ELIZABETH MOLBERT v. KENKO BULKHEAD MARINE SVCS LLC ET AL (2026)

This matter arises out of the failure of a bulkhead built for Plaintiff Elizabeth Molbert by Defendant Kenko Bulkhead and Marine SVCS, LLC (Kenko). Plaintiff filed suit against Kenko, its owners, Kenneth Cooley and Glenn Beier, and Travelers Property Casualty Company of America (Travelers), Kenko's commercial general liability insurer. Following a jury trial, Kenko, Cooley, and Beier were found seventy-five percent (75%) at fault, and Plaintiff was found twenty-five percent (25%) at fault for the damages that resulted from the failure. Thereafter, all parties filed motions for judgment notwithstanding the verdict and/or motions for new trial. The trial court issued an amended judgment on August 7, 2025, dismissing all claims against Cooley and Beier in their individual capacities. The trial court denied all other requests for relief. Travelers, Kenko, and Plaintiff now appeal. For the following reasons, we affirm in part, reverse in part, and render judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff purchased her home on the west fork of the Calcasieu River in 2009 for $109,000.00. A few years later, she entered into an agreement with Kenko for the construction of a 130-foot wooden bulkhead. The bulkhead cost $32,500.00 and was completed in June 2016. The purpose of the bulkhead was to protect Plaintiff's home from erosion caused by the moving water of the river.

The bulkhead failed during a May 2017 flood. Plaintiff made a claim under the standard flood policy issued to her by Liberty Mutual Insurance Company (Liberty Mutual). The appraiser determined her damages to be above the policy limits. Based on this appraisal, Liberty Mutual paid Plaintiff $165,000.00, which was the limits on the flood policy.

Plaintiff replaced the wooden bulkhead built by Kenko with an engineered, steel bulkhead that cost $167,058.59. Because Kenko tied the original wooden bulkhead to a house piling, Plaintiff's house shifted when the bulkhead failed. As a result, Plaintiff also spent $266,372.75 to repair her home.

On March 27, 2018, Plaintiff filed a Petition for Damages against Kenko and Travelers, alleging the defective construction of the bulkhead. On April 1, 2021, Plaintiff amended her petition to include Cooley and Beier as members and part owners of Kenko, alleging amongst other things that Cooley and Beier assured Plaintiff that they were licensed contractors and legally able to perform the work when they were not.

A jury trial was commenced on September 16, 2024, with a verdict rendered on September 26, 2024. The jury found Plaintiff twenty-five percent (25%) at fault for her damages, and Kenko, Cooley, and Beier were found to be seventy-five percent (75%) at fault. The following damages were awarded: (1) damage to the home in the amount of $266,372.75; (2) damage to the shoreline/bulkhead in the amount of $167,058.59; (3) loss of enjoyment of life in the amount of $2,500.00; and (4) mental anguish in the amount of $7,500.00. After accounting for her percentage of liability, Plaintiff was awarded $332,573.50.

Following the trial, all parties filed various post-trial motions. On April 9, 2025, the trial court issued written reasons on Travelers’ motion regarding insurance coverage and Plaintiff's motion to assess costs. The trial court rejected all of Travelers’ coverage arguments except one, finding that the policy barred coverage for the mental anguish award.

On July 8, 2025, the trial court issued written reasons on the remaining motions for judgment notwithstanding the verdict and/or for new trial, denying most of the arguments set forth in the motions. However, the trial court did grant Cooley and Beier's motion “as to the issues of protection of the LLC and limitation of liability as to those individual defendants as members and managers of Kenko Bulkhead & Marine SVCS, LLC, completely dismissing the Petition for Damages only as to those Defendants in their individual, personal[ ] capacities[.]” A judgment was rendered on August 7, 2025, as to these issues. Also on August 7, 2025, an amended judgment was signed which removed Cooley and Beier from liability but otherwise left the original judgment intact.

Travelers, Kenko, and Plaintiff now appeal.

LAW AND DISCUSSION

A. Travelers’ Assignments of Error

I. Insurance Coverage

Travelers’ CGL policy provides, in pertinent part:

SECTION II: GENERAL LIABILITY COVERAGES

Coverage A: Bodily Injury and Property Damage

1) Insuring Agreement:

This Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

“Bodily Injury”

“Property Damage”

to which this insurance applies. This Company will have the right and duty to defend the insured against any “claim” or “suit” seeking those damages. This Company may, at their discretion, investigate any “occurrence” and settle any “claim” or “suit” that may result․

․

2. Exclusions:

The exclusions which follow apply to coverages in all sections of this policy, including the “Marine Liabilities” sections. Unless otherwise indicated as applying only to “bodily injury” or “property damage”, these exclusions also apply to Coverage B: “Personal and Advertising Injury”.

This insurance does not apply to:

(11) Expected or Intended Injury

“Bodily injury” or “property damage” expected or intended from the standpoint of the insured.

This exclusion does not apply to “bodily” injury arising out of the use of reasonable force to protect persons or property.

․

(14) Damage to the Insured's Product

“Property damage” to the “insured's products” arising out of such products or any part of such products.

(15) Damage to the Insured's Work

“Property damage” to work performed by or on behalf of the insured arising out of the work or any portion thereof, or out of materials, parts or equipment in connection therewith.

․

(23) Fraud, Infidelity, Dishonesty, Criminal Acts

Any liability for loss, injury, damage or expense arising out of fraud, infidelity, dishonesty, and/or criminal acts of any insured or any representative or “employee” of an insured committed individually or in collusion with

․

(26) Breach of Contract

Any liability for loss, injury, damage or expense arising out of any actual or alleged breach of, or non-compliance with, a contract or agreement.

This exclusion applies regardless of whether or not the contract or agreement is an “insured contract”.

The interpretation of an insurance policy is typically a question of law to be reviewed de novo. Williams v. Univ. of La. Lafayette, 19-753 (La.App. 3 Cir. 4/22/20), 297 So.3d 1045, writ denied, 20-1008 (La. 11/4/20), 303 So.3d 641. On review, no deference is given to the legal conclusions of the trial court. Id. “As to questions of law, ‘the standard of review of an appellate court is simply whether the court's interpretive decision is legally correct.’ ” Id. at 1049 (quoting Ohm Lounge, L.L.C. v. Royal St. Charles Hotel, L.L.C., 10-1303, p. 4 (La.App. 4 Cir. 9/21/11), 75 So.3d 471, 474).

“An insurance policy is a conventional obligation that constitutes the law between the insured and the insurer, and the agreement governs the nature of their relationship.” Hodge v. La. Farm Bureau Mut. Ins. Co., 55,656, p. 15 (La.App. 2 Cir. 6/26/24), 388 So.3d 1281, 1290, writ granted, 24-958 (La. 1/14/25), 398 So.3d 645. An insurance policy must be construed employing the general rules of interpretation of contracts found in the Civil Code. Perrodin v. W. World Ins. Co., 24-524 (La.App. 3 Cir. 3/26/25), 414 So.3d 865.

“If the insurance policy's language clearly expresses the parties’ intent and does not violate a statute or public policy, the policy must be enforced as written.” Hodge, 388 So.3d at 1290. “ ‘ “The parties’ intent as reflected by the words in the policy determine the extent of coverage.’ ”” Williams, 297 So.3d at 1049 (quoting Spencer v. Chevron Corp., 16-174, p. 6 (La.App. 4 Cir. 9/28/16), 202 So.3d 1055, 1058). If the insurance policy is considered ambiguous then it must be interpreted in favor of coverage. Hodge, 388 So.3d 1281.

In Hodge, 388 So.3d at 1290, the court explained:

Liability insurance policies should be interpreted to effect, rather than to deny coverage. Yount v. Maisano, 627 So. 2d 148 (La.1993). However, it is well-settled that unless a statute or public policy dictates otherwise, the insurers may limit liability and impose such reasonable conditions or limitations upon their insureds. Reynolds [v. Select Props., Ltd.], 634 So.2d [1180,] at 1183 [La. 1994]; Livingston Parish School Bd. v. Fireman's Fund Amer. Ins. Co., 282 So. 2d 478 (La.1973); Oceanonics, Inc. v. Petroleum Distrib. Co., 292 So. 2d 190 (La.1974). In these circumstances, unambiguous provisions limiting liability must be given effect. Supreme Servs. & Specialty Co. v. Sonny Greer, Inc., 06-1827 (La. 5/22/07), 958 So. 2d 634.

“Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La.Civ.Code art. 2050.

Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Garcia v. St. Bernard Parish School Board, 576 So.2d 975, 976 (La.1991). However, the rule of strict construction does not “authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists.” Muse v. Metropolitan Life Ins. Co., 193 La. 605, 192 So. 72, 75 (1939).

Ledbetter v. Concord Gen. Corp., 95-809, p. 4 (La. 1/6/96), 665 So.2d 1166, 1169, amended, 95-809 (La. 4/18/96), 671 So.2d 915.

“[T]he insurer bears the burden of proving that a loss falls within a policy exclusion.” Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 6 (La. 5/22/07), 958 So.2d 634, 639.

Travelers has set forth multiple policy exclusions which it argues bar coverage under the policy. “[W]hen coverage is sought to be excluded under a policy of insurance, only one exclusion is necessary to exclude coverage.” Perrodin, 414 So.3d at 869. “[I]t is not necessary for every exclusion to apply in order to find the policy does not provide coverage.” McMath Const. Co., Inc. v. Dupuy, 03-1413, p. 8 (La.App. 1 Cir. 11/17/04), 897 So.2d 677, 683, writ denied, 04-3085 (La. 2/18/05), 896 So.2d 40.

II. Travelers’ Assignment of Error Number One – Breach of Contract Exclusion

Travelers first argues that the breach of contract exclusion applies because Plaintiff contracted with Kenko to build the bulkhead and the damages resulted from that agreement. The trial court found the breach of contract exclusion to be ambiguous, stating: “The nature of the business of the insured here is such that any ‘occurrence’ would necessarily occur as a result of a contractual agreement and in favor of the insured.” We disagree.

