Khristy Goins Rismiller, Tutrix For Daniel Edward Goins v. Gemini Insurance Company, Mark Isiah Gordon And Keith Boone Trucking, Llc C/w David Watts Vs. Mark Gordon, Kenneth Boone dba Boone Trucking, Keith Boone Trucking And Gemini Insurance Company

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #049
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 11th day of December, 2020 are as follows:
BY Boddie, J.:
2020-CA-00313 KHRISTY GOINS RISMILLER, TUTRIX FOR DANIEL EDWARD GOINS
VS. GEMINI INSURANCE COMPANY, MARK ISIAH GORDON AND
KEITH BOONE TRUCKING, LLC C/W DAVID WATTS VS. MARK
GORDON, KENNETH BOONE dba BOONE TRUCKING, KEITH BOONE
TRUCKING AND GEMINI INSURANCE COMPANY C/W SHEILA
SMITH VS. GEMINI INSURANCE COMPANY, KENNETH CHAD
BOONE D/B/A BOONE TRUCKING, AND MARK GORDON C/W
SUCCESSION OF RICHARD STEWART, JR., RAYMOND KELLY,
DONNA KELLY, RICHARD STEWART, SR. AND VERA ANITA STEWART
VS. MARK ISIAH GORDON, KENNETH BOONE, KEITH BOONE
TRUCKING, LLC AND
GEMINI INSURANCE COMPANY (Parish of
Concordia)
VACATED IN PART; AFFIRMED IN PART; AND REMANDED. SEE
OPINION.
Retired Judge James H. Boddie, Jr., heard this case as Justice pro tempore,
sitting in the vacant seat for District 4 of the Supreme Court. He is now
appearing as an ad hoc for Justice Jay B. McCallum.
Johnson, C.J., additionally concurs and assigns reasons.
Weimer, J., dissents and assigns reasons.
Crichton, J., dissents and assigns reason.
Crain, J., dissents for the reasons assigned by Justice Weimer.

1
2/11/20
S
UPREME COURT OF LOUISIANA
No
. 2020-CA-0313
KHRISTY GOINS RISMILLER, TUTRIX FOR DANIEL EDWARD GOINS
VS.
GEMINI INSURANCE COMPANY, MARK ISIAH GORDON AND KEITH
BOONE TRUCKING, LLC
C/W
DAVID WATTS
VS.
MARK GORDON, KENNETH BOONE dba BOONE TRUCKING, KEITH
BOONE TRUCKING, LLC, AND GEMINI INSURANCE COMPANY
C/W
SHEILA SMITH
VS.
GEMINI INSURANCE COMPANY, KENNETH CHAD BOONE D/B/A
BOONE TRUCKING, AND MARK GORDON
C/W
SUCCESSION OF RICHARD STEWART, JR., RAYMOND KELLY,
DONNA KELLY, RICHARD STEWART, SR. AND
VERA ANITA STEWART
VS
.
MARK ISIAH GORDON, KENNETH BOONE, KEITH BOONE
TRUCKING, LLC AND GEMINI INSURANCE COMPANY
ON APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT, PARISH OF
CONCORDIA
B
ODDIE, Justice ad hoc∗
∗Retired Judge James H. Boddie, Jr., heard this case as Justice pro tempore, sitting in the vacant
seat for District 4 of the Supreme Court. He is now appearing as an ad hoc for Justice Jay B.
McCallum.

2
T his is a direct appeal by defendant, Gemini Insurance Company, from a
judgment of the district court ho lding La. C.C. arts. 2315.1, 2315.2 and 199
“unconstitutional as applied to children given in adoption” and overruling the
defendants’ peremptory exceptions of no right of action. 1 At issue is whether the
plaintiffs, Daniel Goins and David Watts, two adult children who were given in
adoption as minors , have a right to bring wrongful death and survival actions
stemming from the deaths of their biological father and his two minor children, who
were not given in adoption and are the plaintiffs’ biological half-siblings. After a de
novo review, based on the clear and unambiguous wording of La. C.C. arts. 2315.1
and 2315.2, we conclude that Daniel Goins and David Watts, biological children
given in adoption, are “children of the deceased” and “brothers of the deceased” who
are permitted to bring wrongful death and survival actions arising from the death of
their biological father and half-siblings. In view of our holding that the plaintiffs
have a right to assert survival and wrongful death actions, we need not address their
argument that La. C.C. arts. 2315.1, 2315.2 and 199 are unconstitutional as applied
to children given in adoption.
FACTS AND PROCEDURAL HISTORY
This matter stems from a tragic accident on October 1, 2015, in which an
eighteen-wheeler truck driven by Mark Gordon collided head-on with a vehicle
driven by Richard Stewart, Jr. Mr. Stewart was killed, as well as his two minor
children, George and Vera Cheyanne Stewart. At the time of his death, Mr. Stewart
was married to Lisa Watts Stewart. However, George and Vera Cheyanne were born
1 Review in this court, in the first instance, is proper. Construing the district court’s ruling as
striking down La. C.C. arts. 2315.1, 2315.2, and 199 as unconstitutional, this court has direct
review via the appellate jurisdiction conferred in La. Const . art. V, § 5(D) (“a case shall be
appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional … .”).
This court has supervisory authority over all other Louisiana courts pursuant to La. Const. art. V,
§ 5(A) (“The supreme court has general supervisory jurisdiction over all other courts.”).
Furthermore, as recognized in La. Sup. Ct. Rule X, § 5(b)(b), an application for direct review to
this court is allowed.

3

to Brandie Hardie, with whom Mr. Stewart reportedly had a relationship during his
marriage to Lisa Watts Stewart.
Following the accident, t hree separate survival and wrongful death actions
arising out of the deaths of Mr. Stewart and his minor children were filed in district
court. Two of the lawsuits present claims filed by or on behalf of Daniel Goins and
David Watts, now adults who, as minors, were given for adoption by the Stewarts.
Mr. Goins was adopted by Joyce and George Goins, Mr. Stewart’s aunt and uncle.
Mr. Watts was adopted by his maternal grandparents, Mary and Jimmy Watts.
The driver of the truck, the truck’s owner (Kenneth Boone d/b/a Boone
Trucking), and its insurer (Gemini Insurance Company) have been named as
defendants. The district court consolidated all of the wrongful death and survival
claims, and the defendants filed peremptory exceptions of no right of action against
all claimants. The district court overruled the exceptions. As to the claims of Mr.
Goins and Mr. Watts, which are the only claims now before this court, the district
court ruled that “the biological relationship and dependency” of Mr. Goins and Mr.
Watts was the origin of the right of action and, further, “the fact that Watts [and
Goins] w[ere] adopted does not prevent [them] from bringing survival and wrongful
death claims for the death of [Mr.] Stewart, [their] biological father.” Succession of
Stewart v. Gordon, 17-812, p. 2 (La. App. 3 Cir. 10/3/18), ___ So. 3d ___.
2 The
district court ruled that the plaintiffs had a right of action arising from the deaths of
their half-siblings. Id.

2 The district court further determined that George and Vera Chey anne, the minor children killed
in the accident, had been abandoned by their mother, Brandie Hardie. According to the district
court, pursuant to La. C.C. arts. 2315.1(E) and 2315.2(E), the determination that the mother
abandoned her minor children paved the way for others to recover for the death of the children.
Id.

