David C. Pellegrin
It can be extremely traumatic and stressful when a loved one passes due to the negligence of someone else. Often, bills start piling up, and if the deceased provided financial support to dependents or other family members, a family’s financial future could be a stake. It is important to act quickly to hold the negligent party and its insurer responsible, as Louisiana has strict time limits for filing negligence lawsuits.
One thing family members want to avoid is fighting over who has the right to bring the lawsuit. The Louisiana Legislature has taken much of the guesswork out of that process, prioritizing the needs of those most financially at risk due to the death of the deceased. Many people assume that the succession of the deceased is the proper party to file a lawsuit. In Louisiana, this is true only when the deceased leaves behind no child, sibling, parent, or grandparent.
Wrongful death and survival actions are governed by Louisiana Civil Code articles 2315.1 and 2315.2. Wrongful death actions cover damages due to survivors arising from the death. These can include loss of love and affection, loss of services, loss of support, medical expenses and funeral expenses. Clark v. G.B. Cooley Service, 35,675 (La. App. 2d Cir. 4/5/02), 813 So. 2d 1273. Survival actions cover damages suffered by the deceased before his or her death, such as pre-death pain, suffering, and fear of death, if any. To recover for a survival action, the plaintiff must show the deceased lived between the accident and his or her death for at least an instant.
La. Civil Code art. 2315.1, which governs survival actions, states:
A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.
B. In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased’s succession representative in the absence of any class of beneficiary set out in Paragraph A.
C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
D. As used in this Article, the words “child”, “brother”, “sister”, “father”, “mother”, “grandfather”, and “grandmother” include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.
La. Civil Code art. 2315.2, which governs wrongful death actions, contains substantially the same language. These code articles operate to grant the causes of action to closely related survivors directly, without the necessity of having to pass through the estate.
Therefore, if a deceased person leaves behind a descendant or a spouse, the deceased’s parents have no cause of action for either wrongful death or survival, and so on. The succession only comes into play if none of the relatives mentioned in the code articles survive the deceased. This simplifies the process for the courts, the defendants, and the survivors of the deceased who are likely most in need of financial help. Successions can be complicated, often dividing ownership interests among multiple people. It is important in a tort systems like Louisiana’s to be able to quickly determine who has the right to sue and who does not.
These principles are discussed in the case Succession of Richard Stewart, Jr. et al. v. Gordon, et al., 17-812 (La.App. 3 Cir. 10/3/18), 316 So.3d 1052. In this case, because the deceased left a surviving spouse, the succession of deceased had no cause of action, and the Court dismissed the succession’s case, adhering to the Legislature’s will. However, relatives of people killed due to the negligence of others should understand that if the deceased leaves no child, sibling, parent, or grandparent, a succession must be opened in order to sue for damages.
The Pellegrin Firm is a law firm in Metairie, Louisiana that represents survivors in wrongful death suits. The Pellegrin Firm represents people throughout the New Orleans area and throughout the State of Louisiana. The Pellegrin Firm can be reached at 504-405-3245 or via email at email@example.com.