In Provost v. Homes by Lawrence & Pauline, Inc., 12-761 (La.App. 3 Cir. 12/5/12), 103 So.3d 1280, writ denied, 13-49 (La. 2/22/13), 108 So.3d 776, plaintiffs contracted with defendant to build their home. Soon after moving in, they discovered defects in the property. Defendant had a CGL policy with American Vehicle Insurance Company (AVIC). Initially AVIC provided a defense; however, on summary judgment, AVIC asserted that its policy did not provide coverage under certain exclusions, including the breach of contract exclusion. The trial court granted AVIC's motion, and a panel of this court affirmed. A representative of the builder testified that all duties owed arose from the contract to build plaintiff's home. We explained that “CGL polices are ‘not written to guarantee the quality of the insured's work or product.’ ” Id. at 1283 (quoting Supreme Servs., 958 So.2d at 641).

In Everett v. Philibert, 08-2270 (La.App. 1 Cir. 5/8/09), 13 So.3d 616, plaintiffs filed suit against their contractor, alleging deficiencies in construction and tort claims of bodily injury and emotional distress. The contractor's CGL insurer was also sued. On insurer's motion, the trial court granted summary judgment, finding, amongst other exclusions, that the breach of contract exclusion applied to bar coverage. Plaintiffs argued that the breach of contract exclusion did not cover the tort claims. The first circuit found that “[a]ll the tort claims alleged by the [plaintiffs], stem from [the contractor's] contractual duty to properly and timely construct a residence.” Id. at 620.

In Allen v. Southwest Builders, L.L.C., 22-1344 (La.App. 1 Cir. 8/24/23), 372 So.3d 32, the litigation arose out of alleged defects in the construction of a residence. Plaintiffs filed suit against the contractor and its CGL insurer. Holding that the breach of contract exclusion barred coverage, the first circuit explained:

Courts in Louisiana have held that the breach of contract exclusion in a commercial general liability insurance policy unambiguously excludes from coverage all claims by an owner against a contractor or subcontractor for breach of contract or negligence from alleged defective or incomplete work. See Provost v. Homes by Lawrence & Pauline, Inc., 2012-761 (La. App. 3 Cir. 12/5/12), 103 So.3d 1280, 1285, writ denied, 2013-0049 (La. 2/22/13), 108 So.3d 776 (homeowner's poor workmanship claims fell within the homebuilder's breach of contract exclusion in its commercial general liability policy); Everett v. Philibert, 2008-2270 (La. App. 1 Cir. 5/8/09), 13 So.3d 616, 620 (homeowner's negligence claims against homebuilder fell within the commercial general liability policy's breach of contract exclusion.)

Louisiana jurisprudence has consistently held that a commercial general liability policy that includes a breach of contract exclusion, such as the one in this case, unambiguously precludes any claims for coverage regarding any “bodily injury,” “property damage,” “advertising injury,” “personal injury” or an “occurrence” or damages of any type. See Everett, 13 So.3d at 619. Furthermore, the facts of this case make it clear that all of the plaintiffs’ allegations against Maxum are based on Southwest's alleged breach of its contractual duty to timely and properly construct the plaintiffs’ home. Thus, all of the plaintiffs’ property damage claims against Maxum are clearly precluded from coverage since they all arise from a breach of contract claim.

Id. at 41.

The trial court suggests all “occurrences” would fall under the breach of contract exclusion. This is not correct. If a plaintiff were to show that their negligence claims are separate and distinct from the claims arising out of the underlying contract, the breach of contract exclusion would not apply. See Everett, 13 So.3d 616, and In re St. Louis Encephalitis Outbreak in Ouachita Par. No. 01-4224 All Cases, 41,250 (La.App. 2 Cir. 9/1/06), 939 So.2d 563, writ denied, 06-2527 (La. 12/15/06), 945 So.2d 694. Therefore, we do not find the breach of contract exclusion ambiguous.

Although we find that the breach of contract exclusion is not ambiguous, we find that it is not applicable in this case for other reasons. Plaintiff contends that there is no contract on which to base the breach of contract exclusion. Specifically, Plaintiff argues that because Cooley and Beier did not have the proper licenses to do the work, the contract is an absolute nullity. At trial, the trial court “ruled that the contract between Kenko and the Plaintiff was an absolute nullity due to the failure of Mr. Cooley and Mr. Beier to have the required licenses to perform the subject work.”

There are numerous cases that find a contract between a plaintiff and an unlicensed contractor is absolutely null. In Korrapati v. Augustino Brothers Construction, LLC, 19-426 (La.App. 5 Cir. 7/31/20), 302 So.3d 147, plaintiff hired defendant to enclose the back porch of her home. Thereafter, plaintiff learned that defendant was not a licensed contractor. There were also delays and problems with the quality of the work. Because defendant did not seek a permit for the project, a notice of violation was posted at the worksite. Plaintiff filed a motion for summary judgment, requesting a finding from the court that the construction contract was void due to a lack of a valid contractor's license.

The Korrapati court found:

La. R.S. 37:2160 provides as follows:

(1) It shall be unlawful for any person to engage or to continue in this state in the business of contracting, or to act as a contractor as defined in this Chapter, unless he holds an active license as a contractor under the provisions of this Chapter.

(2) It shall be unlawful for any contractor, licensed or unlicensed, who advertises in any form or in any news medium, to advertise that he is a licensed contractor without specifying the type of license to which he is referring.

La. C.C. art. 2030 states that “A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed.” Louisiana courts have nullified contracts entered into by unlicensed contractors. Executone Sys. Co. of La. v. Jefferson Par. Hosp. Serv. Dist. No. 2 for Par. of Jefferson, 15-569 (La. App. 5 Cir. 2/24/16), 186 So.3d 1210, 1218, writ denied sub nom, Executone Sys. Co. of La. v. Jefferson Par. Hosp. Serv. Dist. No. 2 ex rel. Par. of Jefferson, 16-0569 (La. 5/13/16), 191 So.3d 1059.

Id. at 153. The first circuit upheld the trial court's ruling that the contract was a nullity.

In Robinson v. Papania, 22-1010 (La.App. 1 Cir. 3/6/23), 368 So.3d 74, writ denied, 23-488 (La. 5/23/23), 360 So.3d 1262, plaintiff contended that the contract was an absolute nullity because the defendants did not have the proper construction license. The first circuit held that “it is unlawful for a contractor or builder - who is required to be licensed by the Louisiana State Licensing Board - to enter into a construction contract or work as a residential building contractor without the proper license.” Id. at 78; See also Quarternary Res. Investigations, LLC v. Phillips, 18-543 (La.App. 1 Cir. 11/19/20), 316 So.3d 448, writ denied, 20-1450 (La. 3/2/21), 311 So.3d 1059. Defendant admitted that he did not have a license when he contracted with the plaintiff. “These statutes[, La.R.S. 37:2160 and 2167,] embody rules of public order, and, under La. C.C. art. 2030, any contract made in violation of a rule of public order is an absolute nullity.” Robinson, 368 So.3d at 78 (footnote omitted).

In the present case, the evidence shows that Kenko did not have the proper licensing in order to perform the work under the construction contract. The jurisprudence is clear that this fact nullifies the contract. Because the contract is absolutely null, we find the breach of contract exclusion does not apply to bar coverage under the policy. Consequently, we pretermit discussion of Travelers’ assignment of error number two regarding the trial court's failure to let the jury decide whether Plaintiff's damages arose out of the breach of contract.

III. Travelers’ Assignments of Error Numbers Three, Four and Five – The Work-Product Exclusion, Products-Completed Operations Hazard, and Separation of Bulkhead and Shoreline Damages on the Jury Verdict Form

We will discuss these three assignments of error together for efficiency. Travelers argues that the work-product exclusion bars coverage for the $167,058.59 it cost Plaintiff to replace the bulkhead. The CGL policy at issue states that it does not apply to “ ‘Property damage’ to the ‘insured's products’ arising out of such products or any part of such products[ ]” or to “ ‘Property damage’ to work performed by or on behalf of the insured arising out of the work or any proportion thereof, or out of materials, parts or equipment in connection therewith.” This is more commonly known as the work-product exclusion.

Property damage is defined in the policy as:

(a) Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or

(b) Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “ occurrence” that caused it.

The policy defines the insured's product as:

(a) Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by:

1. The Named Insured;

2. Others trading under the Named Insured's name; or

3. A person or organization whose business or assets the Named Insured has acquired; and

(b) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products.

The “insured's product” includes:

(a) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of the “insured's product”; and

(b) The providing of or failure to provide warnings or instructions.

The “insured's product” does not include vending machines or other property rented to or located for the use of others but not sold.

The policy defines the insured's work as:

(a) Work or operations performed by the Named Insured on their own behalf; and

(b) Materials, parts or equipment furnished in connection with such work or operations.

“Insured's work” includes:

(a) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of the “insured's work; and;

(b) The providing of or failure to provide warnings or instructions.

In Supreme Services, 958 So.2d 634, plaintiff filed suit against its contractor, after completion of the project, for faulty and defective design and construction of an oilfield facility. The supreme court addressed whether the CGL policy at issue provided coverage for liability arising out of faulty work performed by the insured's subcontractor. The trial court found coverage did exist under the policy. The discussion focused on the work-product exclusion. The supreme court explained:

Professors McKenzie and Johnson define both the “work product” exclusion and the “PCOH” provision. See, § 186, pp. 512–521 and § 195, at pp. 554–562 in 15 La. Civil Law Treatise (3d ed.2006). The “work product” exclusion reflects the insurance company's intent to “avoid the possibility that coverage under a CGL policy will be used to repair and replace the insured's defective products and faulty workmanship.” A CGL policy is not written to guarantee the quality of the insured's work or product. McMath Const. Co., Inc. v. Dupuy, 03–1413 (La.App. 1st Cir.11/17/04), 897 So.2d 677, 682, writ denied, 04–3085 (La.2/18/05), 896 So.2d 40.

Id. at 641 (emphasis added). A CGL policy is not meant to be a performance bond. McMath Const. Co., Inc. v. Dupuy, 897 So.2d 677. “The jurisprudence has further interpreted these provisions to exclude consequential damages directly resulting from defective workmanship, such as damages for repair costs.” Id. at 682–83.

The Supreme Services policy also included a products-completed operations hazard clause (PCOH). The plaintiff asserted that an inherent conflict existed between the PCOH and work-product exclusion in the policy, which rendered the policy ambiguous. This is the same argument that Elizabeth Molbert asserts.

