C) enumerates, in pertinent part:

In cases to recover damages for injury, death, or loss, the court at the request of
any party shall submit to the jury special written questions inquiring as to:

(1) Whether a party from whom damages are claimed, or the person for whom
such party is legally responsible, was at fault, and, if so:

(a) Whether such fault was a legal cause of the damages, and, if so:

(b) The degree of such fault, expressed in percentage.

* * *

(3) If appropriate, whether there was negligence attributable to any party claiming
damages, and, if so:

(a) Whether such negligence was a legal cause of the damages, and, if so:

(b) The degree of such negligence, expressed in percentage.

(4) The total amount of special damages and the total amount of general damages
sustained as a result of the injury, death, or loss, expressed in dollars, and, if
appropriate, the total amount of exemplary damages to be awarded.
6 Specifically, PPG asserted the following assignments of error:

1. The [district court] erred in awarding Couvillion damages for the
subcontractors’ claims.

5

Damages; (3) Additional Compensation; and (4) Attorney’s Fees and Interest

Pursuant to La. R.S. 38:2191.

PPG’s Daubert motion

This Court has previously explained that “[u]nder the standards set forth in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125

L.Ed.2d 469 (1993),[ ] and adopted by our Louisiana Supreme Court in State v.

Foret, 628 So.2d 1116, 1122 (La. 1993),[ ] the [district] court is required to

perform a ‘gatekeeping’ function to ‘ensure that any and all scientific testimony or

evidence admitted is not only relevant, but reliable.’” Leininger v. Heaney, 23-

0574, p. 7 (La. App. 4 Cir. 8/15/24), 414 So.3d 535, 542 (quoting Allen v. Eagle

Inc., 22-0386, 0387, p. 9 (La. App. 4 Cir. 8/10/22), 346 So.3d 808, 814-15).

Daubert set forth some non-exclusive factors for courts to consider in
making a determination as to whether an expert’s testimony was
relevant and reliable. Those factors include but are not limited to: (1)
the testability of the technique or scientific theory; (2) whether the
theory or technique has been subjected to peer review and publication;
(3) the known or potential rate of error; and (4) whether the technique
had gained [“]general acceptance.[”]

2. The [district court] erred in awarding Couvillion delay damages for home
office overhead.

3. The [district court] erred in awarding Couvillion attorneys’ fees and legal
interest under La. R.S. 38:2191.

4. The [district court] erred in awarding Couvillion additional compensation for
three “extra” mobilizations of its larger crane barge.

5. The [district court] erred in awarding Couvillion additional compensation for
“extra work for the larger crane.”

6. The [district court] erred in denying PPG’s Daubert motion to exclude the
testimony of Couvillion’s scheduling expert, Mr. Don Carlow.

7. The [district court] erred in finding that Couvillion was entitled to 278 days of
compensable delay damages and 43 days of non-compensable delays.

8. The [district court] erred in denying PPG’s claim for liquidated damages.

6

Harvey v. Hamby, 23-0084, p. 9 (La. App. 4 Cir. 10/4/23), 376 So.3d 225, 234

(quoting Hooper v. Travelers Ins. Co., 10-1685, 11-0220, p. 4 (La. App. 4 Cir.

9/28/11), 74 So.3d 1202, 1204-05).

“An appellate court reviews a decision to allow or exclude expert testimony

under an abuse of discretion standard.” Manuel v. Fat Catz Music Club, Inc., 22-

0288, p. 9 (La. App. 4 Cir. 8/3/22), 366 So.3d 264, 270 (citing Donaldson v.

Hudson Ins. Co., 12-1013, p. 6 (La. App. 4 Cir. 4/10/13), 116 So.3d 46, 51).

“Although this standard is highly deferential, when the district court’s conclusion

is based on an erroneous view of the law or reached in a capricious or arbitrary

manner, it is an abuse of discretion.” Id. (citing Schwarzenberger v. La. State

Univ. Health Scis. Ctr. New Orleans, 17-0024, p. 7 (La. App. 4 Cir. 8/24/17), 226

So.3d 1200, 1205-06).