4

On supervisory review, the court of appeal, in a 4- 3 decision, reversed the
district court’s rulings on the defendants’ exceptions of no right of action. 3 The
majority explained: “It has long been held that children given up in adoption are
divested of their legal rights except as to those relating to inheritance.” Succession
of Stewart, 17-812 at 4, ___ So. 3d at ___ (citing La. C.C. art. 199).
Judges Cooks, Savoie and Conery dissented from the majority’s conclusion
that Mr. Goins and Mr. Watts do not have a right to assert the survival and wrongful
death actions because they were given up for adoption as minors. See Succession
of Stewart, 17-812 at 5-15, ___ So. 3d at ___ (Cooks, J., dissenting in part); see also
id at 14-21, ___ So. 3d at ___ (Savoie, J., dissenting in part); Rismiller, 17-809 at 3-
5, ___ So. 3d ___ (Conery, J., dissenting in part).
The plaintiffs then sought review by this court. They asserted that La. C.C.
arts. 2315.1 and 2315.2, relating to wrongful death and survival actions, are
unconstitutional inasmuch as the court of appeal found those articles provide no right
of action for adopted children to assert wrongful death and survival actions following
the death of a biological parent. Perceiving the constitutional argument to be newly
raised in this court, we pretermitted a decision on the merits and remanded the matter
to the district court to allow the plaintiffs “to amend their petition in an attempt to
state a cause of action.”
4

3 The relevant rulings were set forth in three opinions. In Rismiller v. Gemini Insurance Company,
17-809, p. 3 (La. App. 3 Cir. 10/3/18), ___ So. 3d ___, the court ruled: “For the reasons set forth
in Succession of Richard Stewart, Jr. et al. v. Gordon, et al., 17-812 (La. App. 3 Cir. 10/3/18), ___
So. 3d ___, 2018 WL 4858748, we find the trial court erred in denying Defendants’ exceptions of
no right of action as to Goins’ survival and wrong death claims due to the death of his biological
father and half-siblings.” In Succession of Stewart v. Gordon, 17 -812 at 6, ___ So. 3d ___, the
court ruled: “we find that Goins and Watts have no assertable claims for their biological father’s
death nor their biological half -siblings’ deaths; therefore, the trial court erred in denying
Defendants’ no rights of action as to these claims made by Watts and Goins.” In Watts v. Gordon,
17-811, p. 3 (La. App. 3 Cir. 10/3/18), ___ So. 3d ___, the court ruled: “For the reasons set forth
in Succession of Richard Stewart, Jr. et al. v. Gordon, et al., 17-812 (La. App. 3 Cir. 10/3/18), ___
So. 3d ___, 2018 WL 4858748, we find the trial court erred in denying Defendants’ exceptions of
no right of action as to Watts’ survival and wrongful death claims due to the death of his biological
father had half-siblings.”

5

On remand, the plaintiffs amended their petitions to assert the
unconstitutionality of La. C.C. arts. 2315.1, 2315.2, “and/or” La. C.C. art. 199, and
filed a motion to declare those article s unconstitutional. The district court granted
the motion, holding La. C.C. art s. 2315.1, 2315.2 and 199 are “unconstitutional as
applied to children given in adoption” and overruled defendants’ exceptions of no
right of action. Gemini Insurance Company directly appealed to this court.
LAW AND DISCUSSION
An exception of no right of action involving only a question of law is reviewed
de novo. See Rebel Distributors Corp., Inc. v. LUBA Workers’ Comp., 13-0749, p.
10 La. 10/15/13), 144 So. 3d 825, 833. Except as otherwise provided by law, an
action can be brought only by a person having a real and actual interest, which he
asserts. La. C.C.P. art. 681. See also Reese v. State Department of Public Safety and
Corrections, 03–1615 (La.2/20/04), 866 So.2d 244, 246 . The function of the
exception of no right of action is to determine whether the plaintiff belongs to the
class of persons to whom the law grants the cause of action asserted in the suit. Id.
(citing La. C.C.P. art. 927). The focus in an exception of no right of action is on
whether the particular plaintiff has a right to bring the suit, but it assumes the petition
states a valid cause of action for some person and questions whether the plaintiff in
the particular case is a member of the class that has a legal interest in the subject
matter of the litigation. Id. For purposes of the exception, all well -pleaded facts in
the petition must be taken as true. Miller v. Thibeaux, 14–1107, pp. 6–7 (La.1/28/15),
159 So.3d 426, 430.
Regarding the interpretation of laws, t he Louisiana Civil Code provides
“[w]hen a law is clear and unambiguous and its application does not lead to absurd

4 Rismiller Tutrix for Goins v. Gemini Insurance Company, 18-2089, p. (La. 2/18/19), 263 So. 3d
1145, 1146.

6

consequences, the law shall be applied as written and no further interpretation may
be made in search of the intent of the legislature.” La. C.C. art. 9. “The words of a
law must be given their generally prevailing meaning.” La. C.C. art. 11 (emphasis
added). “Laws on the same subject matter must be interpreted in reference to each
other.” La. C.C. art. 13.
The survival action, found in La. C.C. art. 2315.1, provides:
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 w ords “child”, “brother”, “sister”,
“father”, “mother”, “grandfather”, and “grandmother” include a child,
brother, sister, father, mother, grandfather, and grandmother by
adoption, respectively.

E. For purposes of this Article, a father or mother who has a bandoned
the deceased during his minority is deemed not to have survived him.

The wrongful death action, found in La. C.C. art. 2315.2, provides:
A. If a person dies due to the fault of another, suit may be brought by
the following persons to recover damages which they sustained as a
result of the death:

7

(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. The right of action granted by this Article prescribes one year from
the death of the deceased.

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.

E. For purposes of this Article, a father or mother who has abandoned
the deceased during his minority is deemed not to have survived him.

Louisiana C.C. art. 2315.1 provides that rights of action or instituted actions
for injuries suffered by a person who eventually dies from those injuries do not abate
with death but survive in favor of designated persons. In addition, La. C.C. art.
2315.2 creates an action for damages suffered by certain designated survivors for
the wrongfully ca used death of another. Although clearly separate and distinct
causes of action, both the wrongful death and the survival action s are statutorily
created tort remedies, expressly conferred upon an exclusive list of beneficiaries.
The list of beneficiaries provided by La. C.C. art. 2315.1 is identical to the list set
forth in La. C.C. art. 2315.2 , with the addition of the decedent’s succession
representative as party plaintiff in the absence of any of the listed beneficiaries for
the survival action only. The existence of a member of the first class of beneficiaries