The PCOH is defined in the Travelers CGL policy as such:

(a) Includes all “bodily injury” and “property damage” occurring away from premises owned or rented by the Named Insured and arising out of the “insured's product” or the “insured's work” except:

1. Products that are still in the physical possession of the Named Insured; or

2. Work that has not yet been completed or abandoned. However, the “insured's work” shall be deemed completed at the earliest of the following times:

(i) When all of the work called for in the Named Insured's contract has been completed.

(ii) When all of the work to be done at a job site has been completed if the Named Insured's contract calls for work at more than one job site.

(iii) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project.

Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed.

(b) Does not include “bodily injury” or “property damage” arising out of:

1. The transportation of property, unless the injury or damage arises out of a condition in or on a vehicle not owned or operated by the Named Insured, and that the condition was created by the “loading or unloading” of that vehicle by any insured;

2. The existence of tools, uninstalled equipment or abandoned or unused materials.

In Supreme Services, the supreme court found no ambiguity in the policy and distinguished Mike Hooks, Inc. v. JACO Services, Inc., 95-1485 (La.App. 3 Cir. 5/8/96), 674 So.2d 1125, writ denied, 96-1924 (La. 11/1/96), 681 So.2d 1264, upon which the plaintiff relied. In Mike Hooks, this court found that the policy was ambiguous as to coverage under the PCOH clause. The supreme court, in Supreme Services, found that the faulty workmanship (installation of bearings) in Mike Hooks caused damage to another product (fractured the crank shaft), which triggered the PCOH. In Supreme Services, there was no evidence of damage to a third person or product; therefore, the supreme court found the work-product exclusion applied.

The supreme court went on to discuss Joe Banks Drywall & Acoustics, Inc. v. Transcontinental Insurance, Co., 32-743 (La.App. 2 Cir. 3/1/00), 753 So.2d 980, which rejected the Mike Hooks holding “that a PCOH clause was ambiguous when read in conjunction with the ‘work-products’ exclusions of a CGL policy.” Id. at 643. The court in Joe Banks, 753 So.2d at 985 (emphasis added), opined:

Typically, a commercial liability policy divides the hazards to which a commercial enterprise may be exposed into two categories: (1) hazards arising from an enterprise's operations that are not yet complete and from conditions of the enterprise's premises; and (2) hazards arising from an enterprise's completed work that was done away from the enterprise's premises. Obviously, coverage for both categories will be more expensive than coverage for the first category only. Nothing in the policy, however, limits the exclusions discussed above from application to both categories of hazards; and application of the exclusion for property damage to “your work” does not eliminate all risks covered by the products-completed operations coverage.

Supreme Services also discussed Bollinger Shipyards Lockport, L.L.C. v. AmClyde Engineered Products, Inc., No. Cir. A 01-707, 2003 WL 21396773 (E.D. La. 2003). In Bollinger, the litigation stemmed from “the collapse and loss of certain crane items fabricated and installed” on a barge by defendant. Id. at *1. The federal court was tasked with interpreting the insurance policy and rejected the Mike Hooks decision, finding no ambiguity between the work-product exclusion and the PCOH. Finding the two provisions reconcilable, the federal court explained:

The products hazard definition allows generally for coverage for property damages “arising out of” the insured's product. The work product exclusion precludes recovery for damage to the product itself. Coverage remains for personal injury and “other property” damage. The purpose of any exclusion is to limit the coverage provided elsewhere in the policy; the fact that this exclusion effectively limits some of the coverage provided does not yield an automatic ambiguity. An argument that a policy provision is “somewhat confusing” does not warrant a finding of ambiguity.

Id. at *6 (quoting Lindy Invs., L.P. v. Shakertown Corp., No. 94-4112, 1998 U.S. Dist. LEXIS 2817, at *7–8 (E.D. La. Mar. 5, 1998)).

“This means that repair and replacement costs for the faulty work are excluded, whereas, any damage to other property that may result is included.” Id. at *7. This is the exact scenario with which we are faced in the present case. This case involves claims for faulty workmanship and costs to repair and/or replace the faulty work, i.e. the bulkhead. It also involves other property damage that arose one year after the completion of the project, i.e. damages to Plaintiff's home.

The Supreme Services court ultimately found “that a CGL policy containing the ‘work product’ exclusion does not insure any obligation of the policyholder to repair or replace his own defective product.” Supreme Services, 958 So.2d at 643.

The jurisprudence has consistently ruled that a CGL policy “excludes damages to repair and replace the insured's defective products or faulty workmanship.” Dorsey v. Purvis Contracting Grp., LLC, 17-369, p. 10 (La.App. 5 Cir. 12/27/17), 236 So.3d 737, 744, writ denied, 18-199 (La. 3/23/18), 239 So.3d 296; See also Perrodin, 414 So.3d 865.

In the recent case Evans v. Long, 25-704 (La.App. 3 Cir. 10/14/26), ___So.3d___, L & L Delta Farms, Inc. entered into a contract with Grain Bin Services, Inc. for the construction of four grain bins. The grain bins were completed in 2013. The plaintiffs then entered into a ten-year lease of the grain bins for use on their farm. In 2018, the plaintiffs filed suit, alleging defects in the grain bins which arose after the grain bins were put into use. The trial court denied the insurer's summary judgment motion to exclude coverage under the CGL policy. A panel of this court reversed, finding the policy provision unambiguous and that the work-product exclusion barred coverage “for the very product manufactured and sold, the grain bins.” Id. at ___.

It is clear from the cases cited herein that the work-product exclusion and the PCOH clause do not inherently conflict with one another. It is also clear that the bulkhead built by Kenko falls under the work-product exclusion in the policy. Therefore, we find that the Travelers CGL policy does not provide coverage for damage to the bulkhead itself, including repair and replacement costs. However, we do find that the damage to Plaintiff's house is covered by the PCOH clause because it is “property damage” arising out of the “insured's product” or the “insured's work” after completion of the project. The damage to the house does not fall under the work-product exclusion. Therefore, we find that the damages awarded to Plaintiff for her house are recoverable under the policy.

Next, Travelers argues that the trial court erred in failing to separate damage to the bulkhead and damage to the shoreline on the verdict form over its objection. In finding the work-product exclusion was not applicable in this case, the trial court determined:

There is no way to determine how much of that award was intended for damage to the shoreline or damage to the bulkhead. Based on the definitions in the policy, the “product” at issue was the bulkhead itself and the “work” was the construction of the bulkhead. The Court does not find that there was any actual damage to the bulkhead, but rather, the damages awarded by the jury were for the replacement of the bulkhead and repair of the shoreline. As such, the costs for the bulkhead are not excluded by the work-product exclusions as there was no property damage to the “work” or “product” of the insured. Additionally, the award for damage to the shoreline is not excluded by the work-product exclusion for the same reasons.

We have already determined that the work-product exclusion applies to bar coverage for any damage to the bulkhead, including repair and/or replacement costs. We must next determine what amount of damages was awarded by the jury to Plaintiff for the bulkhead. Travelers requests that, if this amount cannot be separated from the damages for the shoreline after a review of the record, the matter be remanded to the trial court for a determination.

The jury verdict form asked, “What amount of money, if any, would fairly and adequately compensate Elizabeth Molbert for her damages?” Under that question were several line items, including one for “Damage to shoreline/bulkhead.” The jury awarded $167,058.59 in damages for the “shoreline/bulkhead[.]” Plaintiff testified at trial that she paid $167,058.59 to repair and replace the bulkhead. The following colloquy occurred at trial:

Q. ․ And this is your claim [for] total out-of-pocket expenses to repair/replace the Kenko bulkhead; correct:

A. Yes, sir.

Q. And you have seen this before and you agree that for the bulkhead replacement you paid $167,058.59; correct?

A. Yes, sir.

Q. All right. You can sit back down. Thank you. Earlier today I think you talked to - - I think Mr. Calogero said something like roughly half the original bulkhead is still standing; do you remember that commentary? And I think you said about - - “close” was I think you answer?

A. Yes, I remember that.

Q. Meaning that bulkhead that Kenko installed was damaged in the flood incident right?

A. Yes.

Q. Okay. And the $167,000.00 we just put up, that was to repair/replace the bulkhead, correct, the Kenko bulkhead?

A. The damaged part.

Q. Yes.

․

Q. Okay. But I just want to be clear, you - - you repaired and replaced the old bulkhead; correct?

A. That's the words. I replaced the part that failed.

Q. Okay.

A. The part that was bad.

Q. But it cost $167,000.00 to replace that bulkhead;right?

A. Yes.

Q. Okay.

A. That's not justtheparts, that's the engineeringandeverything.

․

Q. You see the next one on May 29, 2018, it says, “Repair and replacement of the bulkhead.”

A. Yes.

Q. All right. Just making sure. You repaired and replaced the bulkhead for $167,000.00. Right?

A. The parts that failed.

Q. That's right. But earlier today you said that the coastal shoreline was destroyed; correct?

A. Yes.

Q. Yeah. But you didn't restore the coastal shoreline to its original condition; correct;

A. That couldn't be done, the trees were gone, everything.

Q. That's my - - I just want to make sure we know exactly [that] this $167,000.00 was not repair - - was not to repair - - to restore the coastal shoreline back to its original condition; correct?

A. No. It couldn't be. There were no trees. There was, you know - -

Q. Yeah.

A. It was - - it was to repair the part of the bulkhead that needed to be repaired.

Q. Right. Thank you.

Based on the foregoing, it is clear that the jury awarded the exact amount of damages to repair/replace the bulkhead as testified to by Plaintiff - $167,058.59. Although the line item included “shoreline” damages, Plaintiff testified that the $167,058.59 in damages requested was only for the bulkhead and not the shoreline. She testified that she did not restore the shoreline because it could not be done. Therefore, we find that the amount of damages awarded to Plaintiff by the jury for the “bulkhead/shoreline” can be separated from each other and further find that the jury award of $167,058.59 represents the repair/replacement costs of the bulkhead. We find no need to remand this issue to the jury.

IV. Travelers’ Assignments of Error Numbers Six and Seven – Fraud

Next, Travelers argues that Plaintiff's claims of fraud do not constitute an “occurrence” to satisfy the policy, and the Expected or Intended Injury Exclusion excludes coverage for these claims. It also asserts that the trial court erred in not allowing these issues to be decided by the jury.

