Marcus Miller v. Harold J. Thibeaux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
13-541 c/w 13-1029

MARCUS MILLER

VERSUS

HAROLD THIBEAUX, LAFAYETTE PARISH SCHOOL BOARD AND
AMERICAN ALTERNATIVE INSURANCE CORPORATION

************

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20112778
HONORABLE KRISTIAN EARLES, DISTRICT JUDGE

************

J. DAVID PAINTER
JUDGE

************

Court composed of Billy Howard Ezell, J. David Painter, and Shannon J.
Gremillion, Judges.
REVERSED AND RENDERED.

Dawn L. Morris
825 Lafayette St.
Lafayette, LA 70501
COUNSEL FOR DEFENDANTS/APPELLANTS:
Lafayette Parish School Board and Harold Thibeaux

Robert I. Siegel
Christopher R. Teske
Tara E. Clement
Suite 4800 – One Shell Square
701 Poydras St.
New Orleans, LA 70139
COUNSEL FOR DEFENDANT-APPELLANT/CROSS APPELLEE:
American Alternative Insurance Corporation

Derriel C. McCorvey
S. Marie Johnson
P.O. Box 2473
Lafayette, LA 70502
COUNSEL FOR PLAINTIFF-APPELLEE:
Marcus Miller

PAINTER, Judge.

Defendants, Harold Thibeaux, the Lafayette Parish School Board

(LPSB), and American Alternative Insurance Corporation (AAIC), appeal

the judgment of the trial court denying their exception of no right of action

and granting Plaintiff, Marcus Miller’s, motion for partial summary

judgment. For the following reasons, we reverse and render judgment

dismissing Plaintiff’s suit.

FACTS

La’Derion Miller, a six year old, was attempting to board a school bus

driven by Harold Thibeaux and owned by the LPSB, when the driver, who

was distracted by two other children, closed the door on his arm. The bus

drove away dragging La’Derion about eighty-one feet before he was

released from the door and fell under the wheels of the bus. He died about

40 minutes later. Separate suits were filed by the child’s mother, Heather

Jagneaux, who witnessed the accident from her front yard, and Marcus

Miller, who alleged that he was La’Derion’s father.1

Defendants filed a motion for summary judgment regarding damage

caps. Miller twice amended his petition. Defendants filed exceptions of no

cause and no right of action regarding Miller’s paternity. Miller filed a

motion for summary judgment regarding Thibeaux’s insured status as well

as an “Amended Motion and Order for Judgment of Paternity.” A hearing

was held on the various motions and the exception. The trial court granted

the motion for summary judgment filed by Miller, denied that filed by

1
Jagneaux and Miller were never married and did not live together at the time of the
child’s death.

1

AAIC, denied the exceptions of no right of action filed by Defendants, and

granted the motion for judgment of paternity. Defendants appeal.

DISCUSSION

Exception of No Right of Action – Paternity

The supreme court explained the appellate review of a
ruling on an exception of no right of action in Eagle Pipe &
Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-2272, 10-
2275, 10-2279, 20-2289, pp. 6-7 (La.10/25/11), 79 So.3d 246,
255-56:

“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.” Hood v.
Cotter, 2008-0215, p. 17 (La.12/2/08), 5 So.3d
819, 829. An appellate court reviewing a lower
court’s ruling on an exception of no right of action
should focus on whether the particular plaintiff has
a right to bring the suit and is a member of the
class of persons that has a legal interest in the
subject matter of the litigation, assuming the
petition states a valid cause of action for some
person. Id.

Whether a person has a right to bring an action raises a
question of law. Id. “A question of law requires a de novo
review.” Id. at 256.

Charles v. Towing and Recovery Professionals of Louisiana, 12-824. p. 3

(La.App. 3 Cir. 4/24/13), ___ So.3d ___.

In their exception, Defendants argue that Miller did not timely file an

avowal action and, as a result, had no right to pursue an action for wrongful

death and/or survival damages. They argue that because the child’s mother

had full custody and there were no child support or visitation orders in place

at the time of the child’s death, there is no presumption of paternity.

