CONSTRUCTION LAW – In Lamar Contractors, Inc. v. Kacco, Inc., 14-1360 (La. App. 4 Cir. 7/1/15), 2015 WL 403181, Lamar, a general contractor, sued its subcontractor, Kacco, Inc., for an alleged breach of contract.  In particular, Lamar asserted that the sub-contractor had failed to adequately and timely supply necessary building materials to perform framing and drywall work in connection with the YMCA facility in Plaquemines Parish.

At trial, evidence showed that Kacco’s material supplier had frozen its account over payment issues. Needing materials to complete the work, Kacco requested that Lamar issue a joint check to Kacco and the supplier.  Lamar agreed to issue the joint check, but only if Kacco agreed to a corresponding 10% “back charge” for the cost of the materials purchased.  Kacco refused. Therefore, despite competent work, the subcontractor’s contract was terminated for a failure to obtain adequate supplies as required by contract.

The trial court identified $72,350.00 in actual damages caused to the general contractor as the result of the subcontractor’s default.  However, the award was reduced by 2/3rds due to Lamar’s “contributory negligence.”

On appeal, Lamar asserted that the trial court erred in reducing the damages based upon contributory negligence, arguing that contributory negligence “consists of a civil wrong of negligence in tort or delictual law in Louisiana.”  Lamar therefore contended that only the breach of a duty imposed by law, not by contract, would have supported an assessment of fault against it.

Lamar’s argument was rejected by the Appellate Court which cited to La. C.C. art 2003, which provides in pertinent part:

“If the obligee’s negligence contributes to the obligor’s failure to perform, the damages are reduced in proportion to that negligence.”

Citing to Lamar’s refusal to assist in funding the necessary supplies and late payment of another invoice, the Appellate Court found that adequate evidence existed in support of the allocation of fault to Lamar. While the Appellate Court slightly increased the amount of damages awarded to Lamar, it upheld the 2/3rds assessment of fault.