The policy defines an “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions. “Louisiana courts interpret ‘occurrence’ to include ‘an unforeseen and unexpected loss.’ ” Travelers Cas. And Sur. Co. of Am. V. Univ. Facilities, Inc., Civil Action No. 10-1682, 2012 WL 1198611, *4 (E.D. La. April 10, 2012) (quoting N. Am. Treatment Sys. V. Scottsdale Ins. Co., 05-81, p. 22 (La.App. 1 Cir. 8/23/06), 943 So.2d 429, 444, writs denied, 06-2803, 06-2918 (La. 2/16/07), 949 So.2d 424, 423). “Such a loss can arise out of faulty construction.” Id. “Under Louisiana jurisprudence, the ‘accident’ is the negligent act or omission or other fault that caused the loss.” W. McKenzie & H. Johnson, 15 Civil Law Treatise, Insurance Law and Practice § 6.5 (2025).

Travelers contends that Plaintiff claimed damages due to fraud and that Plaintiff's damages from fraud are excluded under the policy. During the trial, the trial court granted a directed verdict, finding Plaintiff did not plead fraud and that the fraud issue would not be presented to the jury in the jury charges or on the verdict sheet. In the amending petition, Plaintiff alleged Kenko, Beier, and Cooley were unlicensed. It is upon this allegation that Travelers submits Plaintiff made a claim for fraud.

In Merhige v. Pacific Life Insurance Co., 26-45, pp. 8–9 (La.App. 5 Cir. 4/28/26), 435 So.3d 787, 795 (alteration in original), writ denied, 26-689 (La. 10/13/16), ___So.3d___, the court explained:

The law governing the substance of plaintiff's fraud claims under La. C.C. art. 1953 is well established. Article 1953 provides that “[f]raud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.”

To establish a claim for fraud, the plaintiff must prove: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to the other party; and (3) the resulting error must relate to a circumstance substantially influencing the other party's contractual consent. DA Exterminating Co. v. Discon, 24-116 (La. App. 5 Cir. 10/30/24), 398 So.3d 1239, 1247. The specific intent to deceive is a necessary element of fraud; fraud cannot be predicated upon mistake or negligence. Id. Fraud must be pled with particularity. La. C.C.P. art. 856.

In the present case, the specific allegation in the amending petition states: “[S]hortly thereafter, petitioner learned that, despite defendants’ assurances that they were licensed contractors and able to legally perform the work requested, defendants were not licensed.” This allegation fulfills the first step in claiming fraud – “misrepresentation, suppression, or omission of true information[.]” Merhige, 435 So.3d at 795. Plaintiff does not allege that misrepresenting their licensing status was done with the intent to obtain an unjust advantage or to cause her damage. The amending petition also lacks the requisite claim that it influenced her contractual consent. “[S]pecific intent to deceive” is not alleged in the petition. See Id.

Because “[f]raud must be pled with particularity[,]” we do not find that Plaintiff alleged a fraud claim. Id. Further, Travelers’ answer does not allege fraud as an affirmative defense. “Affirmative defenses raise issues outside those presented in a plaintiff's petition for damages, thus, it is necessary that it is pled in order to afford the plaintiff an opportunity to adjust its case in light of the new issue raised.” Milligan v. Heritage Manor Health & Rehab. Ctr., 19-887, p. 8 (La.App. 3 Cir. 8/19/20), 304 So.3d 922, 927. For these reasons, we do not find that the Expected or Intended Injury Exclusion applies in this case. The trial court did not err in granting a directed verdict on this issue.

B. Kenko's Assignments of Error

1. Kenko's Assignment of Error Number One – Failure to Give the Jury a Property Valuation Charge

Kenko argues that the trial court failed to instruct the jury on valuation of property damages under Louisiana law. It contends that instead, the jury was given a general charge which required them to award all damages submitted by Plaintiff. As a result, Kenko submits Plaintiff was able to recover substantial improvements made to her home.

“[T]he court shall instruct the jurors on the law applicable to the cause submitted to them.” La.Code Civ.P. art. 1792(B). “The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate.” Adams v. Rhodia, Inc., 07-2110, p. 5 (La. 5/21/08), 983 So.2d 798, 804.

The supreme court, in Adams, 983 So.2d at 804, explained:

Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; the judge must, however, correctly charge the jury. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error. Doyle v. Picadilly Cafeterias, 576 So.2d 1143, 1152 (La.App. 3 Cir.1991).

Correlative to the judge's duty to charge the jury as to the law applicable in a case is a responsibility to require that the jury receives only the correct law. Melancon v. Sunshine Construction, Inc., 97–1167, p. 6 (La.App. 1 Cir. 5/15/98), 712 So.2d 1011, 1016; Doyle, 576 So.2d at 1152.

Louisiana jurisprudence is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Trial courts are given broad discretion in formulating jury instructions and a trial court judgment should not be reversed so long as the charge correctly states the substance of the law. The rule of law requiring an appellate court to exercise great restraint before upsetting a jury verdict is based, in part, on respect for the jury determination rendered by citizens chosen from the community who serve a valuable role in the judicial system.

Id. at 804.

“An appellate court reviews the instructions given to the jury under the manifest error standard of review.” Carrero v. Mandina's, Inc., 25-254, p. 13 (La.App. 4 Cir. 1/28/26), 437 So.3d 922, 933, writ denied, 26-278 (La. 5/19/26), 431 So.3d 1197.

“Generally, ‘the giving of an allegedly erroneous jury instruction will not constitute grounds for reversal unless the instruction is erroneous and the complaining party has been injured or prejudiced thereby.’ ” Wooley v. Lucksinger, 09-571, p. 81 (La. 4/1/11), 61 So.3d 507, 574 (quoting Rosell v. ESCO, 549 So.2d 840, 849 (La.1989)).

In Wooley, 61 So.3d at 574–75, the defendant asserted that the trial court erred in failing to give one of its proposed jury instructions and in giving erroneous or incomplete instructions.

In order to determine whether an erroneous jury instruction was given, reviewing courts must assess the targeted portion of the instruction in the context of the entire jury charge “to determine if the charges adequately provide the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its determination.” Adams [v. Rhodia, Inc.], 2007–2110, p. 7 [(La. 5/21/08)], 983 So.2d [798,] 804; Nicholas [v. Allstate Ins. Co.], 1999–2522 p. 8 [(La. 8/31/00)], 765 So.2d [1017,] 1023; Rosell, 549 So.2d [798,] 849 [(La.1989)]. The ultimate inquiry on appeal is whether the jury instructions misled the jury to such an extent that the jurors were prevented from dispensing justice. Adams, 2007–2110 p. 7, 983 So.2d at 804; Nicholas, 1999–2522 p.8, 765 So.2d at 1023.

The law is clear the review function is not complete once error is found. Prejudice to the complaining party cannot automatically be assumed from the mere fact of an error. Instead, the reviewing court must then compare the degree of the error with the adequacy of the jury instructions as a whole and the circumstances of the case. As we found in Adams:

the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts. Thus, on appellate review of a jury trial the mere discovery of an error in the judge's instructions does not of itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case.

Id., 2007–2110 p. 7–8, 983 So.2d at 805.

Kenko submits that the parties, on several occasions prior to and during trial, attempted to have the court define the damages under consideration by the jury. Specifically, Defendants sought to limit Plaintiff's damages for the house to the actual cash value of the home. Ultimately, the trial court gave general jury instructions regarding damages.

Kenko's complaint centers on the jury's damage award. Kenko contends that Plaintiff was awarded damages which improved her position far beyond her preincident situation. Specifically, Plaintiff chose to replace the wooden bulkhead, which cost $32,500.00 to build, with a steel one that cost significantly more at $167,058.59. In addition, Kenko argues that the house foundation was improved instead of restored to its original condition. The evidence shows all of the house pilings were replaced with helical pilings and concrete and steel reinforced grade beams at a total cost of $184,600.00. It is Kenko's position that Plaintiff should have only been able to recover the actual cash value of her home and bulkhead. Kenko argues that had the jury been properly instructed on valuation, the jury would have awarded the proper damages.

Plaintiff counters that she was required to pull a parish permit in order to repair her home. In order for her to obtain a permit, she had to be in compliance with the current codes that applied to the repair as well as regulations associated with FEMA that required her to elevate her home above the flood plain. The raising of the home required a new foundation with a flood plan approved or stamped by an engineer. Plaintiff submits that she followed the rules, obtained the proper permits and engineer-approved or stamped plans. That cost was the mount awarded by jury.

Louisiana Civil Code Article 2315 states, “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” “One injured through the fault of another is entitled to full indemnification for damages caused thereby.” Roman Cath. Church of Archdiocese of New Orleans v. La. Gas Serv. Co., 618 So.2d 874, 876 (La.1993).

The supreme court opined:

Consequently, “[w]hen property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was in immediately preceding the damage․” Coleman v. Victor, [326 So.2d 344,] 346 [(La.1976)]. Accordingly, “the measure of damages is the cost of restoring the property to its former condition. In assessing damage to property, generally, courts have considered the cost of restoration as the proper measure of damage where the thing damaged can be adequately repaired.” Id. at 346-47, citing Lambert v. American Box Co., [(144 La. 604, 81 So. 95 (1919)]; Hayward v. Carraway, 180 So.2d 758 (La.App. 1st Cir.1965), writ ref. 248 La. 909, 182 So.2d 662 (1966). “[N]o mechanical rule can be applied with exactitude in the assessment of property damage under Article 2315.” Coleman v. Victor, supra, at 347, citing Jordan v. Travelers Ins. Co., [257 La. 995, 245 So.2d 151 (1971)]

Id. at 876 (first, second, and sixth alterations in original).