Nevertheless, it is well-settled law that “[q]uestions of credibility are for the

trier of fact, even when applied to expert testimony.” Johnston v. Vincent, 21-

01196, p. 29 (La. 2/1/23), 359 So.3d 896, 916 (citing Ryan v. Zurich Am. Ins. Co.,

07-2312, p. 12 (La. 7/1/08), 988 So.2d 214, 222). “The trier of fact may accept or

reject any expert’s opinion, in whole or in part, and may substitute its common

sense and judgment for the expert’s opinion when the substitution appears

warranted on the record as a whole.” Id. Thus, as this Court outlined in

Lowenburg v. Sewerage & Water Bd. of New Orleans:

When presented with testimony from numerous expert witnesses,
[t]he law is well-settled [sic] that where the testimony of expert
witnesses differs, the trier of fact has great discretion in determining
the credibility of the evidence, and a finding of fact in this regard will
not be overturned unless clearly wrong. The assessment of credibility
of competing expert witnesses is best left to the trier of fact, who has
the opportunity to observe the respective demeanor of the witnesses.
Where there is evidence before the trier of fact which, upon its
reasonable evaluation as to credibility, furnishes a reasonable basis for

7

the trial court’s finding, it should not be disturbed in the absence of
manifest error.

19-0524, p. 27 (La. App. 4 Cir. 7/29/20), 387 So.3d 548, 571-72 (quoting Koepp v.

Sea-Land Serv., Inc., 93-2562, p. 12 (La. App. 4 Cir. 11/17/94), 645 So.2d 1269,

1276) (internal citations omitted).7

PPG argues the district court erred by: (1) admitting Mr. Carlow’s testimony

because his analysis was inherently flawed and unreliable; and (2) accepting Mr.

Carlow’s methodology as credible based on his report and testimony.

Accordingly, this Court is required to perform a two-part inquiry to determine

whether the district court abused its discretion when it allowed Mr. Carlow to

testify or was manifestly erroneous when it relied on his methodology to render its

judgment.

First, as we previously relayed in this opinion, at the conclusion of the

Daubert hearing the district court denied PPG’s motion to exclude Mr. Carlow’s

expert report and testimony. Counsel for PPG failed to lodge a contemporaneous

objection at that time, did not traverse Mr. Carlow’s credentials when he was

tendered as an expert witness, and did not object to the district court accepting him

in that role. This Court addressed the analogous situation in Everhardt v. La. Dep’t

of Transp. & Dev., explaining that after the district court denied the appellant’s

motion in limine to strike an expert’s testimony and the appellant did not object to

the appellee tendering the plaintiff as an expert, the appellant effectively waived

any objections it might otherwise have had as to his expert qualifications or the

7 See also TKTMJ Sewerage & Water Bd. Of New Orleans (wherein this Court reiterated that

“[t]he law is well settled that where the testimony of expert witnesses differs, the trier of fact has
great, even vast, discretion in determining the credibility of the evidence, and a finding of fact in
this regard will not be overturned unless clearly wrong. Further, the assessment of credibility of
competing expert witnesses is best left to the trier of fact, who has the opportunity to observe the
respective demeanor of the witnesses”) 20-0154, pp. 5-6 (La. App. 4 Cir. 12/16/20), 366 So.3d
276, 283.

8

admissibility of his expert testimony. 07-0981, pp. 10-11 (La. App. 4 Cir.

2/20/08), 978 So.2d 1036, 1045-46. See La. C.E. art. 103(A)(1) (an error cannot

be predicated upon a ruling that admits evidence unless a timely objection appears

of record). Having failed to lodge a contemporaneous objection to Mr. Carlow’s

testimony at trial, we find that PPG has waived its right to raise that issue with this

Court.

Next, in Harvey v. Hamby, this Court emphasized that “there is a crucial

difference between questioning the methodology employed by an expert witness

and questioning the application of that methodology or the ultimate conclusions

derived from that application.” 23-0084, p. 10, 376 So.3d at 234. “Only a question

of the validity of the methodology employed brings Daubert into play.” Id.

(quoting Tadlock v. Taylor, 02-0712, p. 5 (La. App. 4 Cir. 9/24/03), 857 So.2d 20,

26).

