Darlene Webber Versus Continental Casualty Company and Cristian P. Silva Law Office, LLC

DARLENE WEBBER NO. 24-C-378

VERSUS FIFTH CIRCUIT

CONTINENTAL CASUALTY COMPANY AND COURT OF APPEAL
CRISTIAN P. SILVA LAW OFFICE, LLC
STATE OF LOUISIANA

February 11, 2025

Linda Wiseman
First Deputy Clerk

IN RE DARLENE WEBBER

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DANYELLE M.
TAYLOR, DIVISION "O", NUMBER 834-923

Panel composed of Judges Fredericka Homberg Wicker,
Stephen J. Windhorst, and John J. Molaison, Jr.

WRIT GRANTED, PARTIAL SUMMARY JUDGMENT REVERSED

This matter is before us on an application for supervisory writs filed herein by

plaintiff-appellant, Darlene Webber (“Ms. Webber”) from the judgment of the

district court denying Ms. Webber’s Motion for Partial Summary Judgment on the

issue of whether La. R.S. 9:5605.2, which became effective July 1, 2022, is to be

applied retroactively or prospectively only. La. R.S. 9:5605.2 provides that a

plaintiff’s damages in a legal malpractice action are limited to the maximum amount

of damages the plaintiff could have collected in the underlying action but for the

negligence of the attorney, commonly known as the “collectability rule.”1 For the

reasons stated below, we grant Ms. Webber’s application and hold that R.S. 9:5605.2

1
The statute provides:
In an action for damages by a client against an attorney, the client’s recovery against the
attorney shall be limited to the amount of damages which the attorney shows by a
preponderance of the evidence would have been the maximum amount of damages that the
client could have collected in the client’s underlying action in which he was represented
by the attorney.

24-C-378

may be applied only prospectively and does not apply to her cause of action which

vested prior to the effective date of the statute.

FACTS AND PROCEDURAL HISTORY

On November 11, 2019, Ms. Webber’s husband was murdered, while standing

on his lawn, by his next-door neighbor, Lawrence Sly, Sr. (“Sly”), who was arrested

and charged in conjunction with the incident. On October 23, 2020, Ms. Webber

retained Christian P. Silva and his law firm, Christian P. Silva Law Office, LLC

(collectively, “Silva”), and William R. Penton, III (“Penton”), an attorney who, at

the time, was employed by Silva, to file a wrongful death and survival action in

conjunction with the death of her husband. Silva/Penton did not timely file the

lawsuit on or before November 11, 2020, and Ms. Webber’s claims prescribed.2

On June 22, 2022, Sly was convicted of second-degree murder (La. R.S.

14:30.1). Thereafter, Ms. Webber contacted Silva and/or Penton to inform him/them

that she would be providing an impact statement at Sly’s sentencing hearing, which

was to be held on July 11, 2022. She was requested to stop by Silva’s offices

following her appearance at the sentencing hearing. It was at that point that Penton

apparently realized that he had allowed Ms. Webber’s claims to prescribe and so

notified Silva.

As requested, Ms. Webber appeared at Silva’s offices after the sentencing

hearing and met with Silva, who informed her that her claim had not been timely

filed and was therefore barred by prescription and that she had a right to file a

malpractice claim against the firm. At that time, Silva presented Ms. Webber with a

letter that he had prepared (the “Silva Letter”) and asked her to sign it. Silva claimed

in the letter that he had only just heard of Ms. Webber and her lawsuit, that Penton

2
Penton was the attorney with whom Webber had her initial consultation on October 23, 2020, and who
signed her as a client of the firm. Penton is covered under Silva’s Malpractice Policy, as demonstrated in
the Answer of Continental Casualty Company’s (“Continental[‘s]”) Sixth Affirmative Defense, set forth in
its Answer (filed January 5, 2023) to Ms. Webber’s Petition for Damages against Silva, Penton and
Continental (filed November 11, 2022).
2

was not authorized to accept cases on behalf of the firm, that the engagement letter

signed by Ms. Webber was not the firm’s engagement letter and that there were

numerous other irregularities in the procedures employed in purportedly signing Ms.

