J. Caldarera & Company, Inc. Versus Triumph Construction Company, LLC. and Atain Specialty Insurance Company
This text of J. Caldarera & Company, Inc. Versus Triumph Construction Company, LLC. and Atain Specialty Insurance Company (J. Caldarera & Company, Inc. Versus Triumph Construction Company, LLC. and Atain Specialty Insurance Company) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
J. CALDARERA & COMPANY, INC. NO. 24-C-451
VERSUS FIFTH CIRCUIT
TRIUMPH CONSTRUCTION COMPANY, COURT OF APPEAL LLC. AND ATAIN SPECIALTY INSURANCE COMPANY STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 70,409, DIVISION "B" HONORABLE NGHANA LEWIS, JUDGE PRESIDING
December 18, 2024
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst
REVERSED AND REMANDED; STAY ORDERED SJW SMC FHW COUNSEL FOR PLAINTIFF/RELATOR, J. CALDARERA & CO., INC. John W. Waters, Jr.
COUNSEL FOR DEFENDANT/RESPONDENT, TRIUMPH CONSTRUCTION COMPANY, LLC Gregory S. Webb WINDHORST, J.
Relator, J. Caldarera & Company, Inc., seeks review of the trial court’s denial
of its motion to compel arbitration. For the following reasons, we reverse the trial
court’s ruling, grant Caldarera’s motion to compel arbitration, order a stay, and
remand for further proceedings consistent with this disposition.
BACKGROUND
Caldarera contracted with the St. Tammany Parish School Board to construct
Fontainebleau Junior High School. On May 4, 2015, Caldarera and Triumph
Construction Co., LLC entered into a Subcontract Agreement relative to some of the
work for the project, including the furnishing of labor and other services necessary
for the construction and installation of concrete foundation and site pavement work.
A concrete pour was scheduled for Saturday, April 30, 2016, in advance of
on-coming inclement weather. In preparation for the concrete pour, Caldarera dug
and formed below grade trenches and arranged for the concrete delivery. Triumph’s
workers, however, did not appear for the scheduled concrete pour. Rain destroyed
the pre-dug trenches and caused cave-ins of earthen excavations. Triumph did not
return to the construction project.
On March 8, 2017, Caldarera filed a petition for damages, asserting breach of
contract and negligence claims, including failing to show up for the concrete pour.
Caldarera alleged Triumph’s caused it damages, including cost of overhead, cost of
project completion, cost to redo work and repair other parts of the project damaged
by Triumph, and cost of acceleration.
Since Caldarera filed the original petition in 2017, the parties have litigated
this case in the trial court by conducting discovery, engaging in motion practice, and
appellate review involving the dismissal of one defendant. Trial has been continued
multiple times. Because this case has been pending for seven years, recently, in July
24-C-451 1 2024, Caldarera filed a motion to compel arbitration based on a clause in the
Subcontractor Agreement. The relevant clause regarding dispute procedure states:
25.2 All matters in controversy between Contractor and Subcontractor arising out of or related to his Subcontract, or the performance or breach of thereof ... shall by decided by arbitration . . . OR litigated in court in the 40th JDC at the option of the Contractor ....
After a hearing on August 2, 2024, the trial court denied Caldarera’s motion
to compel arbitration. Caldarera seeks review of the denial of its motion to compel
arbitration.
LAW and ANALYSIS
Because the relevant facts are not in dispute, this case presents a question of
law subject to de novo review. FIA Card Services, N.A. v. Weaver, 10-1372 (La.
3/15/11), 62 So.3d 709, 712.
The Louisiana Legislature has indicated by statute that arbitration is favored.
La. R.S. 9:4201 states: A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. The United States Supreme Court has also long recognized and enforced a “liberal
federal policy favoring arbitration agreements.” Howsam v. Dean Witter Reynolds,
Inc., 537 U.S. 79, 83, 123 S. Ct. 588, 591, 154 L. Ed. 2d 491 (2002). The Louisiana
Supreme Court has held that even when the scope of an arbitration clause is fairly
debatable or reasonably in doubt, the court should construe the clause in favor of
arbitration. Aguillard v. Auction Mgmt. Corp., 04-2804 (La. 6/29/05), 908 So.2d 1,
18. The presumption is heavy and arbitration should not be denied unless it can be
said with positive assurance that an arbitration clause is not susceptible of an
interpretation that could cover the dispute at issue. Id.
24-C-451 2 According to La. R.S. 9:4202, when there is a valid arbitration clause, the trial
court “shall” stay the trial of the action until arbitration is had unless the applicant is
in default in proceeding with the arbitration. Specifically, La. R.S. 9:4202 states:
If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.
The Louisiana Supreme Court has held that La. R.S. 9:4202 allows a trial court to
ascertain only two basic facts before ordering arbitration: (1) whether there is a
dispute as to the making of the agreement and (2) whether a party has failed to
comply with the agreement. International River Center. v. Johns-Manville Sales
Corp., 02-3060 (La. 12/3/03), 861 So.2d 139, 140-42.
Louisiana courts have specifically held the arbitration statute does not allow
the trial court to determine waiver issues. Id. at 144; Bartley, Inc. v. Jefferson Par.
Sch. Bd., 302 So.2d 280, 283 (La. 1974); Nelson v. H20 Hair, Inc., 19-193 (La. App.
5 Cir. 5/22/19), 274 So.3d 747, 749 (issue of whether employer waived its right to
arbitration could only be addressed by arbitrator); Arkel Constructors, Inc. v.
Duplantier & Meric, Architects, L.L.C., 2006-1950 (La. App. 1 Cir. 7/25/07), 965
So.2d 455, 460 (the presumption is that the arbitrator should decide allegations of
waiver, delay, or a like defense to arbitrability).
Guided by jurisprudence from both the United States Supreme Court and the
Louisiana Supreme Court, we find the arbitration panel must decide the waiver issue
in this case. Howsam, 537 U.S. at 84, 123 S.Ct. at 592; International River Center,
861 So.2d at 144; Arkel Constructors, Inc, 965 So.2d at 460. We therefore reverse
the trial court’s ruling denying the motion to compel and grant that motion.
24-C-451 3 DECREE
For the foregoing reasons, we reverse the trial court’s ruling denying the
motion to compel arbitration, grant that motion, and order a stay of the trial court
proceedings until arbitration has been had in accordance with La. R.S. 9:4202. We
therefore remand this case to the trial court for disposition consistent with this
opinion.
REVERSED AND REMANDED; STAY ORDERED
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