8

exclude all members of lesser classes. Thus, any member of a higher class preempts
the claims of other classes of beneficiaries. Warren v. Richard, 296 So.2d 813
(La.1974). If there is more than one member of the first class of beneficiaries then
funds derived from the survival action are divided equally among all members of the
class. Austrum v. City of Baton Rouge, 282 So.2d 434 (La.1973).
Prior to Act 211 of 1986, the survival and wrongful death actions were
covered generally by La. C.C. art. 2315. Louisiana C.C. art. 2315 was amended in
1960 to provide essentially what is now contained in La. C.C. arts. 2315.1 and
2315.2
. Before the 1960 amendment to La. C.C. art. 2315 , the action survived in
favor of children, “including adopted children and children given in adoption.” See
1948 Acts, No. 333. The 1960 amendment omitted “children given in adoption ”
from the list of statutory beneficiaries. See 1960 Acts, No. 30, § 1. The current
statutory scheme reflects this omission.
Defendant Gemini Insurance Company argues that the deletion of the
language “children given in adoption ” demonstrates the legislature’s intent to do
away with this class of claimants and, therefore, Mr. Goins and Mr. Watts are
without a remedy for the death of their natural father. We disagree.
At issue is the phrase “child or children of the deceased” in Paragraph (A)(1)
of both La. C. C. arts. 2315.1 and 2315.2. A common, or generally prevailing
meaning, of this phrase clearly would be a deceased’s biological child or children.
See Jenkins v. Mangano, 00-790, p. 3 (La. 11/28/00), 774 So. 2d 101, 103, wherein
this court emphasized “that the critical requirement for classification of a person as
a child under Article 2315.2 is the biological relationship between the tort victim
and the child.” While both La. C.C. arts. 2315.1 and 2315.2 include Paragraph (D)
that expands the phrase “child or children of the deceased” to include non-biological
children that the deceased adopted, the se code articles contain no language that

9

narrows the term to exclude biological children of the deceased who were given in
adoption. Both articles provide th at where there is a surviving spouse and child or
children, they are the first in the hierarchy of persons entitled to recover. See La.
C.C. arts. 2315.1 and 2315.2. It is undisputed that Lisa Watts Stewart, the lawful
wife of Mr. Stewart, and his two biological adult sons Mr. Goins and Mr. Watts,
survived Mr. Stewart. Nothing in the plain language of La. C.C. arts. 2315.1 and
2315.2 suggests that if Mr. Goins and Mr. Watts were adopted by another, they
would no longer be “children” or “brother” within the meaning of the two articles.
Defendant further argues that La. C.C. art. 199 precludes the plaintiffs from
bringing wrongful death and survival actions arising from the death of their
biological father and half-siblings. Article 199 provides,
Upon adoption, the adopting parent becomes the parent of the child for
all purposes and the filiation between the child and his legal parent is
terminated, except as otherwise provided by law. The adopted child and
his descendants retain the right to inherit from his former legal parent
and the relatives of that parent.

“Filiation is the legal relationship between a parent and child.” La. C.C. art. 178.
Defendant asserts that Mr. Goins’ and Mr. Watts’ filiation with Mr. Stewart,
terminated upon their respective adoption s and, thus, they cannot be considered
“children” for purposes of La. C.C. art. 2315.1(A)(1) and La. C.C. art. 2315.2(A)(1).
Again, we disagree.
Louisiana C.C. arts. 2315.1 and 2315.2 contain no language that one must
be filiated to the deceased to be considered a “child or children of the deceased.”
Rather those codal articles suggest that a deceased’s biological children, as well as
those who have been filiated to the deceased by adoption, are considered children of
the deceased. As Judge Savoie pointed out in his dissent, “[i]f filiation were required
for one to be considered a deceased’s ‘child’ for purposes of La. Civ. Code arts.
2315.1 and 2315.2, then Paragraph (D) of those articles, which expands ‘child’ to

10

include the deceased’s adopted child, would have no independent meaning.”
Succession of Stewart, 17-812 at 16, ___ So. 3d at ___ (Savoie, J., dissenting).
This court has recognized that the cod al articles governing surviva l and
wrongful death actions are s ui generis and not dependent on any other statute or
codal article. See Levy v. State Through Charity Hospital of Louisiana, 253 La. 73,
216 So. 2d 818 (1968). Therefore, the proper resolution of the issue presented in the
case sub judice involves a logical and straightforward application of the relevant
provisions of the Civil Code. Notably, La. C.C. arts. 2315.1 and 2315.2 do not limit
the term “children” or “brothers” in any way. Thus, giving the words “children” and
“brothers” their generally prevailing meaning, we determine Mr. Goins and Mr.
Watts are claimants under the survival and wrongful death articles because they are
the biological children of the decedent, Mr. Stewart, and half-brothers of George and
Vera Cheyanne Stewart. Our interpretation of the term “children” in La. C.C. arts.
2315.1 and 2315.2 to include biological children given in adoption is entirely
consistent with the definition of children found in La. C.C. art. 35065 of Title 25, Of
the Signification of Sundry Terms of Law Employed in This Code.
In summary, we hold that based on the clear and unambiguous language of
La. C.C. arts. 2315.1 and 2315.2, Mr. Watts and Mr. Goins, the biological children
given in adoption, are “children of the deceased” and “brothers of the deceased” who
are permitted to bring wrongful death and survival actions arising from the deaths of
their biological father and half-siblings. Thus, the district court properly overruled

5 Louisiana C.C. art. 3506(8) provides:

Children. – Under this name are included those persons born of the marriage, those
adopted, and those whose filiation to the parent has been established in the manner
provided by law, as well as descendants of them in the direct line. A child born of
marriage is a child conceived or born during the marriage of his parents or adopted
by them. A child born outside of marriage is a child conceived and born outside
the marriage of his parents.

11

the defendants’ peremptory exceptions of no right of action.
DECREE
Accordingly, that part of the district court judgment declar ing La. C.C. arts.
2315.1, 2315.2 and 199 unconstitutional as applied to children given in adoption is
vacated. Insofar as the district court judgment overruled the defendants’ peremptory
exceptions of no right of action, it is affirmed. The matter is remanded to the district
court for further proceedings.
VACATED IN PART; AFFIRMED IN PART; AND REMANDED.

1

12/11/20

SUPREME COURT OF LOUISIANA

No. 2020-CA-00313

KHRISTY GOINS RISMILLER, TUTRIX FOR DANIEL EDWARD GOINS

VS.

GEMINI INSURANCE COMPANY, MARK ISIAH GORDON AND KEITH
BOONE TRUCKING, LLC

C/W

DAVID WATTS VS.
MARK GORDON, KENNETH BOONE dba BOONE TRUCKING, KEITH
BOONE TRUCKING AND GEMINI INSURANCE COMPANY

C/W

SHEILA SMITH VS.
GEMINI INSURANCE COMPANY, KENNETH CHAD BOONE D/B/A
BOONE TRUCKING, AND MARK GORDON

C/W

SUCCESSION OF RICHARD STEWART, JR., RAYMOND KELLY,
DONNA KELLY, RICHARD STEWART, SR. AND VERA ANITA
STEWART VS.
MARK ISIAH GORDON, KENNETH BOONE, KEITH BOONE
TRUCKING, LLC AND GEMINI INSURANCE COMPANY

ON APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT, PARISH
OF CONCORDIA

JOHNSON, C.J., additionally concurs and assigns reasons.
I fully agree with the majority opinion that, based on the clear and explicit
wording of La. C.C. arts. 2315.1 and 2315.2, these biological children who are
“children of the deceased” and “brothers of the deceased, ” are specifically
designated as claimants permitted to bring wrongful death and survival actions
arising from the deaths of their biological father and siblings. I write separately to
express my opinion that any holding to the contrary would also be inconsistent with

2

the general constitutional principles set forth by this court in Warren v. Richard, 296
So. 2d 813 (La. 1974).
In Warren, the court addressed whether an illegitimate child could recover for
the wrongful death of her biological father when, at the same time, she was also the
legitimate child of another man under the law. Id. at 815. Relying on United States
Supreme Court jurisprudence, this court found the child had a right to recover under
La. C.C. art. 2315:
Until the 1968 decision of the United States Supreme Court in Levy v.
Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, it was always
understood that children, as used in Article 2315, meant legitimate
children.
***
In applying the Equal Protection Clause of the United States
Constitution, the United States Supreme Court decided in a case where
an illegitimate child was suing for damage for the wrongful death of her
mother, that it is invidious to discriminate against them (illegitimate
children) when no action, conduct, or demeanor of theirs is possibly
relevant to the harm that was done the mother. In this holding, striking
down Louisiana ’s statutory scheme which had theretofore barred
recovery by illegitimate children for the wrongful death of their parents,
the Court has, as a constitutional proposition, apparently substituted a
biological classification for the legal classification Louisiana had long
observed.

