The Louisiana Supreme Court has again addressed what impact a new law can have upon activities which pre-date the law’s passage in Dana Johno v. John Doe, et. al., 2016-CA-0087 (La. 12/3/16). LSA-R.S. 9:2800.17 provides immunity to a state or political subdivision and its contractors who make operational decisions or conduct clean-up activities on the behalf of the state or political subdivision following a hurricane. In Dana, the plaintiff asserted that the immunities provided by LSA-R.S. 9:2800.17 should not be applied retroactively.
Plaintiff, Dana Johno, owned a house that was lifted and moved by the flood waters that occurred during Hurricane Katrina. Sometime after the hurricane, contractors for the state demolished the house. Plaintiff sued for property damage, and the defendant contractors claimed statutory immunity under LSA-R.S. 9:2800.17.
LSA-R.S. 9:2800.17 went into effect on June 15, 2006. The statute provides that the immunities it bestows are to be applied both prospectively and retroactively to August 29, 2005 – the date of Hurricane Katrina. Plaintiff’s house was destroyed prior to June 15, 2006. Plaintiff challenged the constitutionality of the “retroactivity clause” of the statute.
The Supreme Court agreed with Plaintiff. It held that the retroactivity clause stripped Plaintiff of his vested right for property damage against the state and its representatives. “When a party acquires a right to assert a cause of action prior to a change in the law, that right is a vested property right which is protected by due process. Thus, a cause of action, once accrued, cannot be divested by subsequent legislation.” Therefore, the Supreme Court found the retroactivity clause unconstitutional.