In his report, Mr. Carlow described the approach he employed in order to

reach his conclusions as a “retrospective, observational, dynamic contemporaneous

delay analysis methodology,” and explained that he used various steps in his

analysis as it pertains to Method Implementation Protocols (“MIP”) 3.3 and 3.4 of

AACE8 International Recommended Practice 29R-03 Forensic Schedule Analysis

(the “RP”). It is PPG’s position that Mr. Carlow did not and could not properly

utilize the methodology laid out in those MIPs because there was insufficient data.

Moreover, PPG contends that Mr. Carlow misidentified the task that should have

been designated as the critical path.9 This misapplication of the RP and the critical

8 The Association for the Advancement of Civil Engineering.

9 See n. 10 for an explanation of “critical path.”

9

path, they argue, completely invalidates Mr. Carlow’s methodology; therefore, his

testimony should have been excluded. We disagree.

According to Section 1.1 of the RP, it was formulated “to provide a unifying

reference of basic technical principles and guidelines for the application of critical

path method (“CPM”) scheduling in forensic analysis.”10 However, there is also a

disqualifier, which provides that “[t]his RP is not intended to establish a standard

of practice, nor is it intended to be a prescriptive document applied without

exception.” Additionally, “a departure from the recommended protocols should

not automatically be treated as an error or deficiency as long as such departure is

based on conscious and sound application of schedule analysis principles.”

Furthermore, the writers “recognize[d] that the method(s) of analysis to be utilized

10 As it is explained in the Government Contract Guidebook:

Most of the planning and scheduling of construction projects—especially larger
ones—is conducted with the use of Critical Path Method (CPM) analysis. CPM is
a scheduling process in which the contractor identifies one or more “critical
paths”— that is, tasks that must be completed before work on other tasks can
proceed. CPM analysis frequently arises from use of commercially available
project management software. The “critical path” is the sequence of work on a
project that will take the longest time to complete. Delays that occur in the critical
path delay the entire project’s completion, whereas delays on noncritical paths do
not have this effect. CPM analysis plays a major role in the determination of the
government’s liability for delays. In the case of delays caused by both parties, if
the government's delay occurred on the project’s critical path and the contractor’s
delay was limited to noncritical path areas of the work, the delay will be
considered to be nonconcurrent and the contractor will be allowed to recover
under the “Suspension of Work” clause.

Simply put, under a CPM analysis, for any delay found on the critical path, a
corresponding delay to project completion will be found. CPM has assumed such
importance in determining liability in these cases that boards and courts will
likely deny recovery if a CPM analysis cannot be made, or will determine that a
contractor’s failure to produce its CPM schedule entitles the tribunal to infer that
the schedule would be adverse to contractor’s delay claim. In one case, the Court
of Federal Claims stated that it “cannot rely on the assertions of a contractor, not
supported by critical path analysis of the project, to award critical path delay
costs.”

STEVEN W. FELDMAN, GOVERNMENT CONTRACT GUIDEBOOK § 29:10 (4th ed., October 2025
update) (citations omitted).

10

in a given situation, and the manner in which a particular methodology might be

implemented, are dependent upon the contract, the facts, applicable law,

availability and quality of contemporaneous project documentation, and other

circumstances particular to a given situation.”

At trial, one of PPG’s own expert witnesses, Mr. Carbo—who was engaged

to analyze the methods of analysis utilized by Mr. Carlow and PPG’s other expert

witness, Mr. Lachin—testified as to the highly subjective nature of the field of

forensic scheduling analysis. This is echoed by the RP, where it is emphasized that

“[f]orensic scheduling analysis . . . is both a science and an art. As such it . . .

usually requires many subjective decisions.” He further testified that, after

reviewing both expert reports, he found flaws in each. As a result, given the highly

subjective nature of the field and that the assessment of credibility of competing

expert witnesses is best left to the trier of fact, we cannot say that the district court

was manifestly erroneous or that it did not have a reasonable basis to find Mr.

Carlow’s testimony and report to be credible and rely upon those to render a

decision. This argument is unpersuasive.