In Roman Catholic Church, the supreme court was tasked with determining “whether the lower courts erred in limiting plaintiffs’ damages to replacement cost, less depreciation, rather than awarding the plaintiffs the full cost of restoration that had been reasonably incurred.” Id. The supreme court found that the plaintiff was entitled to recover the full restoration costs of the building destroyed by the fire, and the judgment was amended from $125,338.50 to $232,677.00. The supreme court explained its decision thus:

[W]e conclude that, as a general rule of thumb, when a person sustains property damage due to the fault of another, he is entitled to recover damages including the cost of restoration that has been or may be reasonably incurred, or, at his election, the difference between the value of the property before and after the harm. If, however, the cost of restoring the property in its original condition is disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the owner for restoring the original condition or there is a reason to believe that the plaintiff will, in fact, make the repairs, damages are measured only by the difference between the value of the property before and after the harm. Consequently, if a building such as a homestead is used for a purpose personal to the owner, the damages ordinarily include an amount for repairs, even though this might be greater than the entire value of the building.

Id. at 879–80 (emphasis added).

In the present case, there is no question that the property is used for a purpose personal to the owner – as her home. Additionally, Plaintiff has made the repairs to her home and the bulkhead.

Kenko points out that there was evidence from Plaintiff's own expert, Neil Hall, that there was an option to retain the original pilings to accomplish the required elevation. When asked by defense counsel whether the contractor could have spliced together the timber pilings instead of replacing them, Hall stated, “You could probably find a way to do it[.]” Defendant ignores other testimony that it was necessary to replace the pilings. The raising of the home required a new foundation with a plan approved or stamped by an engineer.

“[I]t is the jury's role to assess credibility and resolve the conflict as the factfinder.” Stubblefield v. Acadiana Birth House, 25-150, p. 8 (La.App. 3 Cir. 10/8/25), 422 So.3d 453, 459, writ denied, 25-1421 (La. 1/28/26), 425 So.3d 110. A jury's factual findings and determination of damages are subject to a manifest error standard of review. Williams v. Travelers Indem. Co. of CT, 23-601 (La.App. 3 Cir. 3/20/24), 396 So.3d 981, writ denied, 24-668 (La. 10/1/24), 393 So.3d 866.

Based on the foregoing, we do not find that the jury was misled to such an extent that they were prevented from doing justice. The jury in this case was given the general jury instructions on damages. The trial court was under no requirement to give a specific jury instruction requested by any party. We find the jury instructions adequately set forth the issues and the law applicable in this case, and the trial court did not commit reversible error in failing to give a property valuation charge. Regardless, we do not find that Kenko was prejudiced even if the jury charge should have been given. Plaintiff made the repairs necessary to put her home back in a livable state, as required by the parish codes and FEMA regulations. Based on the jurisprudence, Plaintiff was entitled to these restoration costs. See Roman Catholic Church, 618 So.2d 874. The jury was not manifestly erroneous in awarding Plaintiff the full restoration costs that she paid to repair her house and the bulkhead. This assignment has no merit.

1. Kenko's Assignment of Error Number Two – Subrogation.

Next, Kenko complains that the trial court erred in failing to grant Kenko's exception of no right of action on the issue of subrogation. Kenko initially raised the subrogation issue in an exception of no right of action, which the trial court found was premature and denied the exception. Post-trial, Kenko raised the issue again in its motion for judgment notwithstanding the verdict. This motion was also denied by the trial court.

“The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” Hood v. Cotter, 08-215, p. 17 (La. 12/2/08), 5 So.3d 819, 829.

The subrogation issue stems from the $165,000.00 payout that Plaintiff received from her flood insurer Liberty Mutual for damages sustained in the flood. Kenko contends that Plaintiff subrogated her rights to Liberty Mutual, and her recovery should be reduced by $165,000.00.

“Subrogation is the substitution of one person to the rights of another. It may be conventional or legal.” La.Civ.Code. art. 1825. The instant case involves a conventional subrogation. The Liberty Mutual policy includes a subrogation clause. Under VII. General Conditions, the Liberty Mutual policy (emphasis added) states:

S. Subrogation

Whenever we make a payment for a loss under this policy, we are subrogated to your right to recover for that loss from any other person. That means that your right to recover for a loss that was partly or totally caused by someone else is automatically transferred to us, to the extent that we have paid you for the loss. We may require you to acknowledge this transfer in writing. After the loss, you may not give up our right to recover this money or do anything that would prevent us from recovering it. If you make a claim against any person who caused your loss and recover any money, you must pay us back first before you may keep any of that money.

In Gregory v. Landowners Title of Ouachita, L.L.C., 56,629, pp. 7–9 (La.App. 2 Cir. 11/19/25), 425 So.3d 353, 358–59 (footnote omitted), the fourth circuit explained:

The collateral source rule is a rule of evidence and damages that is of common law origin, yet it is embraced and applied by Louisiana courts. Bozeman v. State, 03-1016 (La. 7/2/04), 879 So. 2d 692, 697. In both Bozeman, supra, and La. Dept. of Transp. & Dev. V. Kansas City Southern Ry. Co., 02-2349 (La. 5/20/03), 846 So. 2d 734, 739, the Louisiana Supreme Court cited the Restatement (Second) of Torts § 920A (1979) as source material for the collateral source rule. Restatement (Second) of Torts § 920A provides:

(1) A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability.

(2) Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable.

Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiff's tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor's procuration or contribution. Bozeman, supra. Hence, the payments received from the independent source are not deducted from the award the aggrieved party would otherwise receive from the wrongdoer, and a tortfeasor's liability to an injured plaintiff should be the same, regardless of whether or not the plaintiff had the foresight to obtain insurance. Bozeman, supra. As a result of the collateral source rule, the tortfeasor is not able to benefit from the victim's foresight in purchasing insurance and other benefits. Thomassie v. Amedisys La I, LLC, 20-01229 (La. 1/20/21), 308 So. 3d 1165; Bozeman, supra.

The primary policy reason for the application of the collateral source rule is tort deterrence. The rule reflects the belief that the tortfeasor should not profit from the victim's prudence in obtaining insurance, and that by reducing the amount the tortfeasor would have to pay, the deterrent effect of the law would be hampered. Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12 So. 3d 945.

Subrogation is an exception to the collateral source rule. Pelle v. Munos, 19-0549 (La. App. 1 Cir. 2/19/20), 296 So. 3d 14; Great West Cas. Co. v. State ex rel. Dept. of Transp. & Dev., 06-1776 (La. App. 1 Cir. 3/28/07), 960 So. 2d 973, writ denied, 07-1227 (La. 9/14/07), 963 So. 2d 1005. Thus, the collateral source rule is inapplicable where the right of subrogation is involved, even if the party subrogated does not appear to assert its subrogation rights and the defendants do not timely object to the nonjoinder of the necessary party. Id.

Subrogation is the substitution of one person or entity to the rights of another. La. C.C. art. 1825. Subrogation is the legal fiction established by law whereby an obligation, extinguished with regard to the original creditor by payment which he has received from a third person, or from the original debtor but with funds that a third person has provided, is regarded as substituting in favor of this third person who in essence steps into the shoes of the original debtor and is entitled to assert, in the measure of what he has paid, the rights and actions of the former creditor. A. Copeland Enterprises, Inc. v. Slidell Mem. Hosp., 94-2011 (La. 6/30/95), 657 So. 2d 1292; Safeway Ins. Co. of La. V. State Farm Mut. Auto. Ins. Co., 36,853 (La. App. 2 Cir. 3/5/03), 839 So. 2d 1022.

Here, it is Kenko's position that Plaintiff subrogated her rights to Liberty Mutual. As a result, Kenko argues Plaintiff's recovery in this suit should be reduced by $165,000.00. We disagree.

The subrogation clause in the Liberty Mutual policy gives Liberty Mutual the right to step into the shoes of Plaintiff to recover from a tortfeasor. However, Liberty Mutual did not exercise this right as evidenced by the fact that Liberty Mutual is not a party to this lawsuit. The subrogation clause also allows Plaintiff to make a claim and recover damages, after which she is required to reimburse Liberty Mutual for the monies paid to her under the policy.

The Louisiana Supreme Court has stated that “when an insurer pays his insured only part of the damages to which the insured is entitled from a tortfeasor, the insurer becomes only partially and subordinately subrogated to the insured's right, and the insured is entitled to exercise his right for the balance of the partially paid claim in preference to the insurer-subrogee.” S. Farm Bureau Cas. Ins. Co. v. Sonnier, 406 So.2d 178, 180 (La.1981). La.Code Civ.P. art. 697 states that, when the subrogation is partial, the “incorporeal right to which a person has been subrogated․ shall be enforced judicially by[ ]” either [t]he subrogor and the subrogee[.]” “[I]n a partial subrogation the debt is divided between the subrogor and subrogee, making them either joint or several obligees, and allowing each to exercise his right without prejudice to the other.” S. Farm Bureau Cas. Ins. Co., 406 So.2d at 180.

Therefore, we find that the trial court did not err when it denied Kenko's exception of no right of action. Plaintiff clearly has a right of action to pursue her claims against Defendants as the subrogor in a partial subrogation. Further, Kenko is not entitled to a reduction of $165,000.00 in what it owes to Plaintiff. In accordance with the Liberty Mutual insurance policy, Plaintiff has an obligation to reimburse Liberty Mutual once she recovers the damages awarded to her by the jury. If she does not, it is Liberty Mutual's right to pursue a claim for reimbursement.

Based on the foregoing, we find this assignment is without merit.

II. Kenko's Assignment of Error Number Three – Mental Anguish and Loss of Enjoyment of Life

Kenko claims the trial court committed error when it failed to grant a directed verdict on the issue of Plaintiff's claims for mental anguish and loss of enjoyment of life. Kenko argues the record is devoid of evidence to prove these claims.

“On appeal, the standard of review for a directed verdict is de novo.” Pannell v. City of Scott, 22-538, p. 10 (La.App. 3 Cir. 2/1/23), 355 So.3d 1279, 1286, writ denied, 23-315 (La. 4/25/23), 359 So.3d 988.

In Murrell v. State through the Department of Wildlife and Fisheries, 25-320, pp. 11–12 (La.App. 3 Cir. 11/19/25), 425 So.3d 844, 853–54, writ denied, 25-1600 (La. 3/18/26), 427 So.3d 1241, this court explained:

Directed verdicts are governed by La.Code Civ.P. art. 1810. The application of that article was addressed in Cane v. O'Brien, 23-718 (La.App. 1 Cir. 2/23/24), 384 So.3d 1003, writ denied, 24-478 (La. 6/25/24), 386 So.3d 1082. In that case, the first circuit explained:

Generally, a motion for directed verdict is appropriately granted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the movant's opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. However, if there is substantial evidence opposed to the motion, i.e., evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury.