Again in Glona v. American Guarantee & Liability Insurance Co., 391
U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968), handed down on the
same day as the Levy case, the United States Supreme Court decided
that it would be a denial of equal protection to deny a mother the right
to recover for the wrongful death of her child simply because the child
was born out of wedlock. The opinion declared: “To say that the test of
equal protection should be the ‘ legal’ rather than the biological
relationship is to avoid the issue.”

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31
L.Ed.2d 768 (1972), followed four years after. There the United States
Supreme Court approved a claim for workmen’s compensation benefits
of a dependent, unacknowledged, illegitimate child which had been
denied by the Louisiana courts. In an opinion authored by Mr. Justice
Powell it was held that, by relegating the unacknowledged illegitimate
to a lower priority in the recovery scheme, the Louisiana Workmen’ s
Compensation Act thereby denied him equal protection of the law. ***

Finally in its latest decision on the subject in Gomez v. Perez, 409 U.S.
535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), the United States Supreme
Court said… ”[u]nder these decisions, a State may not invidiously

3

discriminate against illegitimate children by denying them substantial
benefits accorded children generally.”

Id. at 816 -17 (internal citations removed) . In holding the illegitimate child could
bring a wrongful death claim, the Warren court recognized that it may provide more
rights to that child than to the legitimate child because the illegitimate child would
also be able to recover fo r the death of her legal father , but the court did not find
such a result should alter the holding:
However, this concept is not unique to our law. It is specifically
provided that the adopted child, upon his adoption, is not divested of
his right to inherit from his blood parents while at the same time he
inherits from the adoptive parent. La. Civil Code art. 214.

We are not u nmindful of the problems a logical extension of these
holdings may create, such as a child in these circumstances recovering
from both fathers for support and maintenance, or, conversely,
requiring the child to support both fathers in a proper case. La. Civil
Code arts. 227, 229. But we are influenced in this decision by the
constitutional principles announced by the U nited States Supreme
Court to which we must adhere.

Id. at 817.
More recently in Jenkins v. Mangano Corporation , 00-0790 (La. 11/28/00),
774 So. 2d 101, this court considered who is a “child” under Article 2315.2 for
purposes of determining whether the parent of a tort victim , or an informally
acknowledged adult illegitimate child who had not judicially asserted f iliation
timely, had the right to recover in a wrongful death action. In finding the parent had
no right to recover, this court emphasized that “the critical requirement f or
classification of a person as a child under Article 2315.2 is the biological relationship
between the tort victim and the child.” Id. at 103 (citing Warren). This court further
stated “it is of no consequence that the child is legitimate or illegitimate for purposes
of deciding whether the child may bring an action under Article 2315, all children
have the right to bring an action for wrongful death and survival action.” Id. (citing
Levy v. Louisiana, 216 So. 2d 818 (La. 1968)).

4

The same policy or rationale is equally applicable in this case involving
children given in adoption. As set forth in the jurisprudence addressing the rights of
illegitimate children, restricting the rights of a child to bring a wrongful death or
survival action arising from the death of that child’ s biological parent or sibling
solely because the child was given in adoption would violate the central meaning of
the Equal Protection Clause.

12/11/20
SUPREME COURT OF LOUISIANA
No. 2020-CA-00313
KHRISTY GOINS RISMILLER,
TUTRIX FOR DANIEL EDWARD GOINS
VS.
GEMINI INSURANCE COMPANY,
MARK ISIAH GORDON AND KEITH BOONE TRUCKING, LLC
C/W
DAVID WATTS
VS.
MARK GORDON, KENNETH BOONE dba BOONE TRUCKING,
KEITH BOONE TRUCKING AND GEMINI INSURANCE COMPANY
C/W
SHEILA SMITH
VS.
GEMINI INSURANCE COMPANY, KENNETH CHAD BOONE D/B/A
BOONE TRUCKING, AND MARK GORDON
C/W
SUCCESSION OF RICHARD STEWART, JR., RAYMOND KELLY,
DONNA KELLY, RICHARD STEWART, SR. AND
VERA ANITA STEWART
VS.
MARK ISIAH GORDON, KENNETH BOONE,
KEITH BOONE TRUCKING, LLC AND GEMINI INSURANCE
COMPANY
On Appeal from the 7th Judicial District Court, Parish of Concordia
WEIMER, J., dissenting.
Resolution of this matter requires an intricate civilian analysis of multiple
provisions of the Louisiana Civil Code, coupled with an evaluation of constitutional

principles. The attorneys for the parties and the amici have done masterful work in
their analysis addressing the codal provisions.
As the majority of this court indicates, the decision in this matter involves
whether “children given in adoption” have a survival action or wrongful death action
for the deaths of their biological father and their half-siblings. Because the legislature
purposely removed language from the wrongful death and survival actions, which
granted a right of action to “children given in adoption,” it is not the role of a court
to reinsert this language into these codal provisions.
This court is called on to decide whether the district court correctly found a
constitutional infirmity justified overruling the exceptions of no right of action.
However, because of the deference accorded to legislation, which includes a
presumption of its validity,1 jurisprudence dictates that a constitutional question
should not be reached if a case can be decided on other grounds. “Courts are
generally reluctant to address the constitutionality of legislation unless required to do
so by the case and its issues then before the court.” A settled rule is “never to
anticipate a question of constitutional law in advance of the necessity of deciding it.”
Matherne v. Gray Ins. Co., 95-0975, p. 3 (La. 10/16/95), 661 So.2d 432, 434
(quoting Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S.
1, 72 (1961)). Those principles are adhered to in this instance; therefore, first, it must
be resolved whether, as a matter of codal law, the plaintiff children given in adoption
have a right to a survival and wrongful death action for the death of their biological
parent and half-siblings. Only if the statutory analysis forecloses a right of action to
those plaintiffs is it proper to reach the plaintiffs’ additional argument that those
statutes are unconstitutional.
1 See State v. Brenner, 486 So.2d 101, 103 (La. 1986).
2

