Written by: Brian S. Schaps

Architects and engineers should be aware of a peremption statute that may bar untimely claims against them.   

 All professional architects, landscape architects, engineers, surveyors, and their associated interns, as well as interior designers and real estate developers using development plans certified by professional engineers or architects – all licensed in Louisiana -- should be aware of the protection against untimely claims against them afforded by the five-year period of peremption established in La. R.S. 9:5607(A).  

 A period of peremption, under Louisiana law, is the period of time the Legislature has established for the existence of a cause of action, or claim. against certain classes of professionals for damages caused by their professional negligence or breach of contract. Once the period of time commences, it cannot be interrupted, suspended, or renounced. Once it expires, any cause of action against the professional is extinguished. That is, the cause of action, or claim, against that professional simply no longer exists and cannot be revived, even by adding the professional to a suit that is timely brought against other parties arising out of the same project.  

 The critical question then is when does the period of peremption begin or “commence”? 

 For the professionals enumerated in La. R.S. 9:5607(A), the period of peremption can begin or “commence” from three different points in time:   

(1) the date of registry of the owner’s acceptance of the work in the parish mortgage office;

(2) the date of the owner’s occupancy or possession of the project; or 

(3) the date of completion of the services that (a) are not preparatory to construction or (b) if preparatory, the services do not include an inspection of the work. 

In Conti Enterprises, Inc. v. Providence/GSE Associates, LLC, rendered on October 30, 2023, the First Circuit interpreted and applied the third point in time for the commencement of peremption. 

The Court held that the period of peremption applicable to the suit by St. Tammany Parish Consolidated Government (the “Parish”) against Hartmann Engineering, Inc., its professional engineer, commenced on the date when Hartmann had completed its engineering services and delivered its final stamped revised plans and specifications in September 2013. The peremption period did not commence on the later date in June 2017, when the Parish recorded its acceptance of the construction work. 

Hartmann was the design engineer of record that had prepared the plans and specifications for a road construction project called the “Hollywood Road Widening Project,” sponsored and partially funded by the DOTD. The undisputed facts showed that Hartmann had no contractual obligation to provide, and did not in fact provide, any inspection of the work after it was let for bid.  

Even though the successful contractor for the Project timely sued the Parish and other entities for alleged cost overruns, delay damages, and extras, allegedly caused by errors in the design and construction administration, the First Circuit held that the Parish’s third-party demand against Hartmann filed in May 2020 was untimely, as all claims against Hartmann had by then expired – that is perempted – in September 2018, five years after Hartmann had delivered its stamped plans.  

The Court rejected the Parish’ argument that the peremption period against Hartmann commenced on June 23, 2017, the acceptance recordation date, because Hartmann’s contract did not include contract administration that would have included any inspection services. 

The First Circuit also rejected the Parish’s argument that Hartmann’s responses in 2014 to emails from the DOTD Engineer and a bidding contractor concerning questions about the bid or that later furnishing a contractor a “copy of its native design files” as a “matter of courtesy” constituted additional “services’ under Hartmann’s contract that would have extended the peremption period beyond September, 2016. The Court noted that in both situations Hartmann received no additional compensation after final payment in 2013. 

Finally, the Court rejected the Parish’s argument that its later retention of one of Hartmann’s engineers to testify as an expert in an expropriation suit brought by a property owner constituted either a “design service” or “inspection of the work” under its original contract that would render La. R.S. 9:5607(A)(3) in applicable.  

Lesson?  Be mindful of the time periods when the services you render under your contracts are completed. The commencement of the peremption period may begin before the completion of the project.