Webber as a client and the paperwork retained by Penton. Silvia further stated in

the Silva Letter that had he been aware of Ms. Webber’s case, he would not have

agreed to take it because there was insufficient time between the date Ms. Webber

appeared at the firm seeking representation and the prescription date, and because

the defendant was not a person of sufficient means to satisfy a judgment.

Ms. Webber refused to sign the Silva Letter and immediately retained counsel

to file a legal malpractice action against Silva and Penton and their malpractice

carrier, Continental Casualty Insurance Company (“Continental”).3 Ms. Webber’s

Petition for Damages (the “Petition”) against Silva, Penton and Continental was filed

on November 11, 2022. Continental answered the Petition on January 5, 2023, and

Silva and Penton answered on January 19, 2023. Both Answers asserted an

affirmative defense of lack of collectability under La. R.S. 9:5605.2.

Ms. Webber filed a Motion for Partial Summary Judgment on the Defense of

Collectability on May 2, 2024, contending that when the legislature enacted R.S.

9:5605.2, which became effective July 1, 2022, it did not express whether it intended

the statute to be retroactive and that, since R.S. 9:5605.2 represents a substantive

change in the law, it cannot be applied retroactively. The defendants opposed the

Motion for Partial Summary Judgment, arguing that, because Acts 2022, No. 285,

expressly provides that the Act is intended to overrule the Louisiana Supreme

Court’s decision in Ewing v. Westport Ins. Co., 20-339 (La. 11/19/2020), 315 So.3d

3
There are inconsistencies in the facts as recited by Webber’s counsel both in her district court pleadings
and in her writ application. He states that Webber did not become aware of Silva’s malpractice until July
19, 2022, but if, as stated, she met with Silva on July 11, and Silva presented her with the Silva Letter
advising her of the failure to timely file suit, she would have been aware on July 11, 2022. She met with
the D’Amico firm on July 18, 2022 to retain them to file a legal malpractice suit against Silva and Penton,
but her attorney has represented that she was unaware of her claims against Silva and Penton until July 19,
2022.
3

175, the statute is interpretative or curative in nature and should be applied

retroactively.

Ms. Webber’s Motion for Partial Summary Judgment came on for hearing

on July 9, 2024. After hearing the arguments of counsel, the district court ruled from

the bench, denying the Motion for Partial Summary Judgment. The district court

found that the statute is not substantive and therefore, applies retroactively and

prospectively. The court reasoned that R.S. 9:5605.2 does not deprive Ms. Webber

of any rights because she still has her claim for legal malpractice and still has to

prove the elements of the legal malpractice claim, including her full damages. In

that sense, according to the district court, the statute does not take anything from Ms.

Webber; it only gives the Silva/Continental the right to assert an affirmative defense

of lack of collectability in order to reduce Silva’s obligation and it is his burden to

so prove, if he can. Judgment denying Ms. Webber’s Motion for Partial Summary

Judgment was entered on July 15, 2024.

On August 8, 2024, Ms. Webber filed a Notice of Intent to Apply for

Supervisory Writ, which was granted by the district court on August 12, 2024. Ms.

Webber filed the instant Application for Supervisory Review of the Order Denying

Plaintiff’s Motion for Summary Judgment on the Issue of the Defense of

Collectability under La. R.S. 9:5605.2 on August 16, 2024 (the “Application”).

Silva filed an Opposition to the Application (the “Opposition”) on September 13,

2024.

ANALYSIS

This application presents the purely legal question whether La. R.S. 9:5605.2

affects substantive rights and applies prospectively only or if the statute is purely

remedial and therefore applies retroactively and prospectively. If the statute applies

retroactively, Ms. Webber’s recovery against Silva in her underlying malpractice

lawsuit will effectively be worthless, since Sly is incarcerated and serving a life

4

sentence. We have found no case addressing the issue of retroactivity of La. R.S.