Damages

A. Subcontractors’ Delay Damages

PPG argues that the district court erred when it awarded Couvillion delay

damages for its subcontractors, Faulk & Meek and Chain Electric, because any

claims they might have had against Couvillion had prescribed. As PPG points out,

Faulk & Meek sent a demand letter to Couvillion for delay damages on November

5, 2013, while Chain Electric made their demand on Couvillion the following day

on November 6, 2013. The record does not reflect that either of the subcontractors

11

have filed petitions to pursue their claims. Citing to La. C.C. arts. 344711 and

349912, PPG contends that by the date of the trial in April of 2024, any claims that

the subcontractors might have had against Couvillion were prescribed after the

passage of ten years. Couvillion counters that when it filed suit against PPG,

Couvillion acknowledged that the subcontractors were owed for delay damages

and that, pursuant to La. C.C. art. 346413, that acknowledgment interrupted

prescription. In opposition to Couvillion’s reliance on La. C.C. art. 3464, PPG

offers the case of Lima v. Schmidt, 595 So.2d 624, 631 (La. 1992) and La. C.C.

Art. 3464, Comment (f) of the 1982 Revision Comments for the premise that even

if filing the lawsuit could be considered an acknowledgment, “prescription

recommenc[es] anew from the date of interruption . . . .”

In Roy Anderson Corp. v. 225 Baronne Complex, L.L.C., this Court

explained that a contractor may include “pass-through” claims in its petition for

damages against an owner—those types of claims “have been described as damage

claims that subcontractors pass through to the contractor to prosecute an action

against the project owner to recover those damages.” 17-1005, p. 3 (La. App. 4 Cir.

7/11/18), 251 So.3d 493, 497 n. 6 (citing Pass-Through Claims in Construction

Litigation (May 29, 2007), https://www.internationallawoffice.com/). Also,

11 Louisiana Civil Code article 3447 provides:

Liberative prescription is a mode of barring of actions as a result of inaction for a
period of time.
12 Louisiana Civil Code article 3499 directs:

Unless otherwise provided by legislation, a personal action is subject to a
liberative prescription of ten years.
13 Louisiana Civil Code article 346 instructs:

Prescription is interrupted when one acknowledges the right of the person against
whom he had commenced to prescribe.

12

“[W]hen several parties share a single cause of action . . . , suit by one interrupts

prescription as to all.” Hosp. Mgmt. Servs., LLC v. Axis Surplus Ins. Co., 24-0137,

p. 5 (La. App. 4 Cir. 9/16/24), 400 So.3d 236, 240 (alteration in original) (quoting

Louviere v. Shell Oil Co., 440 So.2d 93, 96 (La. 1983). “In the context of [an

exception of prescription], a ‘cause of action’ is defined as the ‘operative facts

which give rise to the plaintiff'’s right to judicially assert the action against the

defendant.’” Id. (quoting Everything on Wheels Subaru, Inc. v. Subaru S., Inc.,

616 So.2d 1234, 1238 (La. 1993)). “[P]rescriptions affecting that cause of action

are interrupted by the suit and remain continuously interrupted as long as the suit is

pending.” Louviere, 440 So.2d at 98. Accordingly, we find Faulk & Meek’s and

Chain Electric’s claims are not prescribed.

B. Delay Damages for Home Office Overhead

At trial, Mr. Carlow testified that he used the jurisprudentially-created

Eichleay Doctrine14 to calculate Couvillion’s delay damages incurred for its home

office overhead. PPG avers that the Eichleay Doctrine is inapplicable because

Eichleay requires that there be a full stoppage of work by the owner, which was

not the case here. Both parties cite the Court of Federal Claims case, JMR Constr.

Corp. v. United States 117 Fed. Cl. 436 (2014) for its discussion of Eichleay. The

JMR court explained that “[t]he term ‘home office overhead’ refers to the general

administration costs of running a business, such as accounting and payroll services,

general insurance, salaries of upper-level management, heat, electricity, taxes, and

depreciation.” Id. at 442 (citation omitted). “These are indirect costs, ‘expended

for the benefit of the whole business, [and thus] by their nature cannot be attributed

14 Appeal of Eichleay Corp., ASBCA No. 5183, 60–2 BCA 2688, 1960 WL 538 (1960).

13

or charged to any particular contract.’” Id. (quoting Nicon, Inc. v. United States,

331 F.3d 878, 882 (Fed.Cir.2003) (alteration in original).

The JMR court went on to expound that “[c]ontractors typically recoup these

indirect costs by allocating them to individual contracts in proportion to those

contracts’ direct costs.” Id. (first citing Charles G. Williams Constr., Inc. v. White,

271 F.3d 1055, 1057–58 (Fed.Cir.2001); then citing RALPH C. NASH & JOHN

CIBINIC, UNABSORBED OVERHEAD AND THE “EICHLEAY” FORMULA:

RAMPANT CONFUSION, 16 No. 5 Nash & Cibinic Report ¶ 23 (May 2002)). “But,

in the event of a government-caused delay or suspension of work, ‘the stream of

direct costs against which to assess a percentage [of home office overhead]’ is

decreased.” Id. (quoting C.B.C. Enterprises, Inc. v. United States, 978 F.2d 669,

671 (Fed.Cir.1992). Further, the Federal Circuit “has held that the so-called

‘Eichleay’ formula is the sole method through which contractors are able to

recover unabsorbed home office overhead,” and that “[t]he Eichleay formula

requires that contractors satisfy several ‘strict prerequisites.’” Id. (citations

omitted).

PPG posits that these strict prerequisites demand that in order to recover

delay damages for home office overhead there must be a complete shutdown of all

work activities. To the contrary, Couvillion directs our attention to the JMR

court’s pronouncement that “[t]he Eichleay formula does not ‘require that the

contractor’s work force be idle.’” Id. at 443 (quoting Interstate Gen. Gov’t

Contractors, Inc. v. West, 12 F.3d 1053, 1057 (Fed.Cir.1993). “It is sufficient, for

purposes of establishing standby, if a contractor can demonstrate that work was

‘stopped or significantly slowed.’” Id. (quoting P.J. Dick Inc., 324 F.3d 1384,

1372–73 (Fed.Cir.2003)).

14

Nevertheless, PPG suggests that Louisiana has adopted the strict

requirements of the Eichleay Doctrine by way of the case of Gilchrist Const. Co.,

LLC v. State, Dept. of Transp. and Dev., 13-2101 (La. App. 1 Cir. 3/9/15), 166

So.3d 1045. The Gilchrist court analyzed the Eichleay doctrine and concluded that

a complete work stoppage was necessary for a claimant to be awarded damages for

home office overhead. The court noted that “while the Eichleay formula is

basically a jurisprudential doctrine emanating from the federal courts that has

seeped, to a slight degree, into our state court system for adoption, we observe that

even use of the formula by our courts has been consistent with the prerequisites

previously outlined.” Id. at pp. 31-32, 166 So.3d at 1065. However, our research

into the Louisiana jurisprudence related to the Eichleay doctrine yielded only one

other case, which was decided by this Court in Harbor Const. Co., Inc. v. Bd. of

Supervisors of La. State Univ. & Agric. & Mech. Coll., 10-1663 (La. App. 4 Cir.

5/12/11) 69 So.3d 498. In that case, although this Court briefly outlined the

Eichleay Doctrine, the Harbor Court neither approved nor repudiated the doctrine;

rather, after considering the testimony of the witnesses and reviewing the record,

this Court found that the district did not abuse its “much discretion” in awarding

overhead costs. Id. at pp. 19-22, 69 So.3d at 509-10. We find the same is true in

this case.15 This argument is unpersuasive.

C. Liquidated Damages

15 Additionally, “we note that ‘the decisions of other circuits are not binding on this Court and

are persuasive authority only.’” Sebble on Behalf of Estate of Brown v. St. Luke’s #2, LLC, 22-
0620, p. 12 (La. App. 4 Cir. 3/6/23), 358 So.3d 1030, 1038 (quoting Shelton v. Pavon, 16-0758,
p. 8 (La. App. 4 Cir. 2/15/17), 212 So.3d 603, 609). See also Mills Electric, Inc. v. GEC, LLC,
2019 WL 11718393, *12-13 (V.I.) (wherein that court discussed that, at the time of its writing,
only 13 states had cases dealing with Eichleay and that not all Federal circuits had accepted the
doctrine. As of our writing, fourteen states and the Commonwealth of Puerto Rico have cases
dealing with Eichleay).

