Supplemental Brief — Olympia Roofing Co. v. Celotex Corp.

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SL1 PAGE1 2 SEP 21 1989

. JOSGPH F.S

NO. 88-2016 | — a

In The

Supreme Court of the United States

October Term, i988

—_————— hh i

OLYMPIA ROOFING COMPANY, AND

OLYMPIA COMPANY, INC., ET AL

Petitioners

Vv.

THE CELOTEX CORPORATION,

STANDARD-TAYLOR INDUSTRIES, INC.,

STANDARD ROOFING COMPANY OF

NEW ORLEANS, INC.,

ROBBINS TAYLOR, AND

PIERRE F. CARRTERE, ET AL

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ee ee ee ee

NO. 84-3181

USDC #CA 76-373-A

SUPPLEMENTAL BRIEF

IN SUPPORT OF ORIGINAL PETITION

FOR WRIT OF CERTIORARI

W. J. MANION

P. O. Box 1776, Slidell, LA 70459

(504) 649-4000, La. Bar No. 9089

Attorney for Olympia Roofing

Company and Olympia Company, Inc.

Petitioners

;

v

ot

i

LIST OF PARTIES AND OTHERS

Pursuant to Supreme Court Rules

21.1(b) and 28.1, counsel for the

Petitioners certifies that the following

list of persons or corporations either

have an interest in the outcome of this

case or were parties to the proceeding in

the Court whose judgment is sought to be

reviewed.

Petitioners/Plaintiffs/Appellants

. Olympia Company, Inc.

. Olympia Roofing Company

Ne

Non-Party/Petitioners' Counsel

3. W. J. Manion

Respondents/Defendants/Appellees

4. The Celotex Corporation

5. Standard-Taylor Industries, Inc.

6. Standard Roofing Company of New

Orleans, Inc.

7. Robbins Taylor

8. Pierre F. Carriere

Others

9. Johns-Manville Sales Corporation

10. Clerk, U.S. Civil District Court,

Eastern District of La.

11. Clerk, U.S. Court of Appeals’ for the

Fifth Circuit

12. Hon. Charles Schwartz, Jr.

i3. Jack N. Price

ii

TABLE OF CONTENTS

List of Parties and Others

Table of Contents

Table of Authorities

Reasons for Granting the Writ

Conclusion

Certificate

Appendix

Appendix A

ii

iii

Lii

Cases

—— -— -- —

Title Research Corp. v. Rausch

450 So.2d 933, (La. 1984)

Tolbird v. Cooper,

143 So.2d 81 (La. 1962, Note 4)

Statutes

———

18 U.S.C.A., paragraph 2071

LSA-Const. art. 12, paragraph 3

LSAPR.S. 44:31, :32(a), 2:33, and

234

1

NO. 88-2016

In The

Supreme Court of the United States

October Term, 1988

ee ee ee ee

OLYMPIA ROOFING COMPANY, AND

OLYMPIA COMPANY, INC., ET AL

Petitioners

Vv.

THE CELOTEX CORPORATION,

STANDARD-TAYLOR INDUSTRIES, INC.,

STANDARD ROOFING COMPANY OF

NEW ORLEANS, INC.,

ROBBINS TAYLOR, AND

PIERRE F. CARRIERE, ET AL

Respondents

SUPPLEMENTAL BRIEF

IN SUPPORT OF ORIGINAL PETITION

FOR WRIT OF CERTIORARI

a ee ee ee we oe

Plaintiff - petitioners respectfully

submit this Supplemental Brief in Support

of Petition for Writ of Certiorari. A

recent case, Standard Roofing Company of

New Orleans Vv. Elliot Construction

en a re ee ee ee ee ee ee ee

Company, Inc., et al, 535 So.2d 870

2

(La.App. 1 Cir. 1989); writs denied

February it3 1989, supports this

Supplemental Brief.

REASONS FOR GRANTING WRIT

The defendant-respondents cited in

this application for Writ of Certiorari

are the same defendants that spawned the

original litigation in question, docketed

as No. 76-373A, United States District

Court, Eastern District of Louisiana.

Aforesaid defendant-respondents have

come to court with unclean hands and have

been adjudged to be equally at fault in

the substandard work performance causing

a leaking roof on Mini Dome _ based on

faulty specifications of manufacturers.

I.

Petitioners (hereinafter ''Olympia'"')

were designated by architect in Fall of

1974 to evaluate the leaking new roof

(Chem Ply) as_ installed by Standard

3

Roofing Company of New Orleans, Inc.

(‘'Standard") on Louisiana Mini Dome,

Southern University, Baton Rouge,

Louisiana ("Dome"), and determined the

cause of roof's wrinkled appearance.

Further, Olympia was requested to submit

a proposal to remove and re-install a new

Chem Ply roof on Dome.

Architect and general contractor

("Elliot") were told by Olympia that

dampness’ existed within erected, but

incomplete, Dome structure, and _ that

internal air conditioning was required to

dry out building before a new roof could

be installed. To have a_ functioning air

conditioning system, four (4) low profile

canopies attached to Dome had to _ be

completed. This Olympia did for the sum

of less than $41,000.

Olympia was not awarded contract to

re-install Chem Ply roof. However, in

anaes esac

4

the course of re-roofing Dome, it was

proven that roof could not be applied to

wet deck without a wrinkled appearance

unless air conditioning system was

operating (Appendix A-42, Note 5). Based

on this construction procedure alone,

none of the parties to litigation cited

in 535 So.2d 870 (supra) wanted Olympia

on the construction site or in court as

an expert.

il.

Without records and exhibits placed in

registry of Court available to plaintiff-

petitioners at district and appellate

levels, petitioners herein could not

prevail successfully and avoid Summary

Judgment dismissal. In compensation and

reconvention cases, Louisiana observes

the Latin maxim: Spoliatus Debet Ante

Omnia Restituti: "a party despoiled

[forcibly deprived of possession] ought

5

first of all be restored", Tolbird v.

Cooper, 143 So.2d 81 (La. 1962), Note 4.

Since Court retained possession of

exhibits and refused to release same,

petitioners were forcibly deprived of

possession, and the spoilation principal

and maxim should be applied in this case.

Conversely, Federal government

protects documents’ in their custody from

concealment, destruction or _ removal (18

USCA, paragraph 29071), but there is no

legal remedy, except mandamus, for the

general public if abused by illegal

seizure or concealment.

Finally, Olympia had a constitutional

right of access to exhibits in custody of

clerk of Court. Title Research Corp. v-

Rausch, 450 So.2d 933; LSA-Const. art.

12, paragraph 3; LSA-R.S. 44:31, 32(a),

33, O08 34: LSAeC.C Ps RPe aoe

6

CONCLUSION

Olympia was used by Elliot to

determine’ the errors committed, and

suggested corrections needed, relative to

leaking wrinkled Chem Ply roof installed

by Standard on Dome. None of the parties

cited in 535 So.2d 870 found any comfort

in Olympia's recommendations, yet those

suggestions were ultimately fulfilled.

The conspiracy of Standard and

Celotex, coup led with constitutional

violations by judiciary personnel in

denying Olympia access to exhibits placed

in registry of Court denied Olympia an

opportunity to prove its anti-trust case

as originally filed.

