Insights

Deutsch Kerrigan Article /

The Betterment Doctrine and Property Damage Claims

February 3, 2026

Peter-Raymond Graffeo

share this page

The Betterment Doctrine and Property Damage Claims

The Louisiana Supreme Court, in Ngoc Troung v. Marcus Dewayne Sanders,[1] recently held that third-party tortfeasors, and their insurers, cannot rely on “betterment” to reduce recoverable damages. Betterment is a legal principle premised on the idea that property owners should not be placed in an improved position from where they were pre-accident. Instead, under the betterment theory, property owners should be placed “in the position [they] would have occupied if the injury complained of had not been inflicted.”[2] When property is damaged, the goal should be to “restore the property as nearly as possible to the state it was in immediately preceding the damage.”[3] Put another way, the betterment doctrine prevents property owners from receiving a financial windfall by limiting damages to restoring the property to its original, bargained-for condition, not allowing upgrades or improvements beyond the original contract.

Even though the betterment doctrine typically arises in construction defect cases, here the Supreme Court reviewed its application in a car accident matter. In Troung, the third-party tortfeasor rear-ended the plaintiff, and as a result of the collision, the exhaust system and a tire needed to be replaced on the plaintiff’s vehicle. Due to safety concerns, the repair shop utilized new parts instead of comparable used parts with similar wear and tear. Relying on the betterment theory, the tortfeasor’s insurer deducted amounts for the wear and tear on the pre-existing exhaust and tire. 

After payment for the full repair was not provided, the car’s owner filed suit arguing that “Louisiana law does not provide for ‘betterment’ and does not permit a [tortfeasor’s] liability insurer to withhold any amounts from the full amount of money required to fix the damages caused to a tort victim’s vehicle.”

The Louisiana Supreme Court agreed – within the context of claims for negligence arising out of La. C.C. art. 2315. Specifically, the high court stated that under La. C.C. art. 2315, an at-fault tortfeasor “is obliged to ‘repair [the damaged property],’” and “[i]f the vehicle cannot be fixed with used parts. . . new parts are necessary to ‘repair it’” so that the vehicle can be returned to service. Importantly, the court also noted that “[t]he work the repair shop completed did not go ‘beyond repair or restoration’” and further added that failing to fully restore the vehicle would “place [the plaintiff] in a worse position than before the accident.”

While the court clearly precluded third-party tortfeasors from relying on betterment, it did not preclude the betterment doctrine from contractual disputes. That is because while Louisiana tort law currently has no statutory authority for betterment, Louisiana contract law does under La. C.C. art. 1995, which states that “[d]amages are measured by the loss sustained by the obligee and the profit of which he has been deprived.”

Courts throughout Louisiana have interpreted this codal article to mean that “[t]he measure of damages for a breach of contract is the sum that will place plaintiff in the same position as if the obligation had been fulfilled,” with the Louisiana Supreme Court adding that “[d]amages, then, are the judicial remedy whereby money replaces the obligation that was not performed.”[4] The theory is further reinforced with La. C.C. art. 1998, which generally precludes nonpecuniary damages for breaches of contract, except in very limited circumstances.[5]

Construction disputes are predominantly contractual in nature, and it is imperative that counselors view damages through the betterment lens. Project owners only have to pay for things once and defective construction and/or design does not entitle them to free upgrades. For example, a roofing contractor that builds a leaking roof that cannot be repaired with anything less than a new roof should only pay in damages the value of the original contract price for the roof. Payment of the contract price “replaces the obligation that was not performed.” Requiring the roofing contractor to return the original contract price and pay for a new roof would place the owner in an improved position, constituting betterment.[6]

Ultimately, whether in tort or in contract, the intended goal of the betterment doctrine in property damage claims is to keep the focus where it belongs – on restoring property, not enhancing it.

 

[1]                 Ngoc Troung v. Marcus Dewayne Sanders, 2025-C-00169 (La. 12/18/2025).

[2]                 Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Serv. Co., 618 So.2d 874, 876 (La.1993).

[3]                 Id. (quoting Coleman v. Victor, 326 So.2d 344, 346 (La.1976)).