15

In its appellate brief, PPG asserted that it is owed $324,000.00 in liquidated

damages; however, in its reply brief, PPG adjusts that claim to $204,285.96. It

arrives at that calculation by subtracting the uncontested claims for the utility

trough cover, the fuel charge and the emergency mobilization and remobilization

due to Hurricane Isaac. Louisiana Revised Statutes 38:2211(A)(7) defines

liquidated damages as:

[A] fixed sum of damages stipulated in a public works construction
contract that are intended to compensate a public entity as a result of a
delay in performance by the contractor and may be assessed for a
project not being substantially complete within the time provided for
by the public works contract.

To justify its claim, PPG relies on the argument it previously offered in relation to

what it considers the inherently flawed analysis of Mr. Carlow. Having found that

that there was a reasonable basis for the district court to rely on Mr. Carlow’s

analysis, we find that this argument is unpersuasive.

Additional expenses

There are two arguments presented related to the district court’s awards of

additional expenses for Couvillion’s use of a larger crane barge instead of an

originally planned smaller crane barge, and three remobilizations of the larger

crane.

A. Use of the larger crane

PPG argues that, based on the original plans for the Project, Couvillion

always knew it would need a larger crane. Couvillion counters that PPG did not

offer any witnesses at trial—expert or otherwise—to refute Mr. Couvillion’s

testimony about the need for the larger crane. We find Couvillion’s position to be

more persuasive. Our review of the trial transcript divulges that Mr. Couvillion

described in great detail the need for the larger crane, which he explained was the

16

result of the Partial SWO. Weighing this testimony against the record and PPG’s

contentions, the district court found Mr. Couvillion’s explanation to be the more

credible one.

As this Court has consistently held, “Louisiana jurisprudence is clear that

‘[w]hen findings are based on determinations regarding the credibility of

witnesses, the manifest error-clearly wrong standard demands great deference to

the trier of fact’s findings; for only the factfinder can be aware of the variations in

demeanor and tone of voice that bear so heavily on the listener’s understanding and

belief in what is said.” Kaster, Lynch, Farrar & Ball, LLP v. Meeks & Associates,

LLC, 25-0087, p. 14 (La. App. 4 Cir. 8/8/25), ___ So.3d ___, ____, 2025 WL

2301229, * 6 (quoting Spears v. Hall, 24-0075, p. 14 (La. App. 4 Cir. 1/13/25),

414 So.3d 620, 630. “The law is equally clear that when applying the manifest

error standard of review . . . an appellate court ‘may not simply substitute its own

view of the evidence for the [district] court’s view, nor may it disturb the [district]

court’s finding of fact so long as it is reasonable.’” Id. (quoting Spears, 24-0075,

p. 14, 414 So.3d at 630). Finding the district court’s determination was reasonable,

we conclude the district court did not err.

B. Remobilizations

As PPG explains in its appellate brief, mobilization costs are the costs of

moving the contractor’s men, materials and equipment to the project site to

perform the work. It argues that the extra mobilizations were unnecessary because

Couvillion chose to use the larger crane on other jobs rather than leaving it on site

on standby. Mr. Couvillion countered this assertion when he testified that his

decision to relocate the larger crane actually saved PPG tens of thousands of

dollars because of the higher daily cost to leave it onsite unused. The district court

17

found Mr. Couvillion’s account to be compelling and credible and awarded

Couvillion the cost of three mobilizations. We find that this determination by the

district court was not unreasonable.

Additionally, PPG avers that the district court erred when it awarded

Couvillion one of the remobilizations of the larger crane in addition to the

contractually-agreed-upon cost for the mobilization and demobilization related to

Hurricane Isaac. PPG argues that this amounts to a double payment. We disagree.

Our review of Mr. Couvillion’s testimony and the record indicates that the

Contract contemplated the use of the smaller crane for the Project. We find that

the award for the additional cost of mobilizing and demobilizing the larger crane is

neither a double payment nor unreasonable.