An exception of no right of action involving only a question of law is reviewed
de novo. See Rebel Distributors Corp., Inc. v. LUBA Workers’ Comp., 13-0749,
p. 10 (La. 10/15/13), 144 So.3d 825, 833. In summary, the major principles attending
that review are:
Except as otherwise provided by law, an action can be brought
only by a person having a real and actual interest, which he asserts. La.
Code Civ. Proc. art. 681. See also Reese v. State Department of
Public Safety and Corrections, 03-1615 (La.2/20/04), 866 So.2d 244,
246. The function of the exception of no right of action is to determine
whether the plaintiff belongs to the class of persons to whom the law
grants the cause of action asserted in the suit. Id. (citing La. Code Civ.
Proc. art. 927). The focus in an exception of no right of action is on
whether the particular plaintiff has a right to bring the suit, but it
assumes the petition states a valid cause of action for some person and
questions whether the plaintiff in the particular case is a member of the
class that has a legal interest in the subject matter of the litigation. Id.
For purposes of the exception, all well-pleaded facts in the petition must
be taken as true. Miller v. Thibeaux, 14-1107, pp. 6-7 (La.1/28/15),
159 So.3d 426, 430.
State in Interest of K.C.C., 15-1429, p. 5 (La. 1/27/16), 188 So.3d 144, 146-47.
Codal Analysis
The codal question here is whether the plaintiffs are “children” for purposes
of a right to bring a wrongful death and survival action under La. C.C. arts. 2315.1
and 2315.2. “The fundamental question in all cases of [codal] construction is
legislative intent and the reasons that prompted the legislature to enact the law.”
SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695, p. 11 (La. 6/29/01), 808
So.2d 294, 302. The analysis begins, as it must, with the codal text. See id., 00-1695
at 12, 808 So.2d at 302.
The survival action is governed by La. C.C. art. 2315.1, which provides:
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:
3

(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.
E. For purposes of this Article, a father or mother who has
abandoned the deceased during his minority is deemed not to have
survived him.
Relative to a wrongful death action, La. C.C. art. 2315.2 provides:
A. If a person dies due to the fault of another, suit may be brought
by the following persons to recover damages which they sustained as a
result of the death:
(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. The right of action granted by this Article prescribes one year
from the death of the deceased.
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.
4

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.
E. For purposes of this Article, a father or mother who has
abandoned the deceased during his minority is deemed not to have
survived him.
The plaintiffs posit that “[t]he definition[s] of ‘children’” and “of ‘brothers’”
under Articles 2315.1 and 2315.2 are “clear and unambiguous, and must be applied
as written.” The plaintiffs contend that notwithstanding that they were given in
adoption to someone else by their late biological father, Mr. Stewart, that they remain
“children” and “brothers” within the meaning of Articles 2315.1 and 2315.2. The
defendants, who bear the burden on the exception of no right of action to demonstrate
otherwise, argue that the legislature has excluded children given in adoption from the
list of eligible wrongful death and survival action claimants. After a review of the
language of the provisions and the legislative actions, I find the no right of action
exception should be sustained. The legislature described a legal relationship of
parent and child when enumerating the list of eligible claimants in Articles 2315.1
and 2315.2, and no relevant legal relationship exists pursuant to La. C.C. art. 199,
which mandates that the previous “filiation between the child and his legal parent is
terminated” as a legal consequence of adoption.
The legislature first provided for wrongful death and survival actions in Article
2315 of the Revised Civil Code of 1870. Those eligible to serve as claimants were
“the minor children or widow of the deceased, or either of them, and in default of
these, … the surviving father and mother, or either of them.” Id. The next
development germane to this case was the legislature’s addition, in 1932, of “adopted
children” to the lists of eligible claimants. See 1932 La. Acts 159, § 1.
5

Then, in 1948, in the first of two even more significant changes germane to this
case, the legislature included both “adopted children and children given in adoption”
in the lists. See 1948 La. Acts 333, § 1 (emphasis added). The second major change
was in 1960, when the legislature rewrote Article 2315 and defined “the words
‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’” to “include a child, brother, sister,
father and mother by adoption, respectively.” See 1960 La. Acts 30, § 1 (emphasis
added). “Words of art and technical terms [such as ‘adopted children,’ ‘children
given in adoption,’ and children ‘by adoption’] must be given their technical meaning
when the law involves a technical matter.” La. C.C. art. 11. As of 1960, the lists of
eligible claimants include children “by adoption,” a term like “adopted children,”
which refers to children who have been added to a parental relationship–a
relationship with the adoptive parents owing manifold duties to those children. See
La. C.C. art. 199. In its 1960 rewrite of Article 2315, the legislature no longer
included “children given in adoption,” a term which refers to the transfer of children
out of one parental relationship into a different and new parental relationship, in the
lists of eligible claimants. See La. C.C. art.199. (“[T]he adopting parent becomes the
parent of the child for all purposes” and the previous “filiation between the child and
his legal parent is terminated.”).
More recently, the survival and wrongful death actions were separately codified
from Article 2315 (now Articles 2315.1 and 2315.2, respectively), and in so doing,
the legislature retained adopted children within the lists of eligible claimants. See
1986 La. Acts 211, § 1; cf. 1948 La. Acts 333, § 1. However, just like the previous
lists, no provision was made for “children given in adoption” to hold a right of action.
See id.
6

This court has long recognized that when the legislature changes the wording
of a code article, “the legislature is presumed to have intended to change the law.”
See Brown v. Texas-La Cartage, Inc., 98-1063, p. 7 (La. 12/1/98), 721 So.2d 885,
889. During the time-frame (dating back to 1870) that the legislature recognized
wrongful death and survival actions, the legislature provided for “children given in
adoption” to be eligible claimants during the years 1948 to 1960. The fact that this
category of claimants once existed, and for a significant period of time, is a
compelling indicator that the change in the law which resulted in the deletion of this
category of claimants was a change the legislature actually intended.2
Significantly, the Civil Code, as a unitary source of law, elsewhere further
elucidates the importance of the legislature having directly designated children “by
adoption” as eligible claimants. Specifically, the weighty consequences of adoption
are indicated in La. C.C. art. 199 (governing the “[e]ffect of adoption”), as follows:
Upon adoption, the adopting parent becomes the parent of the
child for all purposes and the filiation between the child and his legal
parent is terminated, except as otherwise provided by law. The adopted
child and his descendants retain the right to inherit from his former legal
parent and the relatives of that parent.
The first full clause of Article 199 provides two mirror-image concepts that
bear on this case, in which the plaintiffs were adopted before Mr. Stewart’s death.
At the time of adoption, each of the plaintiffs’ adoptive fathers became the parent “for
all purposes.” Id. Obviously, “for all purposes” would include the presently-claimed
purpose of bringing wrongful death and survival claims and, by negative inference,
would exclude the purposes of bringing claims stemming from the deaths of the
2 Neither party references any historical legislative materials beyond the relevant legislative acts.
Independent research yielded no legislative materials shedding any additional light on the intent
behind the relevant legislative acts.
7

pre-adoption family.3 Moreover, and dispelling any doubt as to what “for all
purposes” means, the next stated concept in Article 199 is that from the time of
adoption, the former “filiation between the child and his legal parent is terminated.”
Id.
The termination of the legal relationship between the children given in
adoption and their pre-adoption family distinguishes this case from Jenkins v.
Mangano Corp., 00-0790 (La. 11/28/00), 774 So.2d 101, on which the plaintiffs
rely. In Jenkins, the issue was whether the right of a tort victim’s mother to recover
was negated by the existence of someone with a potentially superior right,
specifically, the right of “an informally acknowledged adult illegitimate child” who
“has not judicially asserted filiation timely.” Id., 00-0790 at 1, 774 So.2d at 102.
Notably, “the critical requirement for classification of a person as a child under
Article 2315.2 is the biological relationship between the tort victim and the child,”
thus, a defendant could defeat a mother’s claim, “as long as the defendant prove[d],
by clear and convincing evidence, that the child was acknowledged by the tort victim
before death.” Id., 00-0790 at 3, 6, 774 So.2d at 103, 106. Therefore, this court’s
ruling in Jenkins relied on proof of a parent/child relationship that the law gave room
to be established, i.e., by parental acknowledgment of filiation. Jenkins does not aid
the plaintiffs here, where the opposite has occurred, i.e., by the parent’s act of giving
3 Noting that Article 199 replaces former La. C.C. art. 214, it is argued that Article 199 tacitly
embraces a right of action for blood relatives given in adoption, pointing out that former Article 214
indicated that “the adopted person and his lawful descendants are... divested of all of their legal
rights with regard to the blood parent or parents and other blood relatives[.]” According to the
plaintiffs, by not mentioning a blood relationship in present Article 199, the legislature did not intend
adoption to terminate any rights stemming from blood relationships. This argument is undone by
the legislature’s choice of the words “for all purposes” in Article 199 to describe the consequence
of adoption relative to the adopting parent(s). Additionally, this argument does not disturb the
analysis, supra, that the legislature’s decision to remove “children given in adoption” from the lists
of eligible wrongful death and survival claimants is a clear indicator of the legislature’s intent that
those persons have no right of action.
8