[4]                 Gloria's Ranch, L.L.C. v. Tauren Expl., Inc., 2017-1518, p. 21 (La. 6/27/18); 252 So.3d 431, 445; see also LAD Servs. of Louisiana, L.L.C. v. Superior Derrick Servs., L.L.C., 2013-0163, p. 19 (La.App. 1 Cir. 11/7/14); 167 So.3d 746, 761, writ not considered, 2015-0086 (La. 4/2/15); 162 So.3d 392; Dixie Roofing Co. of Pineville, Inc. v. Allen Par. Sch. Bd., 95-1526, p. 10 (La.App. 3 Cir. 5/8/96); 690 So.2d 49, writ denied, 96-2084 (La. 11/8/96); 683 So.2d 276, and writ denied, 96-2100 (La. 11/8/96); 683 So.2d 277; Louisiana Power & Light Co. v. Bourgeois, 355 So.2d 597, 600 (La. Ct. App.1978); and Apache Deepwater, L.L.C. v. W&T Offshore, Inc., 930 F.3d 647, 658 (5th Cir.2019).

[5]                 See also Meador v. Toyota of Jefferson, Inc., 332 So.2d 433, 435 (La.1976).

[6]                 See Stream v, LeJeune, 352 So.2d 714 (La. Ct. App. 1977); and Nicholson & Loup, Inc. v. Carl E. Woodward, Inc., 596 So.2d 374, 378 (La. Ct. App.1992), writ denied, 605 So.2d 1098 (La.1992), and writ denied, 605 So.2d 1098 (La.1992).