9:5605.2. Thus, the issue presented is res nova, as was the issue presented to the

Louisiana Supreme Court in Ewing, the case that the legislature sought to overturn

by enacting La. R.S. 9:5605.2. Although res nova, we find that there is codal and

statutory authority, as well as jurisprudence, sufficient to inform our ruling in this

case. We begin our analysis with a discussion of Ewing.

A. Ewing

Silva contends that because La. R.S. 9:5605.2 expressly overrules Ewing, the

statute is remedial and applies retroactively. Ewing was a legal malpractice action

in which the Louisiana Supreme Court was called upon to determine the res nova

issue of whether a plaintiff’s damages in a legal malpractice action “are limited to

the amount she could have actually collected against the tortfeasor in the underlying

lawsuit.” 20-339 at p. 1; 315 So3d at 176. The Court found that proof of collectability

is not a necessary element for a plaintiff to establish a claim for legal malpractice,

“nor can collectability be asserted by an attorney as an affirmative defense in a legal

malpractice action.” Id.

In that case, as here, the attorney failed to timely file the client’s lawsuit, resulting

in the running of prescription and the loss of the right to sue, after which the client

filed a legal malpractice claim against the attorney. The attorney/client relationship

was stipulated, as was the failure to timely file a petition for damages. It was also

stipulated that the plaintiff would have been successful in her lawsuit against the

tortfeasor. Thus, the attorney’s duty to the client and breach of that duty were both

established, leaving only the element of damages to be litigated.

The attorney who had committed the malpractice asserted, through a motion for

partial summary judgment, that the former client’s recovery “could be no greater

than her potential recovery in the underlying personal injury lawsuit [and that]

recovery…should be capped at [the tortfeasor’s] insurance policy limits,” in that

5

case, $30,000.00. Id. at p. 2; 315 So.3d at 177. The district court agreed with the

attorney, on the basis that the tortfeasor had testified at his deposition that if a

judgment above the limits of his insurance policy had been awarded against him, he

would have filed bankruptcy. The district court reasoned that if the attorney were

not permitted to assert a collectability defense, then “where there is limited insurance

coverage, [the plaintiff] would be better off if their attorney committed malpractice,

because the attorney would have more coverage than that underlying coverage.” Id.

at pp. 2-3; 315 So.3d at 177. The district court found that such a result could not be

countenanced.

The Third Circuit Court of Appeal reversed, finding that, based on the holdings

of the Louisiana Supreme Court in Rodriguez v. Traylor, 468 So.2d 1186, 1188 (La.

1995 (holding that “the wealth or poverty of a party to a lawsuit is not a proper

consideration in the determination of compensatory damages”) and Costello v.

Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129, 138 (holding that “[a] plaintiff can

have no greater rights against attorneys for the negligent handling of a claim than

are available in the underlying claim”), collectability is not an issue properly

considered in a legal malpractice claim. The Third Circuit held that:

[T]he Defendants cannot rely on a hypothetical situation of bankruptcy
to limit Ms. Ewing’s recovery. It is just as possible that Mr. Melancon
[the defendant in the underlying action] may not file bankruptcy and
the judgment may become collectible in the future should Mr.
Melancon receive some money from other sources…Ms. Ewing had a
right to judgment for the recovery of the full amount of her
damages…without the consideration of his ability to pay….An inability
to pay Ms. Ewing does not relieve Mr. Melancon of the obligation to
pay….Because of [the attorney’s] negligence, we will never know what
Ms. Ewing would have collected from Mr. Melancon. [The attorney]
can have no greater rights in his defense of legal malpractice than Mr.
Melancon would have had in the underlying suit. Ms. Ewing is entitled
to the same rights against the defendants as she had against Mr.
Melancon…Collectability could not be raised in the underlying lawsuit
and should not be considered in Ms. Ewing’s malpractice claim against
the Defendants either.
Ewing v. Westport Ins. Corp., 19-551 (La. App. 3 Cir. 2/5/20), 290 So.3d 708,
711.

