by Thomas C. Naquin, Senior Associate
Courts in Louisiana are split on whether or not comparative fault, a mechanism through which a party may effectively shift blame onto another party, applies to actions arising in contract, or merely to actions in tort. This split creates uncertainty in the law and should be resolved by the Louisiana Supreme Court when the issue again presents itself.
II. The Circuit Split
In 1996, in reforming Louisiana’s tort law scheme, the Louisiana Legislature amended and adopted the current version of Louisiana Civil Code article 2323. Under its current construction, Louisiana Civil Code article 2323 creates a pure comparative fault system in Louisiana, providing in paragraphs A and B:
A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined . . .. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
In the aftermath of the 1996 tort reform, courts have struggled with the language of paragraph B that applies comparative fault to “any claim for recovery of damages” made “under any law or legal doctrine or theory of liability, regardless of the basis of liability.” The seemingly broad scope of article 2323 has led to a circuit split on the issue of whether comparative fault applies merely to delictual actions, or to contractual actions as well. Although the Louisiana Supreme Court has recognized the circuit split, it has yet to resolve it. If and when the Louisiana Supreme Court does address the circuit split, the solution is clear¾comparative fault applies only in delictual actions.
III. The Resolution
In Hanover Insurance Co. v. Plaquemines Parish Government, the United States District Court for the Eastern District of Louisiana conducted a well-reasoned analysis of the application of comparative fault. The Hanover court concluded that comparative fault applied only to delictual actions and, in doing so, provided two main reasons: (1) the Louisiana Supreme Court discussed, at length, the 1996 revision and referred only to tort law; and (2) the structure of the Louisiana Civil Code supports the notion that comparative fault applies only to delictual actions.
A. Evaluating the Louisiana Supreme Court’s Discussion of the 1996 Revision
In Dumas v. State ex rel. Department of Culture, Recreation & Tourism, the Louisiana Supreme Court discussed the 1996 revision of Louisiana Civil Code article 2323. The Supreme Court’s analysis of the 1996 revision made references only to tort law. The Court observed that the amendment’s purpose was “to abolish solidary liability among non-intentional tortfeasors and to place Louisiana in a pure comparative fault system.”[11 The Court further characterized the amendments as “effect[ing] a total shift in tort policy.” The opinion made no mention of the amendments altering other theories of recovery. The Dumas court’s references to the 1996 amendments as changing tort law support the application of comparative fault to delictual actions only.
B. The Structure of the Louisiana Civil Code
Further, a finding that comparative fault applies only to delictual actions has even greater support in the structure of the Louisiana Civil Code. Unlike statutes enacted in common law jurisdictions, “the articles of a civil code are carefully organized according to their subject matter.” The Louisiana Supreme Court has long held that courts should construe Civil Code articles in accord with their subject matters. It is imperative, then, to consider article 2323’s placement within the Louisiana Civil Code to interpret its meaning.
Notably, article 2323 is in Title V of Book III, addressing obligations that arise without agreement. It is specifically located in Chapter 3, which houses Louisiana’s tort law. Contract law, however, is in Title IV of Book III. This placement suggests that drafters intended article 2323 to apply only to tort law.
A close examination of the Code further supports the conclusion that comparative fault applies only to delictual actions. Title IV of Book III contains rules governing the calculation of damages in contract cases. Contractual provisions, in part, allow a court to reduce the damages one owes for breaching a contract in cases in which the obligee’s own negligence contributed to his damages. The fact that the contract section of the Code contains its own set of rules regarding damages discourages importing a tort article into contract cases.
A provision in Title III of Book III, however, most strongly counsels against the application of comparative fault in contract cases. Article 1804 provides:
Among solidary obligors, each is liable for his virile portion. If the obligation arises from a contract or quasi-contract, virile portions are equal in the absence of agreement or judgment to the contrary. If the obligation arises from an offense or quasi-offense, a virile portion is proportionate to the fault of each obligor.
Article 1804—unsurprisingly found in the general obligations provisions—provides that courts allocate damages in one manner among co-obligors to a contract and in a different manner among co-obligors to an offense or quasi-offense. Indeed, the comments to the article explicitly state that the allocation of damages “depend[s] on the source of the obligation.” In light of the distinction article 1804 makes between damages in actions arising in contract and of those arising in tort, the legislature likely intended to create separate legal regimes governing the allocation of damages in contract and tort actions.