Firm Highlights

  • News

    44 Deutsch Kerrigan Attorneys Recognized by Best Lawyers® in 2027 Edition, Including Two “Lawyer of the Year” Honorees

    Deutsch Kerrigan proudly announces that 44 of our attorneys have been recognized by their peers in the 2027 editions of The Best Lawyers in America® and Best Lawyers: Ones to Watch® in America. This year, 34 Deutsch Kerrigan attorneys were named to The Best Lawyers in America®, with an additional 10 attorneys recognized in Best Lawyers: Ones to Watch® in America. In addition, John Jerry Glas and Kelly E. Theard were each named “Lawyer of the Year” in their respective practice areas—an honor awarded to only one attorney per practice area in each region. John Jerry Glas — Transportation Law, New Orleans Kelly E. Theard — Professional Malpractice Law – Defendants, New Orleans Below is the full list of Deutsch Kerrigan attorneys recognized in the 2027 editions of The Best Lawyers in America® and Best Lawyers: Ones to Watch® in America. 2027 The Best Lawyers in America® Thirty-four Deutsch Kerrigan attorneys were recognized in the 2027 edition of The Best Lawyers in America®: New Orleans, Louisiana Jennifer Adams Litigation - Environmental Product Liability Litigation - Defendants Francis J. Barry, Jr. Admiralty and Maritime Law Product Liability Litigation - Defendants Keith J. Bergeron Construction Law Litigation - Construction Professional Malpractice Law - Defendants Terrence L. Brennan Arbitration Construction Law Litigation - Construction Professional Malpractice Law - Defendants Bertrand M. Cass, Jr. Admiralty and Maritime Law Energy Law Personal Injury Litigation - Defendants Beverly Aloisio DeLaune Commercial Litigation Legal Malpractice Law - Defendants Professional Malpractice Law - Defendants Catherine Filippi Personal Injury Litigation - Defendants John Jerry Glas Insurance Law Mass Tort Litigation / Class Actions - Defendants Personal Injury Litigation - Defendants Transportation Law David Groome, Jr. Litigation - Insurance Personal Injury Litigation - Defendants William C. Harrison, Jr. Aviation Law Mass Tort Litigation / Class Actions - Defendants Personal Injury Litigation - Defendants Product Liability Litigation - Defendants Carl "Chip" Hellmers Medical Malpractice Law - Defendants Karen Holland Professional Malpractice Law - Defendants Duris L. Holmes Banking and Finance Law Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Business Organizations (including LLCs and Partnerships) Commercial Litigation Litigation - Bankruptcy Joshua G. Keller Insurance Law Litigation - Insurance Personal Injury Litigation - Defendants Ryan D. Kelley Insurance Law Personal Injury Litigation - Defendants Robert E. Kerrigan, Jr. Commercial Litigation Litigation - Environmental Litigation - Insurance Mass Tort Litigation / Class Actions - Defendants Personal Injury Litigation - Defendants Product Liability Litigation - Defendants Charles E. Leche Admiralty and Maritime Law Personal Injury Litigation - Defendants Product Liability Litigation - Defendants Frederic Theodore Le Clercq Employment Law - Management Labor Law - Management Litigation - Labor and Employment Professional Malpractice Law - Defendants Admiralty and Maritime Law Personal Injury Litigation - Defendants Product Liability Litigation - Defendants Melissa M. Lessell Commercial Litigation Ethics and Professional Responsibility Law Professional Malpractice Law - Defendants Raymond C. Lewis Insurance Law Litigation - Insurance Personal Injury Litigation - Defendants Walter P. Maestri Admiralty and Maritime Law Energy Law Personal Injury Litigation - Defendants Product Liability Litigation - Defendants Joseph L. McReynolds Appellate Practice Litigation - Construction Personal Injury Litigation - Defendants Product Liability Litigation - Defendants Professional Malpractice Law - Defendants Anne E. Medo Commercial Litigation Richard B. Montgomery III Commercial Transactions / UCC Law Litigation - Real Estate Real Estate Law Securitization and Structured Finance Law Sean P. Mount Commercial Litigation Insurance Law Litigation - Construction Litigation - Insurance Mass Tort Litigation / Class Actions - Defendants Personal Injury Litigation - Defendants Talbot M. Quinn Insurance Law Litigation - Insurance Joanne Rinardo Employment Law - Management Litigation - Labor and Employment Kermit L. Roux III Family Law Insurance Law Personal Injury Litigation - Defendants Product Liability Litigation - Defendants Brian S. Schaps Construction Law Litigation - Construction A. Wendel Stout III Litigation - Environmental Mass Tort Litigation / Class Actions - Defendants Product Liability Litigation - Defendants Kelly E. Theard Construction Law Litigation - Construction Personal Injury Litigation - Defendants Product Liability Litigation - Defendants Professional Malpractice Law - Defendants Marc J. Yellin Personal Injury Litigation - Defendants Product Liability Litigation - Defendants Gulfport, Mississippi Richard Tubertini Business Organizations (including LLCs and Partnerships) Commercial Litigation Professional Malpractice Law - Defendants R. Douglas Vaughn Health Care Law Insurance Law Litigation - Insurance Medical Malpractice Law - Defendants Personal Injury Litigation - Defendants Product Liability Litigation - Defendants Professional Malpractice Law - Defendants 2027 Best Lawyers: Ones to Watch® in America Ten Deutsch Kerrigan attorneys were recognized in the 2027 edition of Best Lawyers: Ones to Watch® in America. New Orleans, LA Gregory J. Angelico Personal Injury Litigation - Defendants   Chance Carter Personal Injury Litigation - Defendants   Colin Casciato Commercial Litigation   Peter-Raymond Graffeo Construction Law   Ethan King Personal Injury Litigation - Defendants   Jose Ruiz Insurance Law Personal Injury Litigation - Defendants Transportation Law   Justine Ware Insurance Law   Casey Wendling Professional Malpractice Law Gulfport, Mississippi Peyton Farve Insurance Law Transportation Law   Keeton Thach Insurance Law Personal Injury Litigation - Defendants Professional Malpractice Law
  • Experience

    Burnell Joseph v. Atalco Gramercy, LLC et al., No. 3:23-cv-505, United States District Court for the Middle District of Louisiana

    Bob Kerrigan and Jose Ruiz successfully secured summary judgment dismissal for their client, Velan, Inc., in a complex intentional tort and products liability act involving catastrophic injury. The plaintiff, a precipitation batch tank operator working at the Atalco alumina refinery in Gramercy, Louisiana, suffered severe and debilitating chemical burn injuries to his face, eyes, and body when he was sprayed with caustic liquor while working underneath a tank at the refinery. He claimed that the valve that controlled the flow of liquor into the tank was leaking, which allowed the tank to become filled with liquor after it had been previously verified as empty. He filed suit against Velan, Inc., the manufacturer of the valve that controlled the flow of liquor into the tank, alleging that the valve was unreasonable dangerous in accordance with the Louisiana Products Liability Act. He also filed an intentional tort claim against his employer, Atalco Gramercy, LLC, alleging that Atalco knew the valve was leaking and continued to force employees to work underneath the tank. He claimed that under these conditions, an incident such as his was substantially certain to occur. Following the close of discovery, Velan moved for summary judgment dismissal of the plaintiff’s claims was appropriate because: (1) the plaintiff’s injuries were a result of Atalco’s misuse of the valve; (2) the plaintiff lacked the expert testimony needed to prove his theory of liability under the Louisiana Product’s Liability Act; (3) the Velan valve at issue was not unreasonably dangerous as defined by the Louisiana Products Liability Act; and (4) the plaintiff was unable to prove proximate causation needed to establish his case of liability against Velan. The Hon. Brian Jackson found that under the undisputed facts presented by Velan, summary judgment was appropriate and dismissed the plaintiff’s claims against it, with prejudice.
  • Insight