6

The attorney/defendant filed an application for supervisory writs to the

Louisiana Supreme Court, which was granted to consider the issue of collectability

in legal malpractice actions. Although res nova in Louisiana, the Supreme Court

pointed out that the majority of courts in other states that have considered the issue

of collectability in legal malpractice cases have ruled that collectability is an

essential element of the plaintiff’s legal malpractice case and have placed the burden

on the plaintiff to demonstrate the amount that she could have collected from the

underlying tortfeasor but for the intervening negligence of the attorney. 20-339 at

pp. 4-6, 8; 315 So.3d at 178-79, 180. The Court also pointed out that a growing

number of courts from other states have allowed collectability to be pled by the

attorney/defendant as an affirmative defense that mitigates the consequences of the

attorney’s negligent acts. In these cases, the burden is on the attorney/defendant to

plead and prove that any judgment that may have been rendered in the underlying

action would not, in any case, have been collectable. 20-339 at pp. 6-8, 315 So.3d at

180.

In the absence of relevant statutory authority, the Court was guided by

Louisiana jurisprudence and public policy, leading it to conclude that “the

collectability rule is not applicable in legal malpractice cases” in Louisiana. 20-339

at p. 8, 315 So.3d at 180, citing Costello, 03-1146 at p. 10; 864 So.2d at 138. The

elements of a legal malpractice claim under Louisiana law are (1) the existence of

an attorney-client relationship; (2) negligent representation by the attorney; and (3)

loss caused by that negligence. Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d

1109. Louisiana has long ago abandoned the case within a case rule (which would

require the plaintiff to prove not only that the attorney was negligent but that the

client’s claim or action would have been successful but for the attorney’s negligence)

in legal malpractice cases. In Jenkins the Louisiana Supreme Court held that:

7

[O]nce the client has proved that his former attorney accepted
employment and failed to assert the claim timely, then the client has
established a prima facie case that the attorney’s negligence caused him
loss, since it is unlikely the attorney would have agreed to handle a
claim completely devoid of merit…[A] rule which requires the client
to prove the amount of damages by trying the ‘case within a case’
simply imposes too great a standard of certainty of proof. Rather, the
more logical approach is to impose on the negligent attorney…the
burden of [then] going forward with evidence to overcome the client’s
prima facie case by proving that the client could not have succeeded on
the original claim, and the causation and damage questions are then up
to the jury to decide.4
422 So.2d at 1110.

The Ewing court confirmed that the ‘case within a case’ doctrine does not

apply to legal malpractice actions in Louisiana and opined that once the plaintiff in

a legal malpractice action proves that her former attorney’s negligence caused her to

lose the opportunity to assert a claim, “she has established the inference of causation

of damages resulting from the lost opportunity for recovery.” 20-339 at p. 9, 315

So.3d at 181. The plaintiff does not also have to prove that “she would have

successfully been able to execute on the judgment in the underlying case or that the

judgment was collectable. Collectability is not an element of the plaintiff’s legal

malpractice claim in Louisiana.” Id.

The Ewing defendants did not assert that the plaintiff was required to prove

collectability, but contended that they should be able to assert collectability as an

affirmative defense. The Court disagreed, holding that:

A legal malpractice claim in Louisiana is a negligence claim, and thus
derives from La. C.C. arts. 2315 and 2316…These articles do not limit
the damages available in legal malpractice actions based on the
collectability of the judgment against a particular tortfeasor.

***
A money judgment rendered against a tortfeasor has intrinsic value,
regardless of collectability of that judgment. We hold collectability is
not relevant to the correct measure of a legal malpractice plaintiff’s

4
Jenkins was a plurality decision in which Justice Dennis dissented, approving the abandonment of the
case-within-the-case requirement but opining that “our civil code and justice require that a person whose
legal rights have been permanently prejudiced by the wrongful acts of his attorney be afforded a more
complete remedy…[and that] the party guilty of malpractice [should be required to] repair the wrong he
has done to his client by paying him an amount equal to the value of the right destroyed.” 422 So.2d at
1114-15.
8

damages…We will not allow a malpractice defendant to assert a
defense based on the wealth or poverty of the underlying tortfeasor
when a defendant in any other type of tort action could not assert a
similarly based defense.5

Ewing did not change the law, it merely interpreted existing law – i.e., Civil

Code Articles 2315 and 2316 – and confirmed what the law had always been. The

ability to enforce or collect a judgment was not a consideration in an underlying tort

action and therefore, was not a consideration in a legal malpractice action under

then-existing law.