Id. at 1009 (citations omitted).

An award for mental anguish resulting from property damage is allowed in Louisiana in specific situations:

“(1) when property is damaged by an intentional or illegal act;”

“(2) when property is damaged by acts for which the tortfeasor will be strictly or absolutely liable;”

“(3) when property is damaged by acts constituting a continuing nuisance; or”

“(4) when property is damaged when the owner is either present or nearby and suffered a psychic trauma as a direct result.”

Zaveri v. Husers, 16-866, p. 21 (La.App. 3 Cir. 6/21/17), 224 So.3d 389, 404–05, writ denied, 17-1286 (La. 11/6/17), 229 So.3d 475, (quoting Holzenthal v. Sewerage & Water Bd. of New Orleans, 06-796, p. 39 (La. App. 4 Cir. 1/10/07), 950 So.2d 55, 79, writ denied, 07-294 (La. 3/30/07), 953 So.2d 71.

This court, in Zaveri, explained:

“[T]he mental anguish must be a real mental injury. The usual worry over consequences of property damage will not justify an award for mental anguish damages.” Moss v. Town of Rayville, 50,189, p. 4 (La.App. 2 Cir. 11/18/15), 181 So.3d 809, 813. Nevertheless, “[t]here is no requirement that medical or psychiatric treatment be sought for mental anguish or emotional distress to occur.” Sierra v. Am. Alt. Ins. Corp., 13-1808, p. 7 (La.App. 1 Cir. 6/18/14), 147 So.3d 1125, 1130.

Id. at 405 (alterations in original).

The owner must prove psychic trauma in order to recover for mental anguish for property damages. Enriquez v. Safeway Ins. Co. of La., 52,425 (La.App. 2 Cir. 1/16/19), 264 So.3d 648. “Since the question of whether an owner experiences trauma is a factual determination, the manifest error rule applies to the fact finder's review of the issue.” Id. at 655.

In Vincent v. City of Iowa, 17-951 (La.App. 3 Cir. 4/11/18), 244 So.3d 22, writ denied, 18-750 (La. 9/21/18), 252 So.3d 912, a toilet overflowed with sewage into the plaintiffs’ home which was attributed to a blocked sewerage line owned by the City of Iowa. The family stayed in a hotel for two months before they were able to return to their home after repairs were completed. Following a two-day bench trial, the trial court awarded plaintiffs $75,000.00 for their mental anguish ($35,000.00 for Mr. Vincent and $40,000.00 for Mrs. Vincent), amongst other damages. The City appealed, alleging the trial court abused its discretion in the amount of mental anguish damages awarded.

The Vincent court noted that “it is uncontested that the plaintiffs in this case were in their home, witnessing and personally addressing the offending overflow of sewage into the home.” Id. at 26. In affirming the trial court's judgment, we found that the plaintiffs “offered testimony regarding their respective difficulties following both the occurrence in their home and the subsequent disruption in their life associated both in addressing the situation in the home as well as in their relocation.” Id. at 29.

Kenko cites this court to the second circuit case Demery v. City of Shreveport, 45,615 (La.App. 2 Cir. 11/3/10), 55 So.3d 37. In Demery, the plaintiff discovered a sink hole in her yard. After notifying the city, it was determined that there was a leak in a city drainage pipe. The plaintiff granted a right-of-way to the city, which then rerouted the pipe and installed two catch basins where the drainage pipe changed direction. The plaintiff filed suit for property damage and emotional distress. The plaintiff appealed when the trial court failed to award her damages for emotional distress. The second circuit found the trial court did not err based on the evidence in the record. The evidence was such that beginning in 2005, she began to see a psychologist. The psychologist testified that he was unaware of the problems with her home until a year into seeing the plaintiff and could not draw a direct cause-and-effect relationship between the problems with her home and her depression. The psychologist testified that, at the same time, the plaintiff expressed worry about her employment and that it was a “major stressor in her life[.]” Id. at 40. The plaintiff was never forced to move out of the home, and the damage was limited to a buckled part of the floor and cracks in the wall.

Demery is distinguishable from the instant case. In the present case, Plaintiff came home to see the bulkhead fail and her home start to fall into the river. The testimony is that she was alone in Lake Charles and was her ninety-one-year-old father's caregiver. She testified to the financial difficulty she experienced, from cashing in her IRA and paying tax penalties, to taking out a loan from her father. Plaintiff was forced to delay retirement and work extra jobs in order to make ends meet while attempting to have her home repaired. We find this case in line with Vincent and find the trial court did not err in failing to grant a directed verdict on this issue.

Kenko also argues that the trial court should have granted a directed verdict on the loss of enjoyment of life damage award. “Loss of enjoyment of life ․ refers to detrimental alterations of the person's life or lifestyle or the person's inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury.” McGee v. A C And S, Inc., 05-1036, p. 5 (La. 7/10/06), 933 So.2d 770, 775. “[L]oss of enjoyment of life is clearly encompassed within “the loss of gratification of intellectual or physical enjoyment, or other losses of life or life-style” component of this court's existing definition of general damages.” Id. at 774. “[W]hether or not loss of enjoyment of life is recoverable depends on the particular facts of the case[ ] and should be left to the district court's discretion on a case-by-case analysis.” Id. at 779.

As Kenko points out, Plaintiff has not cited to any cases where loss of enjoyment of life damages were awarded in a property damage case. We also can find no cases where loss of enjoyment of life damages were awarded without a physical injury. Further, there is no evidence in the record of any activities that she formerly enjoyed that she can no longer do now that her home has been repaired. As such, we find that the trial court did err in failing to grant a directed verdict on the issue of loss of enjoyment of life damages.

IV. Kenko's Assignment of Number Four – Exclusion of Hurricane Damage Claim and Collateral Source

On September 2, 2025, the trial court rendered judgment on Plaintiff's Motion in Limine and excluded “[e]vidence and testimony regarding Plaintiff's homeowner's claim from Hurricanes Laura and Delta ․ as a collateral source[.]” The flood at issue in this case occurred in May 2017. Kenko sought to introduce evidence of Plaintiff's insurance claim, including photographs regarding Hurricane Laura-related damages, in order to mitigate Plaintiff's damages. Hurricane Laura made landfall in Southwest Louisiana on August 27, 2020. Hurricane Delta made landfall on October 9, 2020.

Motions in limine are reviewed under an abuse of discretion standard of review. Hatch v. Watkins, 24-42 (La.App. 3 Cir. 11/6/24), 411 So.3d 710, writ denied, 25-147 (La. 4/15/25), 406 So.3d 422. The trial court has great discretion when considering the motion. Id.

Kenko's argument for mitigation of damages is two-fold. First, Kenko submits that the evidence is necessary to mitigate Plaintiff's mental anguish and loss of enjoyment of life claims. We have already determined that the award of loss of enjoyment of life damages was in error. Kenko argues that the effects of Hurricane Laura contributed to Plaintiff's damages.

Next, Kenko argues that the hurricane claim is relevant to dispute Plaintiff's claims for damages to the interior of her home related to the May 2017 flood. Plaintiff's expert, John Garner, testified that, during the initial survey of Plaintiff's home, minimal damages to the interior were discovered. The damage estimate presented at trial included a complete restoration of the interior. Kenko contends that these damages were a result of the hurricanes rather than the flood, and it was error for the trial court to exclude the evidence of the hurricane claim.

Plaintiff notes that Kenko does not cite to any testimony by Plaintiff associating her mental anguish claim with anything other than the failure of the bulkhead. Plaintiff's testimony in this regard focused on the difficulty and worry she had prior to the hurricanes.

Plaintiff concedes that the damage to the interior of her home was greater than the original survey. However, Garner testified that he was not surprised by this because the damage would continue to worsen until the gap in the bulkhead was plugged. The repair to plug the bulkhead occurred over a year after the flood on July 22, 2018. Therefore, the interior of the home continued to deteriorate during that time.

Additionally, Plaintiff points out that the estimate to repair the interior of her home was prepared by Caleb Martin prior to Hurricane Laura's landfall. Plaintiff contends it is impossible that Hurricane Laura's landfall impacted the estimate.

The trial court excluded the evidence because it found it was a collateral source. We have previously discussed the collateral source rule while analyzing Kenko's Assignment of Error Number Two. A tortfeasor may not benefit from monies the plaintiff received from an independent source. Gregory, 425 So.3d 353.

Based on the foregoing, we find that the trial court did not abuse its discretion in excluding evidence of Plaintiff's homeowner's claim for Hurricanes Laura and Delta. The evidence was not needed to mitigate Plaintiff's mental anguish claim because the testimony was limited to her difficulty and worry after the flood. In addition, the estimate introduced by Plaintiff for the interior of the home was prepared prior to the hurricanes. Further, Kenko is not entitled to benefit from the monies Plaintiff received as a result of the hurricanes.

This assignment of error has no merit.

C. Plaintiff's Assignments of Error

I. Plaintiff's Assignment of Error Number One – Allocation of Fault

Plaintiff submits that the jury manifestly erred in assessing twenty-five percent (25%) of the fault to Plaintiff.

In Laysard v. State Department of Public Safety and Corrections, 07-78, p. 3 (La.App. 3 Cir. 8/8/07), 963 So.2d 1053, 1057–58, writ denied, 07-1821 (La. 11/9/07), 967 So.2d 511, a panel of this court explained:

The Louisiana Supreme Court, in Duncan v. Kansas City Southern Railway Co., 00-66, pp. 10-11 (La. 10/30/00), 773 So.2d 670, 680–81, set forth the standard for reviewing comparative fault determinations as follows:

This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded “the trier of fact is owed some deference in allocating fault” since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La. 1/16/96), 666 So.2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id.