For the foregoing reasons, it is urged

that Writ of Certiorari he issued;

reversal and remand of this litigation to

_ Oooo

District Court is urged by plaintiff-

petitioners herein.

Respectfully submitted,

\

W. J. MANION

P. O. Box 1776

Slidell, LA 70459

(504) 649-4000

La. Bar No. 9089

Attorney for Plaintiff-

Petitioners

A copy of this Supplemental Brief in

Support of Original Petition for Writ of

Certiorari has been mailed to counsel for

parties herein.

W WN

W. J. MANION

|

A-1

APPENDIX A

535 So.2d 870

STANDARD ROOFING COMPANY OF

NEW ORLEANS

Vv.

ELLIOTT CONSTRUCTION

COMPANY, INC., et al

No. 87 CA 0506

Court of Appeal of Louisiana,

First Circuit.

August 22, 1988.

As Amended Nov. 30, 1988.

Writs Denied Feb. 17, 1989.

Roofing subcontractor brought

action against general contractor to

recover balance owed on subcontract to

place roof on mini dome of public

building. General contractor reconvened

against subcontractor and State based on

necessity of replacing first roof and

associated delays. Subcontractor filed

third-party demands against architect,

+ aie

A- 2

manufacturer of roofing system, and

State. Architect filed third-party

demand against State and manufacturer.

Other demands were filed by various

parties. The Nineteenth Judicial

District Court, Parish of East Baton

Rouge, C. Lenton Sartain, Jr. ad hoc,

rendered judgment against subcontractor

and in favor of general contractor, and

claims against other parties were

dismissed. Subcontractor appealed. The

Court of Appeal, Carter, J., held that:

(1) subcontractor's substandard work

performance was primary cause of leaking

roof; (2) manufacturer that required

continuous base sheet design for roof was

responsible for wrinkled appearance; (3)

leaks and wrinkles would have separately

required replacement of roof; and (4)

Subcontractor was entitled to

contribution from manufacturer.

A- 3

Affirmed in part, reversed in

part, and rendered.

1. States - 108 1/2

Evidence established that roofing

subcontractor's substandard

performance was primary cause of

leaking roof on mini dome of state

building and that it required

replacement of entire roof, and, thus,

subcontractor was required to bear

burden of damages incurred due to

leaking roof, even though architect's

design defects and contractor's

construction defect contributed to

leaking problems in valley;

subcontractor failed promptly and

properly to seal laps, used wet

materials, and improperly stored roof

covering; and no evidence’ showed

amount of damages related only to

problems in valley caused by errors

A- 4

attributable to architect and general

contractor.

a. States - 108 1/2

Evidence established that use of

continuous base sheet over tectum

boards caused wrinkles in roof

covering of mini dome on state

building and that manufacturer of

sheet was responsible for wrinkled

roof and resulting costs incurred by

general contractor, even if general

contractor's negligent storage of

tectum caused need to apply continuous

base sheet; manufacturer required

continuous base sheet design over

entire roof whether or not factory-

applied felt and tectum had to be

removed.

3. States - 104

Architect that contracted only

with State had no contractual

a §

obligation to general contractor or

roofing subcontractor.

4. Torts - 20

Project architect may be subject

to tort action by subcontractor that

is not in privity, if there is breach

of duty owed independently of contract

between owner and architect.

S. Negligence - 10

Architect is deemed to know that

services are for protection of owner's

interest, as well as protection of

other third parties who have _ no

supervisory power whatsoever and must

rely on architect's expertise in

providing adequate supervision, plans,

and specifications.

6. Negligence - 1

Architect that allowed continuous

base sheet design on mini dome of

state building and thereby contributed

A- 6

to wrinkled roof did not breach any

duty to general contractor and roofing

subcontractor, where architect relied

On procedure established by

manufacturer of base sheet and

approved by contractor, and where

architect never issued written change

order adopting continuous base sheet

design as part of plans and

specifications.

Contracts - 181, 196

Obligations of roofing

subcontractor and manufacturer of

roofing system were several, and,

thus, subcontractor and manufacturer

did not have any solidary obligation;

subcontractor was bound to perform

subcontract in workmanlike manner; and

manufacturer was bound to_ provide

roofing system that was appropriate

for mini dome and to provide proper

|

A- 7

installation instructions. LSA-C.C.

art. 1787; art. 2078 (Repealed).

8. States - 109

Evidence established that leaks

and wrinkled appearance would have

separately required replacement of

roof on mini dome of state building,

and, thus, roofing subcontractor which

Wiis Semponatiin for leaks and roofing

system manufacturer which was

responsible for wrinkled appearance

were obligated to pay for cost of

repair.

9. Contribution - 6

Roofing subcontractor which was

responsible for leaking roof on mini

dome and had paid out total obligation

to repair it was entitled to

contribution from roofing system

isdiadaelabed sain was responsible for

wrinkled appearance, where leaks and

iii. wee .

——

A- 8

wrinkled appearance would have

separately required replacement of

roof. LSA-C.C. arts. 1787, 1804;

arts. 2078, 2104 (Repealed).

10. Indemnity - 13.3

Roofing subcontractor which was

responsible for leaks in roof of mini

dome was not entitled to indemnity

from roofing system manufacturer for

attorney fees and costs. LSA-C.C.

art. 2545.

si Contracts - 320

Roofing subcontractor was not

entitled to recover amount due under

contract with general contractor for

public building, where Tiieentractor's

work caused leaking roof and was so

defective as to be practically

useless.

is States - 109

Evidence established that costs

A-9

to replace leaking and wxivjen roof

on mini dome of public building,

except repainting of tectum due to

water stains, were caused by roofing

subcontractor that was responsible for

leaks and roofing system manufacturer

that was responsible for wrinkles,

and, thus, subcontractor and

manufacturer were solidarily liable

for all amounts other than cost to

repaint tectum deck.

Jack Alltmont, New Orleans, for

plaintiff-appellant Standard Roofing Co.

of New Orleans.

Douglas Kewley, Metairie, for third

party plaintiff-appellant Celotex Corp.

John C. Miller, Baton Rouge, for third

party defendant-appellant August Perez

and Associates.

A-10

Gordon A. Pugh, -Baton Rouge, for

defendant-appellant Elliott Const. Co.

Daniel Atkinson, Baton Rouge, for

third party defendant-appellant U.S.

Fidelity and Guar. Co.

Robert E. Redmann, New Orleans, for

defendant-appellee State of La.

Ben Lightfoot, Baton Rouge, for

defendant-appellee National Gypsum Co.

Before WATKINS, CARTER and FOIL, JJ

CARTER, Judge.

This is a suit arising from a

defective roof installed pursuant to a

construction contract. Plaintiff, the

roofing subcontractor, appeals the trial

court's decision requiring it to pay

$309,044.00 to the general contractor and

dismissing its third party demands.

The parties to the appeal are: (1)

the State of Louisiana (State), the owner

A-11

of the building under construction; (2)

Standard Roofing Company of New Orleans,

inc. (ieinaeees plaintiff and roofing

subcontractor; (3) August Perez and

Associates, Inc. (Perez), the project

architect; and (4) Celotex Corporation

(Celote»a), the supplier of the roofing

systen. Elliot Construction Company

(Elliot), the general contractor, also

appealed, but then settled its claims

with Standard and Standard's’ surety/

insurer, United States Fidelity and

Guaranty Company (USF & G). Elliot and

USF & G assigned to Standard all rights

on appeal against third parties.

The State contracted with Elliot, as

general contractor, and Perez, as

architect, for the construction of the

Community Educational Assembly and

Athletic Center (minidome) on the Baton

Rouge campus of Southern University.

|

A-12

Elliot subcontracted with Standard to

provide the labor and materials necessary

to install the roofing system on the

domed roof. Standard purchased the

roofing system materials specified in

Perez's plans and specifications from

Celotex.

After Standard applied the recommended

roofing system to the major portion of

the domed roof, Perez rejected Standard's

work for failure to follow plan

specifications. The rejection was based

on two problems - the roof's failure to

be watertight and its wrinkled

appearance.

A second roofing subcontractor was

hired and applied cCelotex's roofing

system following all plan specifications.

Prior to completion, it became apparent

that the second Foor, although

watertight, also had an unacceptable

A-13

wrinkled appearance. After changes were

made in installation procedures, the

roof's appearance was deemed acceptable,

and it was completed.

Initially, Standard sued Elliot and

Aetna Casualty and Surety Company

(Aetna), the insurer of Elliot's

construction bond, for the $81,886.60

balance allegedly due under its roofing

subcontract. Elliot reconvened against

Standard and the State seeking damages

based on the necessity of replacing the

first roof and the associated delays.

Standard filed thirec party demands

against the following parties: (1) the

project architect, Perez; (2) National

Gypsum, the manufacturer of the _ roof

decking referred to as tectum; (3)

Celotex, the supplier of the roofing

system; and (4) the State. Elliot filed

a reconventional demand against Standard

|

DB bts nti. <

A-14

and USF & G and third party demands

against: (1) the State; (2) National

Gypsum; 1 and (3) Celotex. Perez filed a

third party demand against the State and

Celotex. Numerous other demands were

filed by the various parties.

The district court rendered judgment

against Standard and in favor of Elliot

in the amount of $309,044.00 for damages

caused by Standard's breach of the

roofing subcontract. USF & G was found

solidarily liable with Standard for the

limits of its performance bond. The

claims against all other parties were

dismissed. Standard appeals the judgment

in favor of Elliot, as well as the

dismissal of-its original action and

1 All claims against National

Gypsum were dismissed during the trial.

“ } eb

third party demands.“ Standard is also

asserting the rights of Elliot and USF &

G obtained through assignment, against

the State and Celotex. Standard seeks to

coun in whole, or in part, the amounts

for which it was cast by the trial court,

together with _ amount allegedly due

under its subcontract. Additionally,

Standard seeks reimbursement of

attorney's fees and costs from Celotex

based upon the redhibitory defects in the

roofing systen.

The issues on appeal are as

follows:

(1) The parties responsible for

paying the costs incurred in replacing

the roof and the basis of that

responsibility;

2 Elliot and USF & G also filed

appeals.

A-16

(2) The damages incurred in

replacing the roof; and

(3) Standard's right to

reimbursement for attorney's fees and

costs from Celotex under the theory of

redhibition.

FACTS

In February of 1972, the State of

Louisiana, through the Capital Outlay

Budget Board, Division of Administration,

(State) entered into a contract with

Elliot for the construction of the

minidome. The minidome was described by

the trial judge in his written reasons

for judgment as follows:

The Mini-Dome is a large

circular building. The dome affect

(sic) is created by the roof

structure. It consisted of thirty-

two (32) metal beams, also referred

to as ribs or rib beams. These

A-17

beams extended from a tension ring

just below the top of the interior

side of the exterior wall upwards

to a compression ring at the top of

the dome. A series of metal

purlins between each rib lent

lateral support to the rib beams

and the two constituted the frame

work upon which the decking and the

roofing material were to be placed.

The rib beams each consisted

of six sections fabricated end to

end to give the beam the desired

arch. With the beams all in place

and viewed from the top, the

corresponding end of each section

of each beam formed a series of

rings and were referred to as such.

There were seven such rings,

commencing with the compression

ring at the top (Ring 1) down to

ib a NR rt A kL a lh ChE eh

.

eM ye Am

A-18

the end of the last section of the

beam at the interior wall (Ring 7).

The area at Ring 7 and the interior

wall throughout the circumference

of the building was referred to as

the valley. The area between each

rib beam was referred to as a bay

of which there were thirty-two

(32). At the bottom of the

alternate bays were located

downspouts. The roofing material

was installed in horizontal fashion

in each bay from the bottom of the

dome to the compression ring.

According to Perez's plans, a product

known as "tectum" was laid on top of the

beams and purlins by Elliot to form the

roof deck. Tectum, which is manufactured

by National Gypsum, is a composite board,

resembling shredded wheat, and composed

of shredded wood-type material compressed

A-19

into boards and cemented together. It is

approximately three inches thick and, as

per the dome plans, came with a factory-

applied felt (roofing paper) on what was

to be its outer surface.

Standard was then to glue the roof

covering, known as "Chem-Ply", to the

tectum's factory-applied felts in

horizontal strips with an epoxy adhesive.

Chem-Ply, which is manufactured by

Celotex, is a white, vinyl-like sheet

material with a foam-backing. It was

purchased and provided by Standard.

While the minidome was in the design

phase, a coneeuaabative of Celotex

contacted Perez and suggested the use of

Chem-Ply over a tectum base for the roof

of the minidome. The correspondence

further touted Chem-Ply's performance in

handling expansion, contraction, and

other distortions affecting roofing

A-20

systems. This system was subsequently

adopted by Perez, and. Celotex's

representative worked with Perez in

arriving at an overall specification for

the deck assembly.

The job specifications called for the

contractor to obtain from Celotex a

roofing surface guarantee or bond under

which Celotex would guarantee against

defects of materials and workmanship and

Maintain the roof in a watertight

condition for ten years. As a result,

Celotex had to be satisfied with the

quality of the materials and workmanship

so that it would ultimately issue the

bond.

Elliot began construction on the

minidome in March, 1972. Standard was

not called to begin work on the job until

the summer of 1974. An initial meeting

was held on May 30, 1974, and attended by

A-21

representatives of Elliot, Standard, and

Celotex. At that meeting it was noted

that Elliot had stored about 25% of the

tectum directly on the ground, covered by

visqueen. The substantial humidity

underneath the visqueen had caused the

loosening and wrinkling of the factory-

applied felt on some of the tectum. All

parties agreed that the tectum could not

be used in its deteriorated condition.

Celotex advised that the tectum should

be replaced or that the wrinkled,

factory-applied felt should be removed

and a continuous base sheet of #33 coated

felt applied to the tectum with an SIS

adhesive.? The Chem-Ply would be applied

3 The new base sheet was a

Significant change in that it would be

continuous from one plank of tectum to

the next, bridging the joints between the

tectum boards. The testimony revealed

that in 1971, Celotex began requiring the

use of a continuous base sheet on all of

its jobs. However, it did not relate

A-22

to the base sheet with an epoxy adhesive.

Celotex further noted that the hase sheet

would protect the tectum, as well as

minimize surface irregularities. See

Appendix A attached. Standard submitted

an additional cost estimate for

$14,050.00 to apply the continuous base

sheet, and Elliot paid for the additional

work.

On July 23, 1974, Standard commenced

work on the job. At that time, Elliot

had already laid tectum in eight bays.

Standard split its crews into two groups

- one to apply the base sheet to the

tectum and one to apply the Chem-Ply to

the base sheet. Elliot decided to leave

open the compression ring, a twenty (20)

foot diameter circle in the center of the

this change to anyone involved with the

minidome project until it was discovered

that the tectum felts were unusable.

A-2 3

dome, for light and ventilation purposes.

The trial judge described the method

of applying the Chem-Ply as follows:

The Chem-Ply arrived in boxed

rolls. It is 36 inches wide and

generally 71 feet in length,

although some Chem-Ply arrived in

varying lengths. The foam backing

covers only 34 inches leaving two

inches for overlapping of the

previously laid sheet. The

overlapping edge is referred to as

the selvage lap. There is no

overlapping of the Chem-Ply where

the end of one sheet joins the end

of the next sheet. These are

referred to as butt joints. Once

the Chem-Ply is laid over the field

epoxy, a "Tarzan" roller is used to

add the epoxy-coated base sheet. A

caulking adhesive is used to seal

A-24

the selvage laps and to adhere a

four inch flashing tape over the

butt joints. The selvage lap is

Wiped clean of any foreign material

with a special solvent, allowed to

dry, the caulking adhesive is

applied beneath a two inch lap with

a gun designed for this purpose,

and the lap rolled with a wallpaper

roller to insure complete

embedment. The four inch flashing

tape is adhered to the butt joints

in similar fashion. After the

entire roof is covered, it is

mopped with a surface coating to

remove any marks and to give it a

fresh appearance. This surface

coating material has no

waterproofing capacity.

On August 6, 1974, the application of

the Chem-Ply roofing was) about

55

2

<)

A-25

completed. Ron Pilgrim, the Construction

Administration for Perez, stated in his

report for that day that the quality of

the installation did not appear

acceptable and made references’ to

wrinkles in the Chem-Ply. He further

indicated that the Chem-Ply roofing

material was being stored on the roof by

Standard and was subjected to constant

wettings by rains, even though the job

specifications required that it be stored

in a dry, cool place.

A report of Joel Grayson of the

Facility Planning and Control Department

of the State, dated August 14, 1974, also

indicated that workmanship on the roof

seemed to be lacking and that there were

many “ridges, wrinkles and areas not

glued down." By that date, Standard had

roofed 29 of the 32 bays.

On August 29, 1974, a roof inspection

A-26

meeting was held on the roof to discuss

specific problems, including: (1) bulging

base sheet at the tectum joints; (2)

water trapped under Chem-Ply roofing; and

(3) Chem-Ply being installed in a wet

condition. The parties viewed workers

rolling the Chem-Ply seams in an effort

to force out the water underneath.

Standard's representative contended that

the expanding tectum was causing the

bulging of the newly applied felts at the

tectum joints.

Celotex's representative, Coleman

Curtis, stated that the water under the

Chem-Ply would continue to evaporate at

the open-end seams and that the remaining

water would be released if the selvage

seams were turned back, dried and sealed.

he further indicated that the balance of

moisture left in the Chem-Ply would be

vented to the interior of the structure

A~<7

"because of the nature of the felts." He

felt that the water was not a probiem and

disputed that the cChem-Ply was. being

installed while the back foam was wet.

Celotex and Standard's representatives

asked that they be allowed to finish the

job before any final decision was made

regarding rejection of the roof. Perez

responded that the job would continue,

but that the roof would not be accepted

with the various bulges and wrinkles.

On September 4, 1974, Perez's

representative notified Elliot that it

was withholding payment of $47,509.00

related to roof work. On September 13,

1974, Elliot informed Standard that

payment would not be forthcoming until "a

resolution of the existing problem with

your work is reached."

On September 19, 1974, Ron Piigrim and

Robert Landry (Perez), Cnarles Peterson

A-28

(Standard), Pete Torrence (Elliot), and

Coleman Curtis (Celotex) inspected the

root. Pilgrim made the foilowing

notations in his report: the roof was

still unsatisfactory; there was a large

bubble under the roofing about 2' x 2' in

size; the tectum was flat but the base

sheet had buckled; there was very little

adhesion between the felt and tectum;

inspection holes showed moisture trapped

in the tectum and on the underside of the

Chem-Ply. The group resolved that

Standard would remove the ridges in the

roof in a sample area by cutting them out

and patching the Chem-Ply roofing over

the cutout portions. That area would

then be reinspected.

On September 23, Pilgrim noted a

number of piaces where brownish water was

seeping from between the horizontal laps

and trickling down the surface of the

2

A-29

roof. He further noted that the joints

in the valley were in poor condition-

loosening and cracking. The condition of

the roof in September was substantiated

by the testimony of Robert Landry, a

field representative for Perez, and

Ronald Robert, whose company was employed

by Elliot to expedite the minidome

project.

On September 25, 1974, another meeting

was held with representatives from the

State, Elliot, Standard, Celotex and

Perez. Elliot instructed Standard to

make an official reply as to what action

it and/or Celotex would take to resolve

the problems. Following the meeting,

Standard asked Celotex for technical

information with which it could respond

to Perez's objections. W.W. LeGrow of

Celotex responded that he would obtain

technical assistance and also noted,

A-30

referring to the wrinkles, that Chem-Ply

always follows the outline of the

substrate to which it is attached.4 He

further stated that the completed coated

section of the roof looked good from the

ground.

On or about October 4, 1974, Perez

confirmed the rejection of the roof due

to Standard's failure to follow

application specifications. It required

that corrective action be taken by

October 15, 1974, and continued until the

roof was made acceptable. Standard did

not man the job after October 2, 1974,

and responded to the rejection with

correspondence indicating that the

4 celotex later responded that it

had no responsibility for the job because

the primary complaint was with Chem-Ply's

appearance and that it had warned the

parties that the use of the continuous

base sneet would not completely eliminate

"telegraphing or buckling of felt skins

and ridging at the Tectum joints."

A-31

problem was with the "deck under-layment"

rather than its work. It further stated

that the roof was applied in accordance

with specifications, Celotex found it had

met all bonding requirements, and Elliot

was in default of its contract with

Standard.

A final effort to resolve the problem

was made at a meeting held on November

nas. A874. Standard's representative

stated that it would cut out the wrinkles

at the joints to resolve the problem with

the Chem-Ply's appearance. The State,

Perez, and Elliot agreed to give Standard

the opportunity to correct the problems.

Following the meeting, representatives

from the State, Celotex, Perez, Elliot,

and Standard inspected an area where the

joints had previously been cut, the base

sheet removed, and the Chem-Ply glued

directly to the tectum. Those joints

A-32

remained in acceptable condition. The

joints covered by base sheet and Chem-Ply

continued to bulge upward. The State's

representative indicated that if all

bulges were cut, the entire roof would be

patched at the perimeter of every tectum

sheet. The State decided it would not

accept a new roof which was patched to

that extent.

On November 15, 1974, Perez formally

notified Elliot that the roof remained

unacceptable and that the proposed

cutting and patching of the vertical

wrinkles would not render it acceptable.

The notice further stated that’ the

building continued to sustain damage as a

result of water entering at various

points. Elliot advised Standard of that

decision on November 21, and Standard

never returned to the job.

In December, 1974, Elliot closed the

A-33

compression ring with tectum and covered

the tectum with visqueen and/or loose

roofing paper held down with boards and

other items. Standard then offered to

complete the roof by applying Chem-Ply in

the compression ring area. However,

Standard's offer was rejected, and

Standard filed suit.

In a report dated December 24, 1974,

Robert Landry (Perez) reported as

follows:

The majority of the dome roof has

been rejected because of wrinkles,

there are some possible leaks in

the sloped portion of the roof

however the main problem as far as

water entering the building is at

the valley where the lapjoints of

the Chem-Ply were made when the

material was yet (sic), there was

poor adhesion and there are,

A-34

consequently, leaks.

In his reports of January, February, and

March, 1975, he noted that the temporary

visqueen covering over the compression

ring was leaking substantially and raised

the possibility that water was running

into the old tectum.

Elliot, meanwhile, hired Logan Donnel,

an engineer specializing in roof

problems. Mr. Donnel first visited the

job site on March 4, 1975, in an attempt

to find a solution that would satisfy the

requirements of Elliot, the State, and

Perez and meet the bonding requirements

of cCelotex. He was informed that the

roof had been rejected due to its

appearance and that there were concerns

regarding the ability to make the roof

watertight.

Mr. Donnel found as general and

typical conditions throughout the _ roof

aaa

A-35

surface unsealed laps, water entrapped

between the Chem-Ply and the base sheet,

delamination of foam backing, and

wrinkles along the tectum joints. He

made seven test cuts at various areas of

the roof and in each one found that there

was water in the foam backing of the

Chem-Ply. The adhesion of the base sheet

to the cChem-Ply varied from good to

nonexistent. In his opinion, the

variations in the adhesion indicated

improper workmanship.

The area underneath the valley

contained the most serious leaks, but

there were other isolated spots in the

dome itself and minor leaks around the

compression ring. He felt any attempt to

correct the superficial defects, such as

sealing laps, would result in further

deterioration and delamination. He

concluded that the tectum decking

A-36

remained in satisfactory condition, but

the existing base sheet and Chem-Ply

would have to be removed and replaced.

Donnel felt that significant, systematic

wrinkling around the tectum edges was

inevitable due to the design used - a

base sheet adhered to tectum.

Standard hired its own expert, W.J.

Evans, in April, 1975. He initially

inspected the roof on May 12, 1975, and

found the valley to be in poor condition

with standing water and some debris. He

estimated that there were fifteen to

twenty laps on the domed portion of the

roof which were not completely sealed and

were emitting water.

On July 18, 1975, he made his first

comprehensive inspection of the entire

roof. After an additional inspection on

August 7, Evans concluded that’ the

principal problems were in the valley and

A-37

could be corrected and that it was

possible and practical to repair the roof

and restore it to worthwhile service.

In September, 1975, Evans was present

during the removal and replacement of

Standard's roof. He saw considerable

water and moisture at the top of the roof

and more than he expected in the roof's

sloping sides. He testified that as the

workers progressed down the roof, the

amount of moisture coming off with the

materials was increasing until they

reached the bottom of the roof where the

materials were actually wet.

Evans opined that inadequately or

improperly sealed laps could not have

caused the amount of moisture he saw in

the initial roof. He theorized that the

moisture resulted from water vapor rising

from the building, through the tectun,

and condensating on the underside of the

A-38

Chem-Ply. Both experts agreed that the

open compression rings, except for its

immediate area, was not the source of the

moisture found beneath the Chem-Ply in

the remaining areas of the _ roof's

surface.

Meanwhile, Elliot was looking for a

subcontractor to re-roof the minidome.

On June 30, 1975, Elliot contracted with

Sechrist-Hall Company of Corpus Christi,

Texas (Sechrist-Hall), to perform that

service.

A preconstruction meeting for the re-

roofing project, attended by all parties

to this suit except Standard, was held on

September 17, 1975. The parties

discussed the plan for the application of

the new roof under which all of the felts

and Chem-Ply on the dome were to be

removed. Elliot was responsible for

repairing and replacing any damaged

i

A-39

tectum.

Celotex recommended the application of

a parge coating to smooth the bare

tectum, followed by SIS adhesive and a

base sheet. The recommended base sheet,

unlike the one applied by Standard, was

non-organic felt and was heavier and made

of a better quality. Celotex stated the

new base sheet was also less susceptible

to dimensional changes. After

application, the base sheet was to remain

uncovered for one week, by Celotex's

orders, to allow the adhesive solvents to

dissipate. Sechrist-Hall was then to

apply the cChem-Ply using an epoxy

adhesive and to seal ail laps at the end

of each day.

At the meeting, Celotex's production

manager stated that the base sheet was

needed because it provided a temporary

roof to protect the tectum until the

A~-40

Chem-Ply was applied, that it provided a

permanent two-ply, rather than one-ply

system, and that it smoothed out existing

irregularities in the deck thereby

providing a superior finished aesthetic

effect.

On September 23, 1975, Sechrist-Hall

commenced the re-roofing job. After the

application of Chem-Ply to two and one-

half rings, wrinkles began to appear on

the new roof despite Sechrist-Hall's

undisputed exemplary workmanship. On

October 21, Sechrist-Hall was told to

suspend the work until the problem could

be resolved.

In an attempt to remedy the problem,

Perez instructed Sechrist-Hall to cut the

base sheet in a sample area at each

horizontal and vertical joint of the

tectum boards, thereby creating a gap in

the base sheet outlining each board.

———————————

A-41

Pursuant to Perez's instructions, the

Chem-Ply was glued directly to the tectum

in the gap. On November 7, the test area

was deemed acceptable by Perez and the

State, and on November 21, Sechrist-Hall

was allowed to resume its work. The

design change proved satisfactory, and

the second roof was completed on February

2, 1976.

There were several significant changes

in the re-roofing procedure, besides the

cutting of the base sheet and the

addition of the parge coating and non-

Organic, higher quality base sheet.

Those changes included: (1) increasing

the slope in the valleys to correct the

problem of standing water; (2) adding a

double layer of roofing paper over the

concrete in the valley to protect the

Chem-Ply from moisture in the concrete;

(3) the use of an epoxy adhesive under

A-42

the base sheet in the deck of the valley;

and (4) application of the roofing system

while the air conditioner was on, which

reduced the amount of humidity in the

air.°

During the construction of the

minidome, Celotex was having problems

with Chem-Ply on other jobs. Due to

abnormally high complaints, in 1974 the

research department of Celotex's parent

company began investigating the problems.

Research memoranda from 1974 indicate

that insufficient manufacturing processes

resulting in premature delamination of

the foam backing and a shortened lifetime

Or resiliency. As a result of the

° The wrinkles on the re-roofing

project appeared the day after the

building's air conditioner was’ turned

off. The wrinkling reportedly stabilized

once the air conditioner was reinstated.

The air conditioning was not in use

during the initial roofing job.

A-43

studies, in March of 1975, Celotex agreed

to withdraw the entire Chem-Ply system

from the market. Celotex manufactured a

special order for the re-roofing project.

TRIAL COURT'S DECISION

The trial court rendered judgment in

favor of Elliot and against Standard in

the amount of $309,044.00.® The award

was made up of the following specific

items:

(1) Remove roofing and

repair deck - $ 25,453.00

(2) Sub-contractor's

charge to replace

the roof - $138,589.00

(3) Roofing consultants - S$ 17,581.00

6

The court also granted Standard's

third party demand against USF & G for

$145,002.00, the amount allowed under the

comprehensive general liability policy

provided Standard and for $30,449.61 in

legal defense costs owed under the

policy. Due to the settlement, USF & G's

liability is not at issue on appeal.

A-44

(4) Painting tectum deck - $ 19,247.00

(5) Time related costs - $108,174.00

USF & G was found to be liable in solido

with Standard for $141,000.00 of the

total liability, the limits of its

performance bond. All other claims and

demands were dismissed.

In detailed written reasons, the trial

court found that Perez and the State were

justified in rejecting the roof on the

basis of Standard's poor workmanship and

that Standard was obligated to make the

roof watertight, if possible, before

walking off the job.

The trial court accepted the opinion

of Logan Donnell, Elliot's expert, that

the improperly sealed laps and butt

joints were the cause of the high

moisture content found under the Chem-Ply

and the roof's failure. It further found

that Standard's job foreman had no prior

A-45

experience with Chem-Ply, did not have

access to a Chem-Ply application manual,

failed to see that selvage laps and butt

joints were properly and promptly sealed,

and was of the mistaken belief that the

adhesive used to attach Chem-Ply would

render the laps and joints watertight.

The court concluded that it need not

resolve the issue regarding the State's

and/or Perez's prerogative to decline

acceptance of Standard's work on the

basis of aesthetic grounds, even though

there "may be some merit in Standard's

claim that is was not responsible for the

wrinkles." The court further concluded

that it need not address Elliot's claim

against Celotex for any breach of express

Or implied warranties because the

wrinkles did not produce the leaks.

LEGAL ANALYSIS

[1] We agree with the trial court's

A-46

finding that poor workmanship by Standard

was a cause of the leaking dome roof and

that Standard should have made the roof

watertight, to the extent possible,

before leaving the job in October, 1974.

While conflicting testimony was presented

on the severity of the leaks in the roof

and whether the roof could be repaired

rather than replaced, there is sufficient

evidence to support the finding that

Standard was responsible for the

waterproofing problems in the_ sloped

portion of the domed roof and that its

substandard performance contributed to

the leaks occurring in the other areas of

the roof.

The overwhelming majority of the

testimony indicates that the most severe

leaks occurred in the valley. The valley

is located where the tectum roof reaches

the wall at a steep angle. It was

———<

ae

A-47

leveied out by the application of a wedge

of lightweight aggregate concrete which

was placed at the joint between the wall

and the roof.

Standard's failure to promptly and

properly seal laps, its use of wet

materials, and its improper storage of

the Chem-Ply all contributed to the leaks

in the valley. However, there was

substantial evidence that those leaks

were attributable, at least in part, to

the fault of Perez and Elliot.

The wedge of concrete in the valley

formed a slope which peaked midway

between the drains located in every other

bay. The slope, as designed by Perez,

was inadequate for proper drainage,

resulting in standing — in the valley

area. During the re-roofing procedure,

Sechrist-Hall added more concrete to the

valleys to increase the slope and improve

A-48

the drainage.

Donnel and Evans testified that

Perez's flashing detail along the entire

perimeter of the roof was faulty and

allowed the leakage of water under the

Chem-Ply. The same design detail was

used on the re-roofing project and both

experts, after visiting the minidome in

1976, reported that the valley still

leaked.

Perez's specifications also required

that the Chem-Ply be applied directly

over the concrete wedge. According to

the expert testimony, the water in the

concrete evaporated causing adhesion

problems with the Chem-Ply. The design

was changed on the re-roofing project to

provide for a double layer of felt paper

over the concrete to protect the Chem-

Ply.

Elliot made a construction error when

a aaa area

A- 49

pouring the concrete for the gutters.

The specifications stated that the

factory-applied felts were to be removed

from the top of the tectum before the

concrete was poured. Mr. Donnel

testified that this step was important to

allow the proper curing and drying of the

concrete. However, Elliot did not remove

the felts before pouring the concrete.

The water in the concrete was trapped

between two vapor barriers’ and, in

Donnel's opinion, was the cause of some

of the problems relating to the sealing

of laps in the valleys.

The preponderance of the evidence

Supports the trial court's finding that

Standard's substandard work performance

was the primary cause of the leaking roof

and resulted in the replacement of the

entire roof. While Perez's design

defects and Elliot's construction defect

A-50

contributed to the problems in the

valley, these defects, in themselves,

were not severe enough to require the

replacement of the entire roof.

Additionally, insufficient evidence was

presented to show the amount of damages

which relate only to the problems in the

valley caused by the errors attributable

to Perez and Elliot. Thus, Standard must

bear the burden of the damages incurred

due to the leaking roof.

However, the roof was not rejected and

replaced solely on the basis of the

leaks. It was also rejected because of

its wrinkled appearance. We cannot

ignore the fact that abardlens of

whether the leaks existed or could have

been repaired, the roof had to be

replaced due to the wrinkles.

[2] The preponderance of the evidence

supports a finding that the cause of the

A-51

wrinkles in the Chem-Ply was the use of

the continuous base sheet over the tectum

boards. The wrinkles appeared even when

the base sheet and Chem-Ply were applied

with the undisputed superior workmanship

of Sechrist-Hall. The testimony of Mr.

Donnel indicates that wrinkles on the

second roof were a little smaller, but

sufficient to require rejection of the

roof had the work continued. In his

opinion, the wrinkles were inevitable

based on the use of the continuous base

sheet. We are convinced that Standard's

poor workmanship in the application of

the base sheet and cChem-Ply did not

contribute in any significant manner to

the wrinkled appearance. While Standard

may be liable technically or

constructively to Elliot as the supplier

of the Chem-Ply, it is not primarily at

fault for the continuous base sheet

_

A- 52

design requirement.

The next issue involves determining

the party or parties responsible for the

wrinkles. The change in the design

specifications adopting the continuous

base sheet is evidenced by an interoffice

memorandum by C.J. Klasen of Celotex's

parent company, which describes the basis

for that decision as follows:

Bill LeGrow, Gerry Stanley [other

Celotex representatives] and I all

agreed that a base sheet should be

required over the Tectum although one

had not been specified. The base

sheet should be applied with SIS

Adhesive. The base sheet is required:

A. To cover and protect the Tectum

from the weather. National Gypsum

requires that all Tectum be covered

within 24 hours of installation and

there is no way that the CHEM-PLY can

———

A-53

be applied to conform to this

requirement.

B. The base sheet will tend to

minimize some of the irregularities in

the Tectum deck that are anticipated.

Cc. Celotex now requires a base sheet

over all precast decks.

This recommendation was made after it was

learned that Elliot had improperly stored

some of the tectum and the _ factory-

applied felt was wrinkling.

Elliot accepted the recommendation

from Celotex and adjusted its contract

with Standard to pay for the additional

work. Ron Pilgrim of Perez testified

that Perez also agreed to abide by the

recommendation of Celotex, although it

had no idea that the base sheet would

cause a new problem. However, Perez

never issued a change order implementing

the change into the original

<a Ath te

o

A-54

specifications. Perez, Standard, and

Elliot all felt that Celotex's

recommendation had to be followed in

order to obtain a bonded roof from

Celotex.

[3] If the State was . bringing an

action against Perez to recover for its

cost to replace the roof, we have no

doubt that Perez would be cast as a party

responsible for the wrinkles under the

provisions of its contract. That action

would. be based on Perez's’ contractual

| obligations to oversee and supervise the

project. However, in this suit, we

consider only Standard's right to

indemnification or contribution from

Perez pursuant to its third party demand.

Perez contracted with the State only and

has no contractual obligation to Elliot

or Elliot's subcontractor, Standard.

[4,5] However, Perez, as the project

a~$S

architect, may be subject to an action in

tort brought by Standard even in the

absence of any privity of contract.’

Such an action arises when there is a

breach of a duty owed independently of

the contract between the owner and

architect. See Gurtler, Hebert & Co. v.

Weyland Mach. Shop, 405 So.2d 660

(La.App. 4th Cir. 1981), writ denied, 410

So.2d 1130 (La. 1982); Calandro

Development Inc. v. R.M. Butler Contr.,

Inc., 249 -So.2d 254 (La.App. 1st Cir.

1971). An architect is deemed to know

that his services are for the protection

of the owner's interest, as well as the

protection of other third parties who

have no supervisory power whatsoever and

must rely on the architect's expertise in

7 There is no evidence in the

record on appeal which indicates that

Elliot filed a third party demand against

Perez.

A-56

providing adequate supervision, plans,

and specifications. See Calandro

Development, Inc. v. R.M. Butler Contr.,

inc., supra.

[6] However, we find that’ the

evidence is insufficient to show that

Perez breached any duty owed to Standard

or Elliot. Perez never issued a written

change order adopting the continuous base

sheet design as part of its plans and

specifications. It admittedly relied on

the procedure established by Celotex and

approved by Elliot which made that design

change. However, it cannot be faulted

for relying on the recommendations of the

manufacturer, particularly when it had

not been adequately warned ahout the

wrinkling potential of the recommended

procedure and when manufacturer approval

was required to obtain a bonded roof.

We hold that Perez did not breach any

A-57

duty owed to Standard or Elliot by

allowing the application of the

continuous base sheet.

The argument is made that the use of

the continuous base sheet was caused by

Elliot's improper storage of the tectum

at the job site. However, only 25% of

the total tectum was improperly stored,

and there was additional testimony that

only the tectum boards near the top of

the stacks actually had wrinkled felts.

Celotex required that the continuous base

sheet be applied over the entire roof,

whether or not the factory-applied felts

on the tectun had to be removed. Celotex

required the continuous base sheet on the

re-roofing job in areas where there was

no problem with factory-applied felts.

While Elliot's negligent storage of the

tectum may have been a cause-in-fact of

the application of the continuous base

A-58

sheet, it was certainly not the legal

cause. Additionally, Elliot has been

dismissed from this proceeding due to

settlement and is not a party to this

appeal.

The responsibility for the wrinkled

roof and the resulting costs incurred by

Elliot must be with Celotex, the

manufacturer and the party which

initiated and required the continuous

base sheet design. While the Chem-Ply

itself may not have been inherently

defective, the application specifications

required by Celotex were defective.

Celotex advertised Chem-Ply as a

product designed to conform to "exotic-

type roofs" which are those that are

necessarily visible and become part of a

building's architecture. Thus, the

aesthetic appeal of such a roof is of

obvious importance and the rejection of

Spine bee

A-59

any such roof due to its unappealing

appearance is entirely proper. This is

particularly so in this case where

Celotex's sales brochures emphasized the

dependability and aesthetic appeal of

Chem-Ply.

Once Chem-Ply was selected for the

minidome, Celotex representatives worked

with Perez in obtaining overall

specifications for the deck assembly and

the roofing system. When the problem

arose with the wet tectum, Celotex

required the use of the continuous base

sheet, which would allegedly "minimize

the irregularities" of the tectum deck.

This requirement was made at a time when

Celotex, as manufacturer, presumably knew

of the wrinkling tendency around the

tectum joints. Celotex was the party

ultimately responsible for the continuous

base sheet requirement, which resulted in

A-60

the wrinkled appearance. While the Chem-

Ply was not necessarily defective per se,

the application specifications required

by Celotex were defective.

Although evidence was presented to

show that there had been delamination and

resiliency problems encountered with the

product in general due to inadequate

heating during manufacture, that defect

was not the primary cause of the wrinkles

or the roof's replacement. The cause was

the continuous base sheet requirement

imposed by Celotex. While Celotex

offered an alternative to Elliot-

purchasing new tectum - Celotex should

not be exonerated because the wrong

choice was made.

(7] We must now consider the basis,of

the liability imposed. Each party at

fault - Standard and cCelotex - had

separate obligations to perform separate

einai

A-61

acts. Standard was contractually bound

to Elliot to perform its subcontract ina

workmanlike manner; Celotex was bound to

provide a roofing system that was

appropriate for the “peetent and to

provide proper installation instructions

for its product. Each party promised or

was obligated separately to perform

distinct acts. The obligations were

several in that regard. LSA-C.C. art.

20788 (prior to Acts 1984, No. 331,

section 1, mow LSA-C.C. art. 1787).

There was no solidary obligation for the

performance of the separate obligations.

8 LSA-C.C. art. 2078 (prior to Acts

1984, No. 331, section 1) states:

Several obligations are produced, when

what is promised by one of the obligors,

is not promised by the other, but each

one promises separately for himself to do

a distinct act; such obligations,

although they may be contained in the

same contract, are considered as much

individual and distinct as if they had

been in different contracts, and made at

different times.

A- 62

W Wi fe) v. Barnard & Burk

Inc., 294 So.2d 867 (La.App. 2nd Cir.

1974), writs refused, 295 So.2d 445

(1974).

It does not follow, however, that the

obligations now owed by Standard and

Celotex remain several. The obligation

at issue in this suit and the one

enforced by Elliot at trial is the

payment of damages by the parties

responsible for the defective roof due to

the breach of their respective contracts

and duties. See Town of Winnsboro v.

arna & Burk c., supra.

[8] Unlike the trial court, we find

that the roof had to be replaced because

of two problems - it was not watertight,

and it was wrinkled in appearance. Each

problem was of such severity, that in the

absence of the other problem, replacement

was necessary. The waterproofing

A-63 —™

problems were caused primarily by

Standard's substandard workmanship. The

wrinkled appearance was the result of

Celotex's continuous base sheet

requirement. Each problem was sufficient

to require a new roof. Both parties'

actions combined and contributed to cause

the same item of damages, an unacceptable

roof, and both parties are now obligated

to pay for the cost of repair.

[9] Standard has been compelled to

pay the whole amount of damages and

payment by Standard exonerates Celotex.

However, Standard is entitled to

contribution by virtue of its payment of

the total obligation. The parties are

obligated differently by reason of the

various duties and contractual

relationships, but they are both bound

for the cost of replacing the roof. 4

matters not that the respective parties'

A- 64

obligations to repair the loss arise

separately from an offense or quasi-

offense or from a contract, or both.

Reeves v. Dixie Brick, Inc., 403 So.2d

792 (La.App. 2nd Cir. 1981); Town of

Winnsboro v. Barnard & Burk, Inc., supra.

All of the elements of an obligation in

solido are met.

[10] Standard also requests

indemnification in redhibition for its

attorney's fees and costs by Celotex

under LSA-C.C. art. 2545. However, in

order for a party to make a claim for

indemnification that party must itself be

free of fault and liable only vicariously

or derivatively. See Robert v. Bayou

Bernard Marine, Inc., 514 So.2d 540

(La.App. 3rd Cir. 1987), writs denied,

515 So.2d 1107, 1108 (La. 1987); Landry

v. Pierre Part Natural Gas Co., Inc., 413

So.2d 621 (La.App. lst Cir. 1982); Dupree

A- 65

v. Pechinay Saint Gobain Co., 369 So.2d

1075 (La.App. 1st Cir. 1979), writ

denied, 371 So.2d 1341 (La. 1979). In

this case, Standard itself was a fault in

providing substandard workmanship.

Hence, it is only entitled to

contribution from its solidary obligor,

not indemnification.

[11] Standard's request for the

amount due under its contract with Elliot

is also denied because its work was so

defective as to be practically useless.

Fortier v. Sessum, 441 So.2d 1238

(La.App. 5th Cir. 1983).

DAMAGES

[12] The trial court found that the

following damages were incurred by

Elliot:

(1) Remove roofing and repair

deck S$ 28,453.00

A- 66

(2) Replace roof (sub-

contractor's charge) 138,589.00

(3) Roofing consultant 17,581.00

(4) Painting tectum deck 19,247.00

(5) Time related costs 108,174.00

Total $309,044.00

Only one of these items, painting the

tectum deck, can be attributed solely to

the leaking roof. The testimony

indicates that the tectum had to be

repainted due to water stains. All of

the other costs were caused by both

problems - the leaking roof and the

wrinkled roof.

Appellees argue that the "time related

costs" arose due to the delays in

interior work caused solely by the

leaking roof. However, as the trial

court found, delays in interior work were

also attributable to the open compression

ring, the delayed installation of the

A-67

window walls and the lack of air

conditioning. The importance of these

factors is evidenced by the fact that

more than ninety percent of the carpentry

work, doors, windows and glass work,

finishing work, equipment installation

and furnishings were completed by

September 21, 1975, within the three

month period after the air conditioning

was turned on.

The trial court concluded that a

reasonable delay period attributable to

the replacement of the roof was 132 days

or the period from September 21, 1975

through January 31, 1976. The evidence

shows that Sechrist-Hall spent its first

two or three days (September 23-25) on

the job repairing the gutter to make it

watertight. From that point on, the

trial court found that the interior work

could proceed without interruption. The

A- 68

delay period of 132 days, which the trial

court used to calculate "time related

costs," was not attributable to the

leaking roof. Both parties are

solidarily bound for this amount.

Standard has paid the full amount of

the liability owed to Elliot. It is now

entitled to collect a virile portion or

one-half of the damages from Celotex for

which there is solidary liability. LSA-

C.Cc. art. 2104 (prior to Acts 1984, No.

331, section 1, now LSA-C.C. art. 1804).

We find that Standard and Celotex are

solidarily bound for all costs except the

$19,247.00 cost to paint the tectum deck.

Standard is solely responsible for that

item.

CONCLUSION

Accordingly, the trial court's

judgment finding Standard liable is

affirmed. Judgment is rendered in favor

A- 69

of Standard and against Celotex finding

that Standard and Celotex are solidarily

liable for $289,797.00, and that Standard

is entitled to contribution of fifty

percent of the total amount, with

judicial interest thereon from the date

of payment of the solidary obligation to

Elliot by Standard. See Ragland v.

Viator, 426 So.2d 231 (La.App. lst Cir.

1983). The trial court's judgment

dismissing all other parties is affirmed.

Costs are assessed to Standard and

Celotex.

AFFIRMED IN PART; REVERSED IN PART;

AND RENDERED.

Nunover L4 A) -

FILED IN EVIOZNCE

f

att LL

—— —_—

Z2] l 7,

Loe Duce,

aa S08 STA,

J” Tectum Piork

a Roof Ceck

ROOFING SYSTEM CCIMPONENTS

Exhibit “A

MEMORANDUM DECISIONS

In 535 $0.20 1166:

STANDARD ROOFING COMPANY OF

NEW ORLEANS

V sd

ELLIOTT CONSTRUCTION

COMPANY, INC., et al

No. 88-C-3143.

Supreme Court of Louisiana.

February 17, 1989.

In re Celotex Corp.; -

Defendant(s); applying

for writ of certiorari

A-71

and/or review; to the

Court of Appeal, First

Circuit, No. 87CA 0506;

Parish of East Baton

Rouge, 19th Judicial

District Court, Div. “L",

No. 180491.

Prior report: lLa.App.,

535 So.2d 870.

Denied.

A- 72

In 535 $90.2¢d 1167:

STANDARD ROOFING COMPANY OF

NEW ORLEANS

ELLIOTT CONSTRUCTION

COMPANY, INC., et al

NO. 66-C-3152.

Supreme Court of Louisiana.

February 17, 1989.

Reconsideration Denied March

1989.

10,

A- 73

In re Standard Roofing

Co. Of N.O.; -

Plaintiffs(s); applying

for writ of certiorari

and/or review; to the

Court of Appeal, First

Circuit, No. CA87 0506;

Parish of East Baton

Rouge, 19th Judicial

District Court, Div. *L*,

No. 180491.

Prior report: La.App.,

535 So.2d 870.

Denied.

MARCUS, J., would grant the writ.

In 539 So.2d 627:

STANDARD ROOFING COMPANY OF

NEW ORLEANS

ELLIOTT CONSTRUCTION

COMPANY, INC., et al

No. 88-C=-3152.

Supreme Court of Louisiana.

March 10, 1989.

In re Standard Roofing

Co. of N.O.; applying for

A- 75

reconsideration of writ

denial of February 17,

1989, 537 So.2d 1167, to

the Court of Appeal,

First Circuit, No. CA87

0506; Parish of East

Baton Rouge, 19th

Judicial District Court,

Div. "L", No. 180491.

Reconsideration denied.

The judgment is definitive.

La.C.C.P. art. 2166.