The Louisiana Supreme court, in Udomeh v. Joseph, 11-2839, pp. 4-5

(La. 10/26/12), 103 So.3d 343, 346, explained the requirements with regard

to paternal filiation in personal injury suits as follows:

2

To recover under a claim for wrongful death and survival,
a plaintiff must fall within the class of persons designated as a
beneficiary under La. Civ.Code arts. 2315.1 and 2315.2. Turner
v. Busby, 03-3444, p. 4 (La.9/9/04); 883 So.2d 412, 416. When
the decedent leaves no surviving spouse or child, the decedent’s
surviving father and mother are the proper beneficiaries to bring
a wrongful death and survival action. La.Civ.Code arts. 2315.1;
2315.2.

Filiation is the legal relationship between a child and his
parent. La.Civ.Code art. 178. Filiation is established by proof of
maternity, paternity, or adoption.

Louisiana Civil Code Article 198 (emphasis added) provides that:

A man may institute an action to establish his paternity of
a child at any time except as provided in this Article. The action
is strictly personal.

If the child is presumed to be the child of another man,
the action shall be instituted within one year from the day of the
birth of the child. Nevertheless, if the mother in bad faith
deceived the father of the child regarding his paternity, the
action shall be instituted within one year from the day the father
knew or should have known of his paternity, or within ten years
from the day of the birth of the child, whichever first occurs.

In all cases, the action shall be instituted no later than
one year from the day of the death of the child.

The time periods in this Article are peremptive.

The court in Udomeh further noted:

[U]nder this Court’s jurisprudence, a party bringing a wrongful
death and survival claim must establish filiation in accordance
with the requirements and temporal limitations of the Civil
Code.

Further, the revision comments to La Civ.Code art. 198
indicate a putative father must timely file an avowal action
pursuant to Article 198 in order to bring a wrongful death and
survival action. One purpose of the temporal restrictions of
Article 198 is “that a father who failed during a child’s life to
assume his parental responsibilities should not be permitted
unlimited time to institute an action to benefit from the child’s
death.” La. Civ.Code art. 198, Official Revision Comments (d).

3

Accordingly, we conclude the filiation provisions of La.
Civ.Code art. 198 apply to actions under La. Civ.Code arts.
2315.1 and 2315.2. A putative father must file a timely avowal
action in order to maintain a wrongful death and survival action
for the death of his illegitimate child.

Id. at 347-348.

In Udomeh, as here, the plaintiff did not amend his petition to state an

avowal action within the one-year period required by La.Civ.Code art. 198.

However, in Udomeh, the court found that the plaintiff’s petition in the

wrongful death action pled sufficient facts to state an avowal action and to

give notice to defendants of the issue of Udomeh’s paternity. The court

noted that the plaintiff alleged not only biological filiation but

acknowledgement and support of the child.

Therefore, under Udomeh, if Plaintiff’s petition alleges sufficient

facts to petition to state an avowal action and provide notice to defendants of

the issue of his paternity, and the action was filed within one year of the

child’s death, a timely action for filiation has been commenced.

The original and first amended petitions herein were filed within a

year of the child’s death. However, after reviewing the allegations of both,

we conclude that neither contains sufficient allegations of fact to state a

cause of action for filiation, as each contains only the bare allegation that

Miller was the biological father of La’Derion. The second amended petition

does not mention paternity. Miller’s motion for judgment of paternity was

not filed until December 2012, more than a year after the child’s death and

was thus untimely.

Accordingly, we conclude that Defendants have carried their burden

of showing that Plaintiff has no right to pursue an action for the wrongful

death of La’Derion Miller.

4

Having so found, we need not consider the remaining assignments of

error.

CONCLUSION

For these reasons, the judgment of the trial court denying Defendants’

exception of no right of action is reversed. Judgment is rendered dismissing

Plaintiff’s action for wrongful death and survival damages with prejudice.

Costs of this appeal are assessed to Plaintiff, Marcus Miller.

REVERSED AND RENDERED.

5