Finally, as it relates to the award for the emergency mobilization and

demobilization due to Hurricane Isaac, we find that the district court erred when it

awarded Couvillion $82,300.00. Our review of the pertinent documents indicates

that the agreed-upon reimbursement was $82,320.00. Accordingly, we amend the

district court’s judgment to reflect that amount.

Attorney’s fees and interest pursuant to La. R.S. 38:2191

PPG objects to the district court’s award of attorney’s fees and legal interest

pursuant to La. R.S. 38:2191.16 PPG insists that § 2191 was never intended to

apply to judgments on disputed claims awarding additional compensation beyond

the appropriated funding. For support, PPG cites to Wallace C. Drennan, Inc. v.

Cantrell, 23-0193 (La. App. 4 Cir. 10/25/23), 376 So.3d 969, 974, which, as noted

by Couvillion in its brief to this Court, does not espouse such a position. In its

16 Discussed more fully, infra.

18

reply brief to this Court, PPG offers two other cases for the propositions that: (1)

relief should be denied a contractor when there was no evidence that a public entity

has not appropriated funds for payment of a contract; and (2) a mandamus cannot

be used to compel a public official to exercise discretionary authority.17 However,

as we noted earlier in this opinion and PPG recognized in its reply brief, although

Couvillion initially petitioned for mandamus relief, in its First Supplemental and

Amended Petition Couvillion amended its action against PPG to an ordinary

proceeding. As a result, we find PPG’s reliance on La. R.S. 38:2191(D) and the

cited jurisprudence to be misplaced.

Louisiana Revised Statutes 38:2191 was amended and reenacted relative

to the payment of public contracts by Acts 1991, No. 1044, § 1. It was further

amended in 2011 by Acts 2011, No. 184, § 1, and that version remained in effect

until the statute was amended again in 2014. At that time, it provided:

A. All public entities shall promptly pay all obligations arising under
public contracts when the obligations become due and payable under
the contract. All progressive stage payments and final payments shall
be paid when they respectively become due and payable under the
contract.

B. Any public entity failing to make any final payments after formal
final acceptance and within forty-five days following receipt of a clear
lien certificate by the public entity shall be liable for reasonable
attorney fees.

C. The provisions of this Section shall not be subject to waiver by
contract.

D. Any public entity failing to make any progressive stage payments
arbitrarily or without reasonable cause, or any final payment when
due as provided in this Section, shall be subject to mandamus to
compel the payment of the sums due under the contract up to the

17 See Foster Const., Inc. v. Town of Richwood, 48,171, p. 8 (La. App. 2 Cir. 6/26/13), 117 So.3d

607, 610; see also St. Bernard Port, Harbor and Terminal District v. Guy Hopkins Const. Co.,
16-0907, p. 14 (La. App. 4 Cir. 4/5/17), 220 So.3d 6, 15.

19

amount of the appropriation made for the award and execution of the
contract.

It was not until a 2018 amendment via Acts 2018, No. 566, § 1 that any provision

for interest was included in the statute. That amendment divided paragraph B into

two parts, which then appeared as (additions in bold):

B. (1) Any public entity failing to make any progressive stage
payment within forty-five days following receipt of a certified request
for payment by the public entity without reasonable cause shall be
liable for reasonable attorney fees and interest charged at one-half
percent accumulated daily, not to exceed fifteen percent. Any
public entity failing to make any final payments after formal final
acceptance and within forty-five days following receipt of a clear lien
certificate by the public entity shall be liable for reasonable attorney
fees and interest charged at one-half percent accumulated daily,
not to exceed fifteen percent.

(2) Any interest received by the contractor pursuant to Paragraph
(1) of this Subsection, shall be disbursed on a prorated basis
among the contractor and subcontractors, each receiving a
prorated portion based on the principal amount due within ten
business days of receipt of the interest.

This remains the current form of paragraph B.

Louisiana Civil Code article 6 instructs that “[i]n the absence of contrary

legislative expression, substantive laws apply prospectively only. Procedural and

interpretative laws apply both prospectively and retroactively, unless there is a

legislative expression to the contrary.” This Court described the difference in

Home Bank v. Marcello:

Procedural laws prescribe a method for enforcing a previously
existing substantive right and relate to the form of the proceeding or
the operation of the laws. Substantive laws either establish new rules,
rights, and duties or change existing ones. Interpretive laws, on the
other hand, do not create new rules, but merely establish the meaning
that the interpretive statute had from the time of its initial enactment.
It is the original statute, not the interpretive one, that establishes the
rights and duties.