Therefore, a trier of fact's allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. A trial judge's findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep't of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court's findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

In Tisdale v. Hedrick, 22-1072, p. 8 (La. 3/17/23), 359 So.3d 484, 490, the supreme court stated:

In determining the percentages of fault, the trier of fact must consider the nature of each party's conduct and the extent of the causal relationship between that conduct and the damages claimed. Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985). Consideration of several factors (“Watson factors”) aids in the determination of a proper degree of fault: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson, 469 So.2d at 974. These same factors guide an appellate court's determination as to the highest or lowest percentage of fault that could reasonably be assessed. Duncan [v. Kansas City S. Ry. Co.], 00-0066 at 11 [(La. 10/30/00)], 773 So.2d [670,] at 681.

With these principles in mind, we must determine whether the jury was manifestly erroneous in assigning twenty-five percent (25%) of the fault in this case to Plaintiff.

The overwhelming testimony and evidence in the record proves the bulkhead failed due to improper design and construction. Plaintiff's expert, Neil Hall, testified that the failure to use “rip rap” caused the bulkhead to fail because it would have prevented the soil from washing out from underneath. Once the bulkhead failed, the foundation and house were compromised. Further, he testified that the failure to compact the soil also contributed to the bulkhead collapsing.

Garner was retained as an investigator by FEMA and was qualified as an expert in this case. He testified similarly to Hall that the lack of rip rap and soil compaction caused the failure. He further found that the bulkhead was not tall enough. There were several other experts who testified to the same failures in the design and construction of the bulkhead by Kenko. None of these experts attributed any fault to Plaintiff.

Kenko argues that Plaintiff's percentage of fault was not in error because she failed to mitigate her damage. Mitigation is a doctrine that imposes a duty on an injured person to make a reasonable effort to minimize his damages. Boutte v. Ace Am. Ins. Co., 24-658 (La.App. 3 Cir. 6/18/25), 416 So.3d 774. In brief, Kenko submits that Plaintiff “could have limited her losses to the actual cash value of the house and bulkhead, approximately $208,000, had she moved on and found another home.” However, “Plaintiff chose to remain and spend excessively, compared to the value of the home and bulkhead.”

It is Kenko's contention that Plaintiff's recovery was limited to the cost of restoration to the original condition, not substantial improvement. We have already rejected this argument in our discussion of Kenko's Assignment of Error Number One regarding the property valuation jury charge. As we stated previously, Plaintiff made the repairs necessary to put her home back into a livable state, as required by the parish codes and FEMA regulations

Next, Kenko asserts that Plaintiff should be assessed fault because she did not remove the stabilization piling when the replacement pilings were installed. Beier testified that it was his recommendation to Plaintiff to do so. Kenko argues that failing to remove the temporary beam made the bulkhead structurally integral to Plaintiff's home.

Plaintiff counters that there is no testimony the bulkhead failed because the beam was attached. It is Plaintiff's position that she cannot be assessed with fault if the beam did not cause the damage. Plaintiff also points out that Beier's testimony is self-serving, and there is no other evidence that proves Plaintiff was supposed to remove the beam once the bulkhead was complete.

When applying the Watson v. State Farm Fire & Casualty. Ins. Co., 469 So.2d 967 (La. 1985) factors, we agree that the jury manifestly erred in finding Plaintiff at fault in this case. Assuming Beier's testimony to be true, Plaintiff, as a lay person, could not have understood the danger or risk created in leaving the temporary beam attached to the house piling. She hired Kenko to build the bulkhead based on their expertise in marine construction. It was not for Plaintiff to remove the temporary beam. It was Kenko's duty to remove it based on their knowledge and experience. This was part of the job Plaintiff hired Kenko to complete. For these reasons, we find the jury manifestly erred in allocating fault to Plaintiff.

II. Plaintiff's Assignment of Error Number Two – Mental Anguish and Loss of Enjoyment of Life Damage Awards

We have previously determined that Plaintiff is not entitled to recover for loss of enjoyment of life damages. Therefore, we will only discuss the mental anguish award. Plaintiff argues that she is entitled to an increase in this award based on the evidence adduced at trial. The jury awarded Plaintiff $7,500.00 for mental anguish.

Mental anguish is a general damage award. “General damages, are speculative in nature and, thus, incapable of being fixed with any mathematical certainty.” Thibeaux v. Trotter, 04-482, p. 3 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, 1130, writ denied, 04-2692 (La. 2/18/05), 896 So.2d 31.

General damages are reviewed for an abuse of discretion because the trial court “is in the best position to evaluate witness credibility and see the evidence firsthand.” Bouquet v. Wal-Mart Stores, Inc., 08-309, p. 4 (La. 4/4/08), 979 So.2d 456, 459. “The role of an appellate court in reviewing a general damages award is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact.” Cormier v. Citgo Petroleum Corp., 17-104, p. 4 (La.App. 3 Cir. 10/4/17), 228 So.3d 770, 776, writ denied, 17-2138 (La. 2/9/18), 237 So.3d 491. The trier of fact has great, even vast discretion in awarding general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

“Mental anguish and grief refers to the ‘pain, discomfort, inconvenience, anguish, and emotional trauma’ that accompany the injury. McGee [v. A C And S, Inc., 05-1036, (La. 7/10/06), 933 So.2d 770,] 775.” Rachal v. Brouillette, 12-794, p. 5 (La.App. 3 Cir. 3/13/13), 111 So.3d 1137, 1142, writ denied, 13-690 (La. 5/3/13), 113 So.3d 217.

Allison v. CITGO Petroleum Corp., 19-523, p. 7 (La.App. 3 Cir. 12/18/19), 286 So.3d 1152, 1161 (alteration in original), writ denied, 20-123 (La. 3/9/20), 294 So.3d 482.

When determining “whether a trier of fact abused its discretion in its award for general damages, an appellate court is to consider the particular facts and circumstances of a case, in conjunction with a review of prior awards. This applies to claims of excessiveness as well as insufficiency in an award.” Pete v. Boland Marine and Mfg. Co., LLC, 23-170, p. 10 (La. 10/20/23), 379 So.3d 636, 644.

Plaintiff directs the court's attention to Vincent, 244 So.3d 22, a case previously discussed while analyzing Kenko's Assignment of Error Number Three regarding the trial court's failure to grant a directed verdict on the issues of mental anguish and loss of enjoyment of life. The Vincent case involved the overflow of sewerage into the plaintiffs’ home. The trial court awarded $75,000.00 for their mental anguish ($35,000.00 for Mr. Vincent and $40,000.00 for Mrs. Vincent). The court pointed out that the plaintiffs witnessed and personally addressed the sewerage in their home. They were forced to stay in a hotel for two months while their home was being repaired. They testified to the stress this caused them and how bad the smell was.

The judgment in Vincent was rendered in March 2017. Adjusted for inflation as of the September 2024 trial date in the present case, using the U.S. Bureau of Labor Statistics Consumer Price Inflation Calculator,¹ the value of this award was approximately $97,000.00.1 Mr. Vincent's adjusted award would be approximately $45,000.00, and Mrs. Vincent's award would be approximately $52,000.00.

Plaintiffs also cite Enriquez, 264 So.3d 648, wherein the plaintiffs filed suit for damages to their house after a car crashed into it. The plaintiffs were awarded $13,500.00 for loss of use damages because plaintiffs were out of their home for four months. Plaintiff in our case attempts to equate this award with a loss of enjoyment of life. We have already determined that loss of enjoyment of life damages is not proper in this case. We note that the trial court awarded $3,500.00 in mental anguish, but the appellate court overturned the award. It found that plaintiff only suffered “the normal worry and consternation that accompanies damage to property.” Id. at 656.

In the present case, Plaintiff testified that she had to delay retirement due to the financial hardship that came with the failure of the bulkhead and the damage to her house. She testified that her plan was to retire in 2017; however, in order to make ends meet after the flood, she took on extra shifts and jobs. Plaintiff worked traffic at the Sasol Lake Charles Chemical Complex from 4:00 A.M. to 8:00 A.M., before she would go to her regular, full-time job as a probation and parole officer. She also worked off-duty security jobs to make extra money. She had to withdraw money from her retirement fund to pay for the repairs out of pocket. In addition, her father had to loan her money. She also cared for her elderly father during this time.

After a review of the record and a review of the jurisprudence, we find that the trial court abused its discretion, and Plaintiff is entitled to an increase in mental anguish damages. “Our goal is not to balance the number of high and low awards and arbitrarily adjust the jury's award to an average of these awards but to determine the highest reasonable award.” Pete, 379 So.3d at 650. Based on the facts of this case, we find the highest reasonable award for Plaintiff's mental anguish is $15,000.00. We, therefore, increase Plaintiff's mental anguish award from $7,500.00 to $15,000.00.

III. Plaintiff's Assignment of Error Number Three – Personal Liability of Glenn Beier and Kenneth Cooley

Plaintiff seeks review of the trial court's post-trial judgment, finding Beier and Cooley could not be held liable for their personal negligence as members of the limited liability company, Kenko. Specifically, Plaintiff argues that Beier and Cooley should be held personally liable under the negligent or wrongful act exceptions found in La.R.S. 12:1320 because they failed to procure the proper licenses and permits to perform the work on the bulkhead, which Plaintiff describes as criminal acts.

After the conclusion of the trial, Kenko, Beier, and Cooley filed a Motion for Judgment Notwithstanding the Verdict or for New Trial regarding several issues. One of the issues raised was protection of the L.L.C. as to Cooley and Beier. The trial court issued written reasons and judgment, granting the motion only on this issue and dismissing Plaintiff's claims against Cooley and Beier.

Louisiana Code of Civil Procedure Article 1811(F) provides that a JNOV may be granted on the issue of liability or damages or both.

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

Davis v. Wal-Mart Stores, Inc., 00-445, p. 4 (La. 11/28/00), 774 So.2d 84, 89 (quoting Smith v. Davill Petroleum Co., Inc., 97-1596, p. 4 (La.App. 1 Cir. 12/9/98), 744 So.2d 23, 26–27).

A two-part inquiry is required on appellate review of a JNOV. Id. First, the appellate court must determine “if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether or not to grant the motion.” Id. Next, “the appellate court reviews the JNOV using the manifest error standard of review.” Id.

The applicable law on personal liability of a limited liability member is found in La.R.S. 12:1320, which states:

A. The liability of members, managers, employees, or agents, as such, of a limited liability company organized and existing under this Chapter shall at all times be determined solely and exclusively by the provisions of this Chapter.