a child in adoption, the “filiation between the child and his legal parent is
terminated.” See La. C.C. art. 199.
In their discussion of Article 199, the plaintiffs rely on the self-described
exception, i.e., “as otherwise provided by law.” Id. The plaintiffs contend that
Articles 2315.1 and 2315.2 are examples of other provisions for children given in
adoption to have substantive rights vis-à-vis their former legal parents. According
to the plaintiffs, if the legislature had intended for them to be excluded, the legislature
“would have made this explicit … by further amending Articles 2315.1 and 2315.2”
to directly mention that children given in adoption have no right of action.
This argument is rejected because that view of the law is opposite to its actual
structure. It has been long recognized that rights of action for wrongful death and
survival actions are conferred only upon the persons the legislature has specifically
included in the lists of eligible claimants. See Kerner v. Trans-Mississippi
Terminal R. Co., 104 So. 740, 741 (La. 1925); see also Levy v. State Through
Charity Hosp. of La. at New Orleans Bd. of Adm’rs, 216 So.2d 818, 819 (La.
1968) (ruling that tort remedies of wrongful death and survival actions “must be
strictly construed” and “those not named are not afforded a right or a remedy”).
Because adopted children are listed in Articles 2315.1 and 2315.2, but “children
given in adoption” are not listed therein, the legislature clearly indicated that
“children given in adoption” are no longer eligible claimants under the plain text of
those laws.
In a further effort to fit the claims within the exception allowing for a right of
action “as otherwise provided by law” (La. C.C. art. 199), the plaintiffs note that
when Article 199 was enacted in 2009, the legislature “fail[ed] to mention Articles
2315.1 and 2315.2.” According to the plaintiffs, the failure to reference Articles
9

2315.1 and 2315.2 at that time “is evidence that [the legislature] did not intend to
affect the rights of children given in adoption to sue for the wrongful death of their
legal parents.”
In this line of argument, the plaintiffs are partially correct; no relevant change
in the law was intended. Indeed, the comments to the 2009 enactment of Article 199
indicate: “This Article does not change the law as to the effect of an adoption.” La.
C.C. art. 199, cmt. (a). The comments further suggest that the list of rights that are
unchanged is illustrative, not exhaustive. See La. C.C. art. 199, cmt. (b) (employing
the phrase “[a]mong the exceptions” when describing the existence of certain
inheritance rights, retaining “the legal relationship between a child who has been
adopted and a legal parent if the legal parent is married to the adoptive parent,” and
allowing the legal parent an avenue to seek visitation rights.).
However, the plaintiffs are incorrect to suggest that when Article 199 was
enacted, the legislature already intended “children given in adoption” to be wrongful
death and survival action claimants. As discussed earlier, the legislature had already
removed “children given in adoption” from the lists of eligible wrongful death and
survival action claimants. See 1960 La. Acts 30, § 1; compare 1948 La. Acts 333, §
1. See also n.4, infra (listing appellate court cases decided before the enactment of
Article 199, holding that children given in adoption were not eligible as wrongful
death or survival action claimants). Therefore, the stability in the law that the
plaintiffs identify through the enactment of Article 199 already excluded “children
given in adoption,” such as the plaintiffs, from the lists of eligible claimants. See also
La. Ch.C. art. 1256(A) (added by 1991 La. Acts 235, § 12, effective January 1, 1992)
(“the adopted child and his lawful descendents are relieved of all legal duties and
divested of all legal rights with regard to the parents and other blood relatives.”).
10

As another text-based argument, the plaintiffs urge that this court should draw
on the Civil Code’s general definitional provision, Article 3506, in which “children”
includes “those persons born of the marriage.” La. C.C. art. 3506(8). The plaintiffs
argue that this definition should be applied to the lists of wrongful death and survival
claimants. The plaintiffs point out that although they were given in adoption, each
of them was born of Mr. Stewart’s marriage and would, therefore, be an eligible
claimant if the lists of claimants in Articles 2315.1 and 2315.2 were expanded
through Article 3506. However, this argument would necessarily divide children
given in adoption into two classes. The class of children given in adoption who were
“born of [a] marriage” would have a right of action. However, because illegitimate
children are not covered by the definition contained in Article 3506, the class of
illegitimate children would have no right of action. A cardinal rule of interpretation
is that courts must avoid construing a code article in a manner that yields an absurd
result. See La. C.C. art. 9 (“When a law is clear and unambiguous and its application
does not lead to absurd consequences, the law shall be applied as written and no
further interpretation may be made in search of the intent of the legislature.”); see also
Sultana Corp. v. Jewelers Mut. Ins. Co., 03-0360, p. 4 (La. 12/3/03), 860 So.2d
1112, 1116. The constitutional infirmity of excluding illegitimate children from a
class of claimants who would otherwise be eligible for a right of action was
recognized long ago. See generally Levy v. Louisiana, 391 U.S. 68 (1968).
Therefore, using Article 3506 as a point of reference when interpreting Articles
2315.1 and 2315.2 plaintiffs’ proposal would produce the absurd result of dividing
claimants along lines of legitimacy and illegitimacy, a classification already found to
be unconstitutional.
11

Another principle of codal construction also prevents acceptance of the
plaintiffs’ proposed definition. Pursuant to La. C.C. art. 13, “[l]aws on the same
subject matter must be interpreted in reference to each other.” Consequently,
“[u]nder our long-standing rules of [codal] construction, where it is possible, courts
have a duty in the interpretation of a [code article] to adopt a construction which
harmonizes and reconciles it with other provisions dealing with the same subject
matter.” Louisiana Mun. Ass’n v. State, 04-0227, p. 36 (La. 1/19/05), 893 So.2d
809, 837 (quoting Hollingsworth v. City of Minden, 01-2658, p. 4 (La. 6/21/02),
828 So.2d 514, 517). Plainly, by employing the phrase “‘child’ ... by adoption,” the
lists of eligible claimants in Articles 2315.1 and 2315.2 must take into account the
effects of adoption. As noted earlier, the Civil Code speaks directly to the effects of
adoption in Article 199. If the plaintiffs’ argument that children given in adoption
who were the product of the decedent’s marriage had a right of action under Articles
2315.1 and 2315.2 were accepted, no effect would be given to the provision in Article
199 that “the filiation between the child and his legal parent is terminated” as an
effect of adoption. The requirement to give effect to each of these interrelated laws,
Articles 199, 2315.1, and 2315.2, compels the conclusion that definitionally, the
plaintiffs have no right of action stemming from the deaths of Mr. Stewart or their
half-siblings.4
Constitutional Analysis
4 Various lower courts have held that, because a claimant was given in adoption to another parent,
the claimant had no right of action stemming from the death of a biological parent. See Hernandez
v. State, ex rel. Dept. of Transp. & Dev., 02-0162, 02-0163 p. 16 (La.App. 4 Cir. 10/16/02), 841
So.2d 808, 819-20; Nelson v. Burkeen Const. Co., 605 So.2d 681, 683 (La.App. 2 Cir. 1992);
Domingue v. Carencro Nursing Home, Inc., 520 So.2d 996, 997 (La.App. 3 Cir. 1987); Simmons
v. Brooks, 342 So.2d 236, 237 (La.App. 4 Cir. 1977). Neither the plaintiffs’ text-based argument,
nor their constitutional challenge discussed below, provides justification for overruling those cases.
Despite this line of cases, the legislature has not acted to overrule them, which is consistent with the
above discussed earlier removal of “children given in adoption” from the list of those eligible to
bring survival and wrongful death actions.
12