    No Mercy for Employers in Louisiana Supreme Court’s Recent Magill Decision

    In its recent per curiam opinion, Magill v. Werner Enterprises, Inc. of Nebraska[1], the Louisiana Supreme Court has foreclosed a routine defense strategy to shield employers from direct negligence claims. The high court has extended their 2022 decision in Martin v. Thomas[2], and now allows plaintiffs to pursue direct negligence claims against an employer despite the employer’s stipulation that its employee was in the course-and-scope of employment and caused the accident. Essentially, employers who fail to implement better employment practices will permit plaintiffs to ramp up potential exposure with evidence, if such exists, that heretofore they were routinely barred from introducing at trial. The Supreme Court’s Magill holding should encourage employers to update where needed their policies and procedures pertaining to hiring, training, supervising, and entrusting duties and property to employees, not only for the safety of their employees and customers in this state, but also eliminate employer’s exposure to direct negligence claims. Prior to Martin, a litigation strategy had taken shape where employers stipulated to 1) an employee being in course-and-scope of employment at the time of the accident, 2) that the employee was at fault for the accident being caused, or 3) both. By stipulating these facts, employers were largely able to exclude evidence of any direct negligence on part of the employer and/or narrow the scope of trial to only a contest of the plaintiff’s injuries. The Supreme Court in Martin held that despite an employer admitting their employee was in course and scope when the accident occurred, plaintiffs could pursue direct negligence claims against the employer—as the issue of liability had not been admitted. Accordingly, employers found success by admitting both course and scope and liability—as seen in the Western District of Louisiana’s holding in Ferguson v. Swift Transp. Co. of Arizona[3]. In Ferguson, the defendants stipulated that their employee was acting in course-and-scope at the time of the accident and their employee was 100% at fault for the accident being caused. Due to the employer’s stipulation of fault, Judge Wicks of the Western District of Louisiana held that Martin did not apply and that plaintiffs could not pursue direct negligence claims. In Magill, the Louisiana Supreme Court provided scarce reasoning for their decision. The high court simply affirmed the District Court’s expansion of the holding in Martin and that the employer’s reliance on the Western District’s Ferguson holding was a misapplication of Louisiana law. The Supreme Court also cited the decision in Tardo v. Farrell.[4] where the Fifth Circuit held that even if an employer and employee stipulate to course and scope and fault, those admissions do not eliminate direct-negligence claims because those claims remain separate issues for the trier of fact. The Fifth Circuit notably stated, “the societal decisions as to who actually pays does not change the manner of assessing fault to all parties as required by law.” This statement raises concern, as plaintiffs may now attempt to challenge employer stipulations that historically narrowed trials. The Supreme Court did not explain its reliance on Tardo, so future litigation will likely clarify the decision’s full impact. Under Magill, plaintiffs are permitted to pursue direct negligence claims against the employer despite the employer admitting that their employee was acting in course and scope at the time of the accident and their employee was 100% at fault for the accident being caused. The full effect of the Supreme Court’s decision remains to be seen. In praxis, Magill will permit plaintiffs to put on evidence of direct negligence by an employer in front of a jury who cannot assign fault—as fault has already been stipulated to by the defendants. Employers now face the practical risk that plaintiffs will encourage juries to increase damages as a form of punishment against an employer that admits fault but contests the nature and extent of the plaintiff’s injuries. Employers should use this moment to rigorously review and strengthen policies and procedures related to hiring and training in order to limit exposure when plaintiffs assert direct-negligence claims.  [1] Magill v. Werner Enterprises, Inc. of Nebraska, 2025-00892 (La. 11/12/25) [2] Martin v. Thomas, 21-01490 (La. 6/29/22), 346 So.3d 238 [3] Ferguson v. Swift Transp. Co. of Arizona, 17-1570, 2023 WL 173413 (W.D. La. Jan. 12, 2023) [4] Tardo v. Ferrell, 25-123 (La. App. 5 Cir. 5/28/25), 2025 WL 1516837 (unpublished).