The Louisiana Supreme Court ruled today in Daniel Bennett v. Demco Energy Services, et al., 2023-CC-01358 (La. 5/10/24), 2024 WL ***, a claim for defense and indemnity under a Master Services Agreement filed before a judicial finding of liability or loss is not premature. The Court explained “[w]e hold that a claim for indemnity raised during the pendency of the litigation and before a finding of liability is not premature….in light of our ruling today, to the extent any prior jurisprudence can be interpreted otherwise, we now clarify that such a claim for indemnity is not prohibited before a liability adjudication.” Bennett, 2023-CC-01358 (La. 5/10/24), 2024 WL ***, at *4-5.
The Court reversed the First Circuit Court of Appeal’s previous ruling which had granted an exception of prematurity and dismissed without prejudice a cross claim filed by Cox Communications, LLC against Cable Man, Inc. finding a cause of action for defense and indemnity was not ripe prior to a determination of damages owed and an actual loss sustained by an indemnitee. Bennett was remanded for further proceedings consistent with the opinion.
While there is a potential for an application for rehearing to be filed within fourteen days with the Louisiana Supreme Court, the Bennett ruling allowing the assertion of defense and indemnity before a finding of liability will have important implications on the timing of assertions of these claims in the context of construction litigation and beyond.
- Link to May 10, 2024 Ruling of Louisiana Supreme Court in 2023-CC-01358:
- Link to Reversed September 11, 2023 Ruling of Louisiana First Circuit Court of Appeal in 2023 CW 0581: