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Contractor Who Failed to Challenge Arbitration Award Within Statutory Three Month Period Cannot Resurrect the Challenge as an 'Affirmative Defense' to a Later Action for Confirmation

St. George Fire Prot. Dist. No. 2 v. J. Reed Constructors, Inc. 2018, La. App. LEXIS 262 (February 20, 2018)

Author: Michelle Beth Rosenberg

4/12/2018

Read the full post at Constructlaw

Contractor Who Failed to Challenge Arbitration Award Within Statutory Three Month Period Cannot Resurrect the Challenge as an 'Affirmative Defense' to a Later Action for Confirmation

J. Reed Constructors, Inc. (J. Reed) and St. George Fire Protection District No. 2 (St. George) entered into two construction contracts under which disputes were subject to binding arbitration. A dispute arose in which J. Reed contested St. George’s assessment of liquidated damages and claims for breach of warranty. The matter was submitted to arbitration and the arbitrator awarded St. George $58,865.00.

St. George petitioned the trial court to confirm the arbitration award, pointing out that the three month deadline for the parties to request that the award be vacated, modified, or corrected had lapsed. J. Reed answered the petition by objecting to the confirmation of $41,660.00 for architect and attorney fees. J. Reed acknowledged that it did not file a motion to modify within three months of the award, as required by the Louisiana Binding Arbitration Law (the Act), but argued that it was not prohibited from raising its objection as an affirmative defense in its answer to the petition.

The trial court rejected J. Reed’s argument and confirmed the award. The Court of Appeals affirmed, holding that J. Reed’s right to challenge the award had been waived and could not be revived by characterizing the challenge as an affirmative defense to the petition to confirm.