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
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
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