B. Except as otherwise specifically set forth in this Chapter, no member, manager, employee, or agent of a limited liability company is liable in such capacity for a debt, obligation, or liability of the limited liability company.

C. A member, manager, employee, or agent of a limited liability company is not a proper party to a proceeding by or against a limited liability company, except when the object is to enforce such a person's rights against or liability to the limited liability company.

D. Nothing in this Chapter shall be construed as being in derogation of any rights which any person may by law have against a member, manager, employee, or agent of a limited liability company because of any fraud practiced upon him, because of any breach of professional duty or other negligent or wrongful act by such person, or in derogation of any right which the limited liability company may have against any such person because of any fraud practiced upon it by him.

In Nunez v. Pinnacle Homes, L.L.C., 15-87 (La. 10/14/15), 180 So.3d 285, the plaintiff filed suit against a limited liability company and its member/manager in his personal capacity. The supreme court explained that “the personalities of an L.L.C. and its members are wholly separate by law.” Id. at 289. “[T]he legislature intended to shield individual members, managers, and employees of an L.L.C. from liability, albeit with certain exceptions.” Id. A member of an L.L.C. may only be subject to personal liability in “ ‘narrowly defined circumstances’ ” established by the legislature. Id. “Therefore, limited liability of an L.L.C. member shall be construed as the general rule and personal liability as an exception strictly framed by the law.” Id. at 290.

Plaintiff categorizes Beier's and Cooley's failure to pull the proper permits and licenses as criminal conduct for purposes of the statute. An investigator for the State of Louisiana verified that neither Beier nor Cooley had the proper contractor's license required to build the bulkhead. Cooley admitted to this fact as well. Plaintiff points out that performing construction work without a license is a criminal violation.

Cooley and Beier also failed to pull the proper parish permit required for the construction because the property was located in Flood Zone AE. Additionally, Cooley and Beier failed to apply for the required Army Corps of Engineer Permit. These failures equate to three criminal misdemeanors under the applicable laws.

Plaintiff submits that these failures arise to the level of a “negligent or wrongful act” under La.R.S. 12:1320(D) for which Cooley and Beier can be held personally liable. “Negligent or wrongful act” is not defined by the statute. The supreme court in Ogea v. Merritt, 13-1085 (La. 12/10/13), 130 So.3d 888, 900–enumerated four factors to consider when determining whether someone committed a “negligent or wrongful act”:

1) whether a member's conduct could be fairly characterized as a traditionally recognized tort; 2) whether a member's conduct could be fairly characterized as a crime, for which a natural person, not a juridical person, could be held culpable; 3) whether the conduct at issue was required by, or was in furtherance of, a contract between the claimant and the LLC; and 4) whether the conduct at issue was done outside the member's capacity as a member.

Regarding the first factor, the trial court found “there is no dispute that the conduct of Cooley and Beier – negligence in the construction of the subject bulkhead – can be fairly characterized as a traditionally recognized tort, which would typically weigh in favor of imposing personal liability on the part of Cooley and Beier.” However, the trial court ultimately found that “this factor weighs against a finding of personal liability on the part of Cooley and Beier.” In doing so, the trial court cited the supreme court in Ogea, for the proposition that “the member's tort duty embodied in La. R.S. 12:1320(D) must be something more than the duty inherent in the LLC's contract not to engage in poor workmanship[.]” Ogea, 130 So.3d at 902. The Ogea court explains “otherwise, the general rule of limited liability in La.R.S. 12:1320(B) would be negated in any case where an LLC had a contractual duty to the claimant not to engage in poor workmanship.” Id.

In Ogea, 130 So.3d at 905–06, when applying the first factor to the facts of the case, the supreme court explained:

Stated differently, a showing of poor workmanship arising out of a contract entered into by the LLC, in and of itself, does not establish a “negligent or wrongful act” under La. R.S. 12:1320(D). To hold that poor workmanship alone sufficed to establish personal liability would allow the exception in La. R.S. 12:1320(D) to negate the general rule of limited liability in La. R.S. 12:1320(B). Here, Ms. Ogea adduced evidence at trial equating Mr. Merritt's conduct with poor workmanship and showed only that his conduct was undertaken in furtherance of the legitimate goals of the contract with the LLC.

In the present case, the jury found “by a preponderance of the evidence that the defendants were negligent in building the bulkhead for Elizabeth Molbert[.]” The entire case hinged on Defendants’ poor workmanship. Therefore, we agree with the trial court that this factor was not met.

As to the second factor, the trial court found “that the actions of Cooley and Beier in performing the subject work without a license could be fairly characterized as a crime, which weighs in favor of finding personal liability.” The trial court came to this conclusion based on the evidence proving Cooley's and Beier's failure to acquire the proper licenses and permits. We agree. In Ogea, the supreme court found the second factor unmet. In doing so, the supreme court stated “there has been no suggestion that Mr. Merritt engaged in any criminal conduct, such as acting as a contractor without proper licensing.” Ogea, 130 So.3d at 906. As such, we find the criminal factor has been met in this case. However, the Nunez court cautioned “that a violation of a criminal statute, whether prosecuted or not, is but one factor to consider in determining whether an exception to the rule of limited liability would lie.” Nunez, 180 So.3d at 293.

Moving to the third factor, the trial court found “that the subject conduct of Cooley and Beier was in furtherance of the contract between Kenko and the Plaintiff.” The trial court did so even though “the contract was ultimately determined to be absolutely null due to the failure of Cooley and Beier to have the necessary licenses[.]” The trial court further stated, “The reason Cooley and Beier were engaged in the conduct at issue was to satisfy the contractual obligation of the LLC to the Plaintiff.”

The Ogea court explained that this factor arises from La.R.S. 12:1320(B) which states, “[N]o member, manager, employee, or agent of a limited liability company is liable in such capacity for a[n] ․ obligation ․ of the limited liability company.” Ogea, 130 So.3d at 896. “An obligation is a legal relationship whereby a person, called the obligor, is bound to render a performance in favor of another, called the obligee.” La.Civ.Code art. 1756. Based on the evidence adduced at trial, Kenko had an obligation to build the bulkhead and Cooley and Beier's conduct was in furtherance of that obligation. Therefore, we agree that “this factor weighs against a finding of personal liability.”

The last factor is “whether the conduct at issue was done outside the member's capacity as a member.” Ogea, 130 So.3d at 901. The trial court found that there was no evidence presented “that the conduct of Cooley and Beier was done outside of their capacities as members of the LLC. There were no personal duties owed to Plaintiff by Cooley and Beier outside of their capacity as members of the LLC.”

In Ogea, when discussing this factor, the supreme court gave examples of when it could apply. One example is “[i]f a member becomes a mandatary and breaches the member's duties to the principal, such a situation would weigh in favor of finding that the member acted outside the capacity of the LLC and, therefore, may be personally liable for the breach.” Id. at 904. Another example given is when “an individual fails to act ‘inside’ the structure of the business entity when confecting a contract.” Id. at 905.

We cannot find any evidence in the record to suggest that Cooley and Beier acted outside their capacity as members of the LLC. As such, we find this factor “weighs in favor of sustaining the general shield of limited liability.” Id. at 906.

After having reviewed the Ogea factors, we cannot say that the trial court was manifestly erroneous in granting Cooley and Beier's Judgment Notwithstanding the Verdict or for New Trial. “A showing of poor workmanship arising out of a contract entered into by the L.L.C., in and for itself, is insufficient to establish a ‘negligent or wrongful act’ arising under La.Rev.Stat. 12:1320(D).” Nunez, 180 So.3d at 293. Therefore, we find that Plaintiff has not proven that Cooley and Beier should be held personally liable in this case. This assignment has no merit.

DECREE

For the foregoing reasons, we hold that, under the Travelers Property Casualty Company of America commercial general liability policy, the “work product” exclusion bars coverage for damage to the bulkhead. We reverse that part of the trial court's judgment. We further find that the jury's award of $167,058.59 represents the repair/replacement costs of the bulkhead. We conclude that Plaintiff is not entitled to loss of enjoyment of life damages and reverse that portion of the judgment awarding same. We reverse the part of the judgment, allocating twenty-five percent (25%) of fault to Elizabeth Molbert. We assign no fault to Ms. Molbert. We amend the judgment to award damages to Ms. Molbert in the original amounts awarded by the jury: (1) $266,372.75 for damage to her home and (2) $167,058.59 for damage to the bulkhead. We amend the judgment to increase the mental anguish award to $15,000.00. The judgment is amended to reflect that Travelers Property Casualty Company of America and Kenko Bulkhead and Marine SVCS, LLC are assessed with one-hundred percent (100%) of the trial court costs, expert witness fees, and costs of the copies of the transcript. The judgment is affirmed in all other respects. Costs of this appeal are assessed equally between Travelers Property Casualty Company of America and Kenko Bulkhead and Marine SVCS, LLC.

AFFIRMED IN PART AS AMENDED; REVERSED IN PART; AND RENDERED.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

P.O. Box 16577

Lake Charles, LA. 70616

(337) 433-9403

Hon. G. Michael Canaday

Judge, 14 JDC

P. O. Box 3210

Lake Charles, LA 70602-3210

David John Calogero

David J. Calogero, APLC

202 Magnate Dr.

Lafayette, LA 70508

Van Clifton Seneca

Loftin & LeBlanc

113 Dr. Michael DeBakey Dr.

Lake Charles, LA 70601

Robert C. McCorquodale

States & Lavergne, LLC

600 Broad Street

Lake Charles, LA 70601

Seth Andrew Schmeeckle

Lugenbuhl, Wheaton, Peck

601 Poydras St., Ste. 2775

New Orleans, LA 70130

Heather N. Sharp

Lugenbuhl Wheaton Peck

601 Poydras St, Suite #2775

New Orleans, LA 70130

NOTICE OF JUDGMENT AND CERTIFICATE OF MAILING

NOTICE IS HEREBY GIVEN that the attached judgment and written opinion was rendered this date and a copy was mailed to the trial judge, all counsel of record and all parties not represented by counsel as listed above.

FOR THE COURT

Renée R. Simien Clerk of Court

FOOTNOTES

1.   CPI Inflation Calculator is located at https://www.bls.gov/data/inflation.calculator.htm, (last visited 10/29/2026).

GUY E. BRADBERRY JUDGE