B. La. R.S. 9:5605.2

In 2022, the legislature passed Acts 2022, No. 285 § 1 (“Act 285”), enacting La.

R.S. 9:5605.2, which appears in “Code Title XXIV – Prescription, Part 1., Periods

of Prescription, Subpart A. One Year,”6 and provides that:

In any action for damages by a client against an attorney, the client’s
recovery against the attorney shall be limited to the amount of damages
which the attorney shows by a preponderance of the evidence would
have been the maximum amount of damages that the client could have
collected in the client’s underlying action in which he was represented
by the attorney.

Section 2 of Acts 2022, No. 285 (“Act 285”) states that section 1 of Act 285 is

“intended to legislatively overrule the holding that collectability of damages against

the tortfeasor in an underlying lawsuit is not an affirmative defense to a legal

malpractice action as held in the Louisiana Supreme Court decision, Ewing v.

Westport Ins. Co., 315 So.3d 175 (La. 2020).” Act 285 was approved on June 6,

2022 and became effective July 1, 2022. This enactment represents a change in the

law because, at the time of its enactment, collectability was not a consideration in a

legal malpractice action. The question then becomes whether this change applies to

causes of action acquired and existing prior to the effective date of the act.

C. Retroactive Application of Laws

5
20-339 at 10-11, 315 So.3d at 182-83.
6
La. R.S. 9:5605 sets out the prescriptive periods and provisions applicable to actions for legal malpractice.
R.S. 9:5605.1 relates to the prescriptive period applicable to a claim of theft of client funds.
9

Article 6 of the Louisiana Civil Code provides that, in the absence of contrary

legislative expression, substantive laws apply prospectively only, but procedural and

interpretive laws apply both prospectively and retroactively. Similarly, La. R.S. 1:2

provides that “[n]o section of the Revised Statutes is retroactive unless it is expressly

so stated.” Even though R.S. 1:2 makes no distinction between whether a law is

substantive, procedural or interpretive, case law has interpreted Article 6 and R.S.

1:2 as being coextensive.7

The Louisiana Supreme Court has held that the interpretation of Article 6 and

R.S. 1:2 involves a two-part analysis:

First, [the court] must ascertain whether in the enactment the legislature
expressed its intent regarding retrospective or prospective application.
If the legislature did so, [the court’s] inquiry is at an end. If the
legislature did not, [the court] must classify the enactment as
substantive, procedural or interpretative.8

The foregoing is, however, subject to the caveat that, even if the legislature expresses

its intention that a law is to be applied retrospectively, if the law is substantive, it

cannot be given retroactive application if the effect would be to impair contractual

or vested rights. Unwired Telecom, 03-732 at 15, 903 So.2d at 404, citing Smith v.

Board of Trustees of Louisiana State Employee’s Retirement System, 02-2161 (La.

6/27/03), 851 So.2d 1100.

Act 285 is silent as to the legislature’s intent regarding whether the La. R.S.

9:5605.2 is to be applied retroactively, necessitating an analysis of whether the

statute is substantive, procedural or interpretative.9 A substantive law is one that

7
Bourgeois v. P.P. Green Indus. Inc., 00-1528 (La. 4/3/01), 783 So.2d 1251, 1256; Unwired Telecom Corp.
v. Parish of Calcasieu, 03-732 (La. 1/19/05), 903 So.2d 392.
8
Cole v. Celotex Corp., 599 So.2d 1058, 1063 (La. 1992).
9
In fact, however, there is no reference in Article 6 to remedial or curative legislation, as is noted
in Editor’s Comment (d) to Article 6, which states:

Article 6 makes no reference to so-called remedial legislation because of the
multiplicity of meanings assigned to it. A remedial law may be procedural,
interpretative, or substantive. A procedural law is remedial in the sense of dealing
with the remedy rather than with the right itself. An interpretative law is remedial
in the sense of remedying an error or ambiguity in the prior law. In both situations
the new law may, in principle, apply retroactively even in the absence of express
10

creates, confers, defines, destroys, or otherwise regulates rights, liabilities, causes of

action or legal duties. State v. Foret, 2015-1298 (La. 1/27/16), 188 So.3d 154, 160.

Substantive laws either establish new rules, rights and duties or change existing ones.

Id. Procedural, curative and interpretative laws relate to the form of the proceeding

or operation of the laws. Procedural laws relate to methods for enforcing, processing,

administering, or determining rights liabilities or status. Curative laws remove past

disabilities in order prescribe a method for enforcing a substantive right and relate

to the form of the proceeding or operation of laws. Interpretative laws establish the

meaning the statute had from the time of its enactment. The original statute, not the

interpretative act establishes the rights and duties. Legislation that changes existing

laws is not interpretative. Genusa v. Dominique, 97-0047 (La. App. 1 Cir 2/20/98),

708 So.2d 784, 790-91.

In Coates v. Owens-Corning Fiberglass Corp., 444 So.2d 788 (1984), the

Louisiana Supreme Court was called upon to determine whether Act 202 of 1982,

which amended La. C.C. art. 2315 to allow recovery for loss of consortium could be

applied retroactively or was to be applied prospectively only. The Court found that

“[i]t is well-settled that newly enacted laws can only be applied prospectively unless

they can be characterized as interpretive, remedial or procedural.” 444 So.2d at 789.

(Citations omitted). The Court noted, however, that:

The distinction between substantive and procedural laws is not always
clear. Generally speaking, an interpretive law does not establish new
rights but rather clarifies the method by which already existing rights
may be enforced. Substantive laws generally create new rights where
none previously existed.

language to that effect. However, a substantive law may also be, and often is, called
remedial when it remedies an existing social problem resulting from a gap, silence,
or deficiency of the prior law. In such a situation, the new law should not be applied
retroactively, absent a contrary and constitutionally permissible legislative
directive.

Citing Rodriguez v. Brown & Root, Inc., 410 So.2d 325 (La. App. 4th Cir.1982); Manuel v.
Carolina Casualty Ins. Co., 136 So.2d 275 (La. App.3d Cir.1961); Tessier v. H.S. Anderson
Trucking Co., 713 F.2d 135 ( 5th Cir. (U.S.) 1983).

11

Id. at 790. Citation omitted).

Because the amendment to Article 2315 established rights that did not

previously exist, the amendment applied prospectively only. Id.

In Bourgeois v. A.P. Green Industries, Inc., et al., 2000-1528 (La. 4/3/2001),

783 So.2d 1251 (hereinafter, “Bourgeois II”), the Louisiana Supreme Court was

called upon to determine whether another amendment to Article 2315 could be

applied retroactively. In that case, as here, the legislature passed an act to overrule

the Louisiana Supreme Court’s decision in Bourgeois v. A.P. Green Indus., Inc., 97-

3188 (La. 7/8/98), 716 So.2d 355 (referred to hereinafter as “Bourgeois I”).

In Bourgeois I, the Court had held that the reasonable cost of medical

monitoring is a compensable item of damage under Article 2315, provided certain

conditions were met. In response to Bourgeois I, the legislature enacted Act 989 of

1999 (“Act 989”), which amended Article 2315 to eliminate medical monitoring as

a compensable item of damage in the absence of a manifest physical or mental injury

or disease. Act 989 contained an expression by the legislature that the provisions of

the act were “interpretive of Civil Code Article 2315 and [were] intended to explain

its original intent, notwithstanding the contrary interpretation given in [Bourgeois I],

and cases consistent therewith.” Act 989 further expressed the intent of the

legislature that “[t]he provisions of this Act shall be applicable to all claims existing

or actions pending on its effective date and all claims arising or actions filed on and

after its effective date.” Act 989 became effective July 9, 1999.

