Hurricanes and Storms: Defending Claims Under the Louisiana NHWA
Hurricanes, tropical storms, and other severe weather events that makes landfall in Louisiana often leave behind a swath of damaged and destroyed homes, businesses, and buildings. After the storms, the state inevitably sees a massive increase in reconstruction efforts and a corresponding increase in lawsuits claiming breach of construction warranties and construction defects. The uptick in litigation is twofold – litigation with respect to homes damaged by the most recent hurricane/storm and litigation potentially to be started in the future in the two-to-seven-year time frame for homes that must be rebuilt. After a “new” home is built, the time periods restart for the one-, two- and five-year warranty periods and the preemption periods.
The exclusive remedy for construction and warranty claims related to new residential homes is provided by the Louisiana New Home Warranty Act, La. R.S. 9:3141 et. seq. (“NHWA”).
What follows is a discussion of various defenses that can be used with respect to NHWA lawsuits.
Statutes of Limitation and Preemption Periods
As with defending many lawsuits, among the first issues to consider are statutes of limitation. Depending on the claimed defect, the NHWA has three statutes of limitations:
- One year for “any defects”
- Two years for “the plumbing, electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment …”
- Five years for ensuring the home is “free from major structural defect”
These warranties are with respect to construction, materials, and compliance with building codes and standards. Additionally, a lawsuit alleging breach of warranty under the NHWA is subject to a peremptive period of 30 days after the expiration of the time periods listed above. See La. R.S. 9:3146.
Plaintiffs often try and shoe-horn the claimed defects into the five-year category. That is difficult since the statute specifically defines “major structural defect” as related to load-bearing components like girders, beams, lintels, and walls. A good example is Shields v. Alvin R. Savoie & Assoc., 214 So. 3d 27 (La. App. 1st Cir. 2017). A fire, which originated in an outdoor fireplace on the patio, destroyed the plaintiffs’ house. The plaintiffs’ house was completed in September 2006 and the fire occurred in January 2011. Plaintiffs, by their insurance company, tried to claim breach of warranty under all three categories listed in the NHWA. The efforts did not succeed as the court stated that there was no evidence that a defect in an outdoor fireplace was a “major structural” defect and the plaintiffs were well outside the limitations and preemption periods for the other two warranty categories.
The NHWA has an extensive list of exclusions under section 9:3144(4). Among the more important are the following:
- Any damage caused or made worse by the negligence, improper maintenance, or neglect of someone other than the builder
- Any change, alteration, or addition made by anyone other than the builder
- Any loss or damage which the owner has not taken timely action to minimize
- Normal wear and tear or normal deterioration
- Insect or mold damage
- Any loss or damage which arises while the home is being used primarily for a nonresidential purpose
- “Loss or damage resulting from war, accident, riot and civil commotion, water escape, falling objects, aircraft, vehicles, acts of God, lightning, windstorm, hail, flood, mudslide, earthquake, volcanic eruption, wind driven water, and changes in the level of the underground water table which are not reasonably foreseeable”
The last exclusion cited is the one that is obviously the most important for hurricane/storm-related lawsuits. If it can be shown that the storm was the cause of the damage, not the alleged defect in construction or materials, then the plaintiff will not prevail.
Failure to Give Notice
One more defense deserves to be highlighted. Under La. R.S. 9:3145, before suing for breach of warranty, a homeowner is required to “… give the builder written notice, by registered or certified mail, within one year after knowledge of the defect, advising him of all defects and giving the builder a reasonable opportunity to …” correct the defects.
This provision is extremely important as it serves as a prerequisite to filing ANY claim related to breach of warranty or construction defect with respect to a new home. As the Louisiana Supreme Court said in Carter v. Duhe, 921 So.2d 963, 968 (La. 2006), when a homeowner fails to give notice, “… not only is the owner precluded from recovery under the NHWA, he is also precluded from any theory of recovery because the NHWA provides the exclusive remedy between owners and builders of new homes.”
Contact An Experienced Louisiana Construction Law Attorney
If you are involved in a construction law dispute and need legal help or advice, you should reach out to an experienced Louisiana construction law attorney as soon as possible. Whether you are facing a contract dispute, breach, warranty or construction defect claims, a Louisiana construction law attorney can help you.
The author may be contacted at:
Kristin M. Lausten
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.