If and when the Louisiana Supreme Court resolves the current circuit split, it should adopt the reasoning of the Hanover court and hold that Louisiana’s comparative fault regime applies only to delictual actions. This conclusion is supported by both the purpose of the 1996 revisions and the structure of the Louisiana Civil Code.
 La. Civ. Code art. 2323 (2018).
 The following sources reject the application of comparative fault to contractual actions: Justiss Oil Co., v. Oil Country Tubular Corp., 216 So. 3d 346 (La. Ct. App. 2017), writ denied, 227 So. 3d 830 (La. 2017); Hoffmann v. B & G, Inc., 215 So. 3d 273, 282 (La. Ct. App. 2017); Hanover Ins. Co. v. Plaquemines Par. Gov’t, No. CIV.A. 12-1680, 2015 WL 4167745, at *4–6 (E.D. La. July 9, 2015); Dual Constr., Inc. v. City of Alexandria, No. 10–1039, 2011 WL 759604, at *3 (W.D. La. Feb. 24, 2011); Hollybrook Cottonseed Processing, LLC v. Carver, Inc., CIV.A. 09-0750, 2010 WL 1416781, at *1 (W.D. La. Apr. 1, 2010); Touro Infirmary v. Sizeler Architects, 900 So. 2d 200 (La. Ct. App. 2005); Merlin v. Fuselier Constr., Inc., 789 So.2d 710, 717 (La. Ct. App. 2001).
 The following sources appear to recognize that something resembling comparative fault can reduce contractual liability: Chevron U.S.A. Inc. v. Aker Mar., Inc., No. 03–2027, 2008 WL 594648, at *1 (E.D. La. Feb. 29, 2008), rev’d on other grounds, 604 F.3d 888 (5th Cir. 2010); Touro Infirmary v. Sizeler Architects, 900 So. 2d 200, 207 (La. Ct. App. 2005) (Murray, J., dissenting); Petroleum Rental Tools, Inc. v. Hal Oil & Gas Co., 701 So. 2d 213, 217–18 (La. Ct. App. 1997) (holding that “liability for the redhibitory ‘defect’ qualifies as ‘fault’ under Article 2323 A”); Frank L. Maraist & Thomas C. Galligan, Jr., Burying Caesar: Civil Justice Reform and the Changing Face of Louisiana Tort Law, 71 Tul. L. Rev. 339, 382 (1996) (“Given the breadth of the language of new Article 2323(B), comparative fault may apply not only to a tort action but to a contract claim (including redhibition), a property claim, and perhaps others.”) (emphasis added).
 Aucoin v. S. Quality Homes, LLC, 984 So.2d 685, 693 n.12 (La. 2008).
 Hanover, 2015 WL 4167745, at *5–6.
9] Dumas v. State ex rel. Department of Culture, Recreation & Tourism, 828 So. 2d 530 (La. 2002).
 Id. at 535 (emphasis added).
 Id. at 538.
 See generally id.
 Hanover Ins. Co. v. Plaquemines Par. Gov’t, CIV.A. 12-1680, 2015 WL 4167745, at *5 (E.D. La. July 9, 2015). See generally Robert Anthony Pascal, Of the Civil Code and Us, 59 La. L. Rev. 301 (1998); James L. Dennis, Capitant Lecture, 63 La. L. Rev. 1003 (2003); Katie Drell Grissel, The Legal Fiction of “Clear Text” in Willis–Knighton v. Caddo–Shreveport Sales and Use Tax Commission, 67 La. L. Rev. 523, 525–40 (2007).
 Compare Citizens & Taxpayers of De Soto Parish v. Williams, 21 So. 647, 654 (La. 1897) with Pociask v. Moseley, 122 So. 3d 533, 540 (La. 2013).
 La. Civ. Code art. 2323 (2018).
 See, e.g., id. art. 1906.
 Id. arts. 1994–2004.
 Id. art. 2003 (“If the obligee’s negligence contributes to the obligor’s failure to perform, the damages are reduced in proportion to that negligence.”).
 Id. art. 1804.
 La. Civ. Code Ann. art. 1804 cmt. b.