After the effective date of Act 989, the defendants filed exceptions of no cause

of action on the grounds that the plaintiffs had not met the requirements imposed by

Act 989. The plaintiffs then sought to have the court declare Act 989 unconstitutional

in relation to their causes of action, as it would deprive them of vested rights. The

12

defendants contended that Act 989 was interpretative and to be given retroactive

application. Bourgeois II, 783 So.2d at 1256.

The Bourgeois II court acknowledged that the legislature is free to give its

enactments retroactive effect, but only if consistent with the due process and contract

clauses of the U.S. and Louisiana Constitutions. Initially, the courts must defer to

the stated intent of the legislature in determining whether to apply a statute

retroactively. If the legislative intent regarding retroactive application is clear and

unmistakable, the court’s inquiry ends there unless constitutional protections are

implicated. Id. at 1258-59. (Citations omitted). “When a party acquires a right to

assert a cause of action prior to a change in the law, that right is a vested property

right which is protected by the guarantee of due process…Thus, a cause of action,

once accrued, cannot be divested by subsequent legislation.” Id. at 1259. (Citations

omitted). Moreover, the legislature may not “interpret” a law for the stated purpose

of overruling appellate court decision interpreting the law. Id. The Court explained:

In Bourgeois I, this court recognized the existence of a cause of action
for medical monitoring under Louisiana law and set forth the criteria
plaintiffs must satisfy to recover medical monitoring damages. This
recognition did not create a new tort…Rather it established what La.
C.C. art. 2315 encompassed prior to this court’s decision in Bourgeois
I…The judicial power of the state is constitutionally vested in the
courts…Statutory interpretation and the construction to be given to
legislative acts is a matter of law and rests with the judicial branch of
the government…While it is undeniably true that the decisions of our
state courts do not create or eliminate substantive rights as this is the
proper function of the legislature…when this court interprets legislative
acts, it is giving meaning in particular cases to what the legislature has
enacted as law; it is saying what the law is. Thus, prior to the effective
date of Act 989, La. C.C. art. 2315 included the reasonable cost of
medical monitoring as a compensable item of damage for
asymptomatic plaintiffs.
Because a cause of action…existed prior to the effective date of Act
989, plaintiffs have a vested right to assert their causes of action…if
those rights accrued prior to July 9, 1999. A cause of action…means
the operative facts which give rise to the plaintiff’s right to judicially
assert the action against the defendant.
Id. at 1259-60. (Internal citations and quotation marks omitted; footnote

omitted). See also, Unwired Telecom Corp. v. Parish of Calcasieu, 2003-0732

13

(La. 1/19/05), 903 So.2d 392 (legislature could not “overrule” Mercury

Cellular Telephone Co. v. Calcasieu Parish, 00-0318 (La. App. 3 Cir.

12/11/00), 773 So.2d 914, writ denied, 01-0126 (La. 3/16/01), 787 So.2d 314

and create a new substantive law in the guise of interpretative legislation to

give retroactive effect because it does not like the result of its legislation as it

stands); and Calcasieu Parish School Board Sales & Use Department v.

Nelson Industrial Steam Company, 2021-00552 (La. 10/10/21) (“the

Legislature’s power to change the law does not include the power to

legislatively overrule a Louisiana court….”).

In Bourgeois II, Justice Lemmon stated, in his assignment of additional

reasons to the opinion of the court pointed out that:

True interpretative legislation occurs when the Legislature, upon
realizing that a previously enacted law contains an ambiguity or an
error, amends the prior law to correct the ambiguity or error before the
law has been judicially interpreted. However, after the judicial branch
performs its constitutional functions of interpreting a law, and the
Legislature disagrees with that interpretation, a new legislative
enactment is a substantive change in the law and is not an interpretative
law, because the original law as interpreted by the judicial branch, no
longer applies.