20

17-0281, p. 8 (La. App. 4 Cir. 10/18/17), 316 So.3d 1161, 1165-66. Our review of

Acts 2018, No. 566, § 1 reveals that the legislature was silent as to its intent for the

amendment to apply retroactively and because the amended version of La. R.S.

38:2191(B) created new rights and duties, we will apply the law in effect at the

time the claim arose.

In its appellate brief, Couvillion relies on the current version of La. R.S.

38:2191, highlighting paragraph A’s mandate that public entities are required to

pay all obligations arising under the contract when those obligations become due

and payable under the contract. Couvillion then relies on paragraph B for its claim

that it is entitled to attorney fees and interest. We agree in part and disagree in

part.

First, we agree that the delay damages and additional expenses are

obligations arising under the contract. La. R.S. 38:2216(H) mandates:

Any provision contained in a public contract which purports to
waive, release, or extinguish the rights of a contractor to recover cost
of damages, or obtain equitable adjustment, for delays in performing
such contract, if such delay is caused in whole, or in part, by acts or
omissions within the control of the contracting public entity or
persons acting on behalf thereof, is against public policy and is void
or unenforceable. When a contract contains a provision which is void
and unenforceable under this Subsection, that provision shall be
severed from the other provisions of the contract and the fact that the
provision is void and unenforceable shall not affect the other
provisions of the contract.

Consequently, implicit in any public contract is a provision allowing for delay

damages. Also, as previously discussed, Mr. Couvillion testified that additional

expenses incurred for the use and remobilizations of the larger crane were a direct

result of the delay caused by the Partial SWO. Considering the circumstances and

record as a whole, including the memo issued by PEC that recommended PPG pay

delay damages to Couvillion, we do not find that the district court was

21

unreasonable in reaching the conclusion that PPG was without cause to withhold

payment on those damages after they came due. Because the statute in effect at the

time provided for attorney’s fees, we find the district court did not err when it

awarded those fees to Couvillion.

Next, as we discussed, the version of La. R.S. 38:2191 applicable to this

case did not include the very specific process of calculating interest awards arising

under the statute. This does not preclude an award of interest. Couvillion’s First

Supplemental and Amended Petition specifically prayed for legal interest from the

date of judicial demand. Pursuant to La. C.C.P. art. 1921, “[t]he court shall award

interest in the judgment as prayed for or as provided by law.” Louisiana Civil

Code article 2000 instructs, in pertinent part:

When the object of the performance is a sum of money, damages for
delay in performance are measured by the interest on that sum from
the time it is due, at the rate agreed by the parties or, in the absence of
agreement, at the rate of legal interest as fixed by [La.] R.S. 9:3500.

“An obligor is liable for the damages caused by his failure to perform a

conventional obligation” when “[a] failure to perform results from . . . [a] delay in

performance.” La. C.C. art. 1994. “In a contractual situation, interest is

recoverable from the time the debt becomes due unless otherwise stipulated.”

Quality Design & Const., Inc. v. City of Gonzalez ex rel. Berthelot, 06-2211, p. 11

(La. App. 1 Cir. 11/28/07), 977 So.2d 87, 94 (citing La. C.C. art. 2000). “The time

the debt becomes due is the date of substantial completion.” Id. (citing Ortego v.

Dupont, 611 So.2d 792, 795–796 (La. App. 3 Cir.1992)). Therefore, we conclude

that Couvillion is entitled to judicial interest from the date of substantial

completion, and hereby amend the district court’s April 15, 2025 judgment to

reflect that holding.

22

CONCLUSION

For the foregoing reasons we amend the district court’s April 15, 2025

judgment to reflect an award of $82,320.00 for the emergency mobilization and

demobilization for Hurricane Isaac; we amend the award of interest to commence

at the date of substantial completion of the Project; and we affirm the remainder of

the district court’s judgment.

AMENDED
AFFIRMED AS AMENDED

23