Having found the text of Articles 2315.1 and 2315.2 do not provide the
plaintiffs a right of action, the question of whether these laws are constitutionally
valid is addressed. Notably, the plaintiffs have not only challenged the
constitutionality of the Civil Code’s survival and wrongful death provisions, Articles
2315.1 and 2315.2, but have also challenged the “[e]ffect of adoption” provision,
Article 199. The simultaneous attack on those tort provisions and on the adoption
provision reveals the crux of the plaintiffs’ argument to be this: excluding children
given in adoption from a right of action is unconstitutional because adoption excludes
recovery. However, both premises of this argument make essentially the same point;
therefore, the argument is unpersuasively circular. Even so, for thoroughness, the
analysis continues.
According to the plaintiffs, the insurer’s exceptions of no right of action rely
on these impermissible grounds: “Articles 2315.1, 2315.2 and 199 would
unconstitutionally create two classes of children, biologically indistinguishable from
each other except that one class of children had been given in adoption and the other
had not.” Such classification, the plaintiffs argue, deprives them of federal and state
constitutional rights to equal protection, due process, and open access to courts.
Under federal and state jurisprudence, the review required of the classification
the plaintiffs have challenged is clear: “When a [law] does not interfere with
fundamental personal rights or draw upon inherently suspect distinctions such as race
or religion, the jurisprudence requires only that the classification challenged be
rationally related to a legitimate state interest.” Lakeside Imports, Inc. v. State,
94-0191, p. 4 (La. 7/5/94), 639 So.2d 253, 256 (citing City of New Orleans v.
Dukes, 427 U.S. 297, 301-05 (1976), and Harry’s Hardware, Inc. v. Parsons, 410
So.2d 735, 737 (La. 1982)). Indeed, courts have applied the aforementioned standard,
13

known as rational basis review, to claims that classifications based on adoptive status
were unconstitutional.5 See Cabrera v. Attorney Gen. United States, 921 F.3d 401,
404 (3d Cir. 2019) (regarding a claim to citizenship derived from adoptive father)
(citing Brehm v. Harris, 619 F.2d 1016, 1020 (3d Cir. 1980) (examining denial of
social security benefits to child adopted after parent’s disability benefits began));
Dent v. Sessions, 900 F.3d 1075, 1082 (9th Cir. 2018) (“Adoptive parents are not a
protected class and, therefore, rational basis review applies to that distinction as
well.”); Smart v. Ashcroft, 401 F.3d 119, 122 (2d Cir. 2005) (“There is no
suggestion here that adopted children are a ‘protected’ class entitled to invoke
heightened scrutiny.”). Accordingly, the following principles further guide the
concurrent federal and state law analysis for constitutionality:
While equal protection claims may be subject to a different
analysis under the federal and state guarantees, a minimal standard of
review applies under both provisions where, as here, there is no
fundamental right, suspect class, or enumerated characteristic alleged as
the basis for discrimination. Progressive Security Ins. Co. v. Foster,
97-2985 (La.4/23/98), 711 So.2d 675, 685-87. Absent a “suspect class”
of persons or a “fundamental right,” classifications are set aside only if
they are based solely on reasons totally unrelated to the pursuit of the
state’s goals and only if no grounds can be conceived to justify them.
Frederick v. Ieyoub, 762 So.2d at 148 (quoting Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982)).
5 The plaintiffs suggest application of some form of heightened scrutiny to classifications based on
adoption based on Levy, supra. In Levy, the Court ruled a classification that excluded illegitimate
children from wrongful death and survival action recovery was unconstitutional. Levy, 391 U.S. at
72. The suggestion that Levy applies here because the instant case does not deal with any class of
children unaffiliated with a parent is rejected. Rather, adopted children are filiated with their
adoptive parents. See La. C.C. art. 199. For similar reasons, there is no justification for a heightened
standard of review based on Warren v. Richard, 296 So.2d 813, 816-17 (La. 1974) (a child
presumed to be the legitimate child of another man could not be barred from recovery for biological
father’s death). On those unique facts, the ruling in Warren was premised on “the biological
relationship and dependency” of the child. Again, by operation of Article 199, there is no duty of
dependency between the biological father and the children given in adoption to another because
filiation is terminated. The concept of biological relationship that is relevant in considering the
unfounded discrimination between legitimate and illegitimate children does not equate to the new
legal relationships formed in the adoption process.
14

American Int’l Gaming Ass’n, Inc. v. Louisiana Riverboat Gaming Comm’n,
00-2864, p. 15 (La.App. 1 Cir. 9/11/02), 838 So.2d 5, 17.
In a case such as this, governed by rational basis review, “the law creating the
classification is presumed to be constitutional and the party challenging its
constitutionality has the burden of proving it unconstitutional by showing the
classification does not suitably further any appropriate state interest.” City of New
Orleans v. Louisiana Assessors’ Ret. & Relief Fund, 05-2548, p. 37 (La. 10/1/07),
986 So.2d 1, 27. Thus, the state is not obligated, as the plaintiffs suggest, to come
forward with record evidence of a “rational basis … to treat children given in
adoption differently from children not given in adoption, under the wrongful death
laws.” Demonstrating the lack of a rational basis is the plaintiffs’ burden. Id. The
plaintiffs attempt to meet their burden of proof through their contention that not
including children given in adoption is not rational, “particularly where, as here, those
children never knowingly or voluntarily relinquished their rights.”
The complaint of a lack of consent to the legal effects of their adoption is
simply unequal to the enormous task of sweeping aside the legal principles that are
obstacles to the plaintiffs’ claims. The adoption of minors, which, as noted earlier,
lies at the heart of the plaintiffs’ constitutional attack, has been a part of the Civil
Code for over 150 years. See Succession of Teller, 21 So. 265 (La. 1897) (noting
“the legislature first, in 1865, and by subsequent enactments, authorized adoption”).
By nature of their minority, the consent of minors is not a required factor for valid
adoptions.6 Furthermore, as it concerns the legislature’s justification for limiting the
6 See, e.g., La. Ch.C. art. 1122 (describing contents needed for a parent’s act of surrender of parental
rights, including the declaration in section (B)(6) “[t]hat the parent consents to an adoption which
consent is final and irrevocable.”). Cf. La. C.C. art. 213 (as to adults, “[t]he adoptive parent and the
person to be adopted shall consent to the adoption in an authentic act of adoption.”).
15