2000-1528, 783 So.2d at 1261. (Footnote omitted; emphasis in original).

We now consider Act 285 in light of the foregoing principles.

D. La. R.S. 9:5605.2 may not be Applied Retroactively with
Respect to Causes of Action Arising Prior to its Effective Date.

As we have previously discussed, the legislature did not express any intent

that Act 285 be applied retroactively. The legislature also did not attempt to

categorize the provisions of Act 285 as being interpretative or remedial. Silva and

Continental contend that because the legislature stated that it was overruling the

Supreme Court’s decision in Ewing, this necessarily means that the law is

interpretative. We do not agree and will proceed to make our own Article 6

determination whether the statute is substantive or interpretative.

14

The case law discussed above, particularly, Bourgeois II, Unwired, and

Nelson establish that the interpretation of laws is the province of the judicial branch.

Where the legislature disagrees with a decision of an appellate court, interpreting

existing law, it may not enact a new law to overrule that decision, and by dubbing it

as “interpretative,” have the new law apply retroactively. In such a case, no matter

the intent of the legislature, the new law effects a substantive change in the law in

that the original judicial interpretation of the law no longer applies. La. R.S. 9:5605.2

is a law that effects a substantive change in the law, which may only be applied

prospectively.

In case law rendered long before Ewing, the Supreme Court held that the case-

within-the-case requirement is violative of our civilian principles, as codified in La.

C.C. arts. 2315 and 2316. The case-within-the-case requirement and the

collectability requirement are similar. Application of the case-within-the-case

requirement would compel a plaintiff to demonstrate that she would have prevailed

on the merits at trial but for the attorney’s negligence, and to prove the amount of

damages that would have been awarded. The collectability rule takes the case-

within-the-case requirement a step further and would require the plaintiff to also

prove the amount she would be able to collect pursuant to the judgment. Although

R.S. 9:5605.2 places the burden on the attorney to raise collectability as an

affirmative defense, the result to the plaintiff is the same – the plaintiff’s recovery is

limited to that portion of any judgment that would have been rendered on her

underlying claim that the trier of fact finds would actually be collectable from the

underlying tortfeasor. The new statute establishes an affirmative defense that was

not previously available to defendants in legal malpractice actions under existing

law, as established by Ewing, and potentially limits the plaintiff’s recovery to less

than the actual value of her claim.

15

The operative facts giving rise to Ms. Webber’s right to judicially assert the

action against Silva, Penton and Continental – Silva and/or Penton’s failure to file

Ms. Webber’s lawsuit against Sly – occurred on November 11, 2020, prior to the

effective date of Act 285 (July 1, 2022). At the time Ms. Webber’s cause of action

against Silva, Penton and Continental arose, the law applicable to her cause of action

did not recognize collectability as an element of her claim or as an affirmative

defense to be asserted by the legal malpractice defendants. Act 285 changed the law

in that regard. Applying the law discussed above to La. R.S. 9:5605.2, we find that

La. R.S. 9:5605.2 effects a substantive change in the law and the collectability rule,

established therein may not be applied to Ms. Webber’s cause of action in this case.

For the reasons stated above, we grant the writ application of Darlene Webber,

reverse the district court’s judgment denying her Motion for Partial Summary

Judgment, and hereby grant the Motion for Partial Summary Judgment, finding that

La. R.S. 9:5605.2 creates a substantive change in the law and cannot be applied

retroactively.

Gretna, Louisiana, this 11th day of February, 2025.

FHW
SJW
JJM

16

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 02/11/2025 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-C-378
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Danyelle M. Taylor (DISTRICT JUDGE)
Catherine N. Thigpen (Respondent) Charles P. Ciaccio (Relator)
Gus A. Fritchie, III (Respondent) Edward W. Trapolin (Respondent)
Frank J. D'Amico, Jr. (Relator) Ashley E. Gilbert (Respondent)

MAILED
Christopher H. Irwin (Respondent)
Attorney at Law
400 Poydras Street
Suite 2700
New Orleans, LA 70130