category of claimants in La. C.C. arts. 2315.1 and 2315.2, ample grounds have been
recognized in the jurisprudence. As here, in the context of a constitutional challenge,
the following observations were made to the stated limitations:
It has been recognized that, of necessity, the legislature was
burdened with a need to place some reasonable limitation on the number
of potential beneficiaries and that this limitation has obvious benefit to
judicial efficiency and economy. … .
[T]he chosen classes reasonably embrace those individuals that are
likely to be most affected by the death of the deceased and yet reflect a
reasonably appropriate limitation on the right of action.
Estate of Burch v. Hancock Holding Co., 09-1839, p. 9 (La.App. 1 Cir. 5/7/10), 39
So.3d 742, 749 (emphasis added) (citing Allen v. Burrow, 505 So.2d 880, 887-88
(La.App. 2 Cir. 1987)). Relatedly, the court in Allen explained: “It has been
recognized that, of necessity, the legislature was burdened with a need to place some
reasonable limitation on the number of potential beneficiaries” for survival actions.
Id., 505 So.2d at 887. Children who depend on a parent for support would be
required to share a tort recovery with children born of the marriage who, because they
were given in adoption, would be potential strangers to the family of the deceased
parent.
Thus, under the de novo application of the rational basis test, ample
justification is found to uphold La. C.C. arts. 199, 2315.1, and 2315.2 against the
plaintiffs’ claim that those laws unconstitutionally deprive them of a right of action.
In a related vein, the plaintiffs’ claim that these laws deny them due process or access
to the courts is unavailing. See Miles v. Illinois Cent. Gulf R. Co., 389 So.2d 96,
98-99 (La.App. 4 Cir. 1980). In Miles, the court ruled that a deprivation of a property
right sufficient to implicate due process exists “only to an injured party who ‘has a
cause of action.’” Id. at 98 (quoting Burmaster v. Gravity Drainage Dist. No. 2 of
16

St. Charles Par., 366 So.2d 1381, 1387 (La. 1978)). As the Miles court explained:
“Here, appellant does not have a cause or right of action; she has no claim recognized
by our law.” Id., 389 So.2d at 98-99. Similarly, “Appellant has had full access to the
courts. ... [S]he simply has no claim recognized by our law.” Id. at 99.
Conclusion
In conclusion, the defendants’ exceptions raising the objection of no right of
action, and the plaintiffs’ corresponding objections, have required an examination of
how adoption affects the construction and constitutionality of the Civil Code’s
provisions for wrongful death and survival actions. As constructed, the wrongful
death and survival provisions, Articles 2315.1 and 2315.2, contain lists of eligible
claimants. Those lists include children “by adoption,” a term which refers to children
who have been added to a parental relationship–a relationship with the adoptive
parents owing manifold duties to those children. See La. C.C. art. 199. No longer
included in the lists of claimants established in Articles 2315.1 and 2315.2 are
“children given in adoption,” a term which refers to the transfer of children out of one
parental relationship into a different and new parental relationship. See La. C.C. art.
199.
The legislature’s removal of “children given in adoption” from the lists of
eligible claimants for wrongful death and survival actions is the clearest indicator of
the legislature’s intent. The legislature’s former authorization of “children given in
adoption” as claimants existed for significant period of time (during 1948-1960),
which indicates both a realization of the reach of that language and an understanding
of the consequences when the legislature chose to remove “children given in
17

adoption” as eligible claimants. In the years following the removal of “children given
in adoption,” the legislature has not expanded the lists of eligible claimants by
returning “children given in adoption” to the lists presently found in La. C.C. arts.
2315.1 and 2315.2. It is not the role of this court to re-insert language into codal
enactments the legislature expressly and specifically removed.
There is no perceived constitutional impediment to the legislature’s decision
to not include “children given in adoption” in the lists of eligible claimants. Such
children have moved into a new parental relationship, becoming children “by
adoption,” who are eligible claimants in the unfortunate occurrence of the tortious
death of their adoptive parents. See La. C.C. arts. 2315.1(D) and 2315.2(D).
Likewise, the transfer of children into a new parental unit as children “by
adoption” terminates, for purposes of wrongful death and survival actions, any
connection between the “children given in adoption” and any biological siblings who
were not “given in adoption.” See La. C.C. arts. 199, 2315.1(D), and 2315.2(D).
For these reasons, I very respectfully dissent.
18

12/11/20

SUPREME COURT OF LOUISIANA

No. 2020-CA-00313

KHRISTY GOINS RISMILLER, TUTRIX FOR DANIEL EDWARD GOINS

VS.

GEMINI INSURANCE COMPANY, MARK ISIAH GORDON AND KEITH
BOONE TRUCKING, LLC

C/W

DAVID WATTS VS.
MARK GORDON, KENNETH BOONE dba BOONE TRUCKING, KEITH
BOONE TRUCKING AND GEMINI INSURANCE COMPANY

C/W

SHEILA SMITH VS.
GEMINI INSURANCE COMPANY, KENNETH CHAD BOONE D/B/A
BOONE TRUCKING, AND MARK GORDON

C/W

SUCCESSION OF RICHARD STEWART, JR., RAYMOND KELLY,
DONNA KELLY, RICHARD STEWART, SR. AND VERA ANITA
STEWART VS.
MARK ISIAH GORDON, KENNETH BOONE, KEITH BOONE
TRUCKING, LLC AND GEMINI INSURANCE COMPANY

ON APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT, PARISH
OF CONCORDIA

Crichton, J., dissents and assigns reasons:

I dissent for the reasons assigned by Justice Weimer. The legislative history
and in pari materia interpretation of C.C. arts. 199, 2315.1 and 2315.2 support the
conclusion that children given in adoption do not qualify as “children” for purposes
of survival and wrongful death actions. Contrary to the majority’s assertion
otherwise, the termination of filiation, as provided by C.C. art. 199, must be
interpreted to alter whether a person is a “child” by law. C.C. art. 178 (“Filiation is
the legal relationship between a child and his parent.”) . The term s “child” and

“children” appear over one hundred times in the Civil Code alone. E .g., C.C. art.
221 (“The father and mother who are married to each other have parental authority
over their minor child during the marriage.”). Interpreting all references in the Civil
Code to “children” or “child” to necessarily include children given in adoption
ignores C.C. art. 199 entirely and guts its effect.
Of course, an adopted child must have at least equal rights per the Civil Code.
However, I write separately to highlight that the majority’s interpretation would lead
to an absurd result, as it has the potential to double the rights of a child given in
adoption by maintaining their rights in conjunction with their biological as well as
adoptive parents. With respect to the wrongful death and survival action statutes,
for example, a child given in adoption would collect twice the amount as a child not
given in adoption if both their biological and adoptive parents were killed by the
fault of others. See C.C. art. 2315.1 ( defining “child” to include children by
adoption”); C.C. art. 2315.2 (same). This is contrary to the intent of the law, which
is to equalize children given in adoption unless otherwise provided. See C.C. art. 199
(providing that exceptions to the termination of filiation may be provided by law and
including therein an express exception for inheritance rights). Because I do not
believe the legislature intended to carve out an exception to C.C. art. 199 simply by
the use of the terms “child” and “children,” and for the reasons more fully provided
by Justice Weimer, I dissent.