Arnold Lyle Lewis, Ind. Admin of Succession of Rosalie Hardy Lewis and John Charles Lewis v. Harbor Freight Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-455

ARNOLD LYLE LEWIS, IND. ADMIN. OF SUCCESSION OF ROSALIE
HARDY LEWIS AND JOHN CHARLES LEWIS

VERSUS

HARBOR FREIGHT CORPORATION, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2021-3803
HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
CHIEF

JUDGE

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Court composed of Elizabeth A. Pickett, Charles G. Fitzgerald, and Wilbur L.
Stiles, Judges.

AFFIRMED.

Kenneth Michael Wright
Attorney at Law
203 West Clarence Street
Lake Charles, LA 70601
(337) 439-6930
COUNSEL FOR PLAINTIFF-APPELLANT:
Arnold Lyle Lewis

P. M. Donovan
Donovan & Lawler
4640 Rye Street
Metairie, LA 70006
(504) 454-6808
COUNSEL FOR DEFENDANT-APPELLEE:
Allstate Insurance Company

Robert E. Landry
Scofield, Gerard, Pohorelsky, Gallaugher & Landry
901 Lakeshore Drive, Suite 900
Lake Charles, LA 70601
(337) 433-9436
COUNSEL FOR DEFENDANT -APPELLEE:
Harbor Freight Tools USA, Inc.

Kevin J. Koenig
Raggio, Cappel, Chozen & Berniard
522 Alamo (70601)
Post Office Box 3146
Lake Charles, LA 70602-3146
(337) 436-9481
COUNSEL FOR DEFENDANT- APPELLEE:
Succession of Christopher Ray Evans

PICKETT, Chief Judge.

The plaintiff in his role as the independent administrator of two successions

appeals the trial court’s judgment granting the defendants’ peremptory exceptions

of no right of action and dismissing his claims against the defendants with

prejudice. For the reasons discussed below, we affirm the judgment.

FACTS

In August 2020, Hurricane Laura caused major power outages in Calcasieu

Parish. Rosalie Handy Lewis and John Charles Lewis went to stay with their

daughter Kimberly Lewis Evans and her husband, Christopher Ray Evans. Due to

the power outages, the Lewises and Evanses used a generator to provide power to

the Evanses’ home. On August 28, 2020, Rosalie, Kimberly, and Christopher died

from carbon monoxide poisoning. Then, on September 3, 2020, John also died

from carbon monoxide poisoning.

On August 31, 2021, Arnold Lyle Lewis, Rosalie and John’s son and

Kimberly’s brother, in his capacity as the independent administrator of Rosalie and

John’s succession, filed suit to recover damages associated with the deaths of

Rosalie, John, and Kimberly. Arnold named the following defendants in his

petition: Harbor Freight Tools, USA, Inc., d/b/a Harbor Freight Tools (Harbor

Freight), as the alleged seller and/or manufacturer of the generator used by the

decedents; Allstate Indemnity Company (Allstate), Christopher and Kimberly’s

homeowners’ insurer; Kimberly’s succession; and Christopher’s successions.

Arnold filed an amended petition on November 15, 2021, to clarify that he asserted

a claim against the defendants as the independent administrator of Rosalie and

John’s succession and Kimberly’s succession and to delete Kimberly’s succession

as a named defendant.

After Arnold filed his amended petition, Harbor Freight filed peremptory

exceptions of no cause of action and prescription and a dilatory prescription of

vagueness. Thereafter, Harbor Freight filed a peremptory exception of no right of

action. Allstate and the independent administrator of Christopher’s succession also

filed peremptory exceptions of no right of action and dilatory exceptions of

vagueness. In their exceptions of no right of action, the defendants asserted Arnold,

as the independent administrator of the Lewis’s and Kimberly’s successions, had

no right of action for survival damages or wrongful death damages for the deaths

of Rosalie, John, and Kimberly, as provided by La.Civ.Code art. 2315.1 and

La.Civ.Code art. 2315.2.

On September 23, 2022, Arnold filed a second amended petition to assert

claims against the defendants as a plaintiff in his personal capacity as the son of

Rosalie and John and the brother of Kimberly. The trial court conducted a hearing

on the defendants’ exceptions and granted their exceptions of no right of action and

dismissed Arnold’s claims as the independent administrator of Rosalie and John’s

and Kimberly’s successions with prejudice. The trial court determined its ruling on

the exceptions of no right of action rendered the remaining exceptions moot and

dismissed them as moot.

Arnold, as the independent administrator of Rosalie and John’s succession

and Kimberly’s succession, appealed the trial court’s judgment. He now asserts the

trial court committed legal error in granting the defendants’ exceptions of no right

of action.

STANDARD OF REVIEW

Appellate review of the grant of an exception of no right of action is de novo

because the exception presents an issue of law, unless evidence is introduced to

support or oppose the exception. McKay v. Fontenot, 22-690 (La.App. 3 Cir.
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6/28/23), 368 So.3d 282, writ denied, 23-1040 (La. 11/8/23), 373 So.3d 62. No

party introduced evidence in connection with the defendants’ exceptions of no

right of action. Therefore, we will conduct a de novo review of the trial court’s

grant of the defendants’ exceptions of no right of action.

DISCUSSION

“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.P. art. 681.

See also Reese v. State Dep’t of Pub. Safety & Corrs., 03-1615 (La. 2/20/04), 866

So.2d 244. When considering a peremptory exception of no right of action, courts

determine whether the plaintiff belongs to the class of persons to whom the law

grants the cause of action asserted in the suit. La.Code Civ.P. art. 927. In Reese,

866 So.2d at 246, the supreme court explained further:

The focus in an exception of no right of action is on whether
this particular plaintiff has a right to bring the suit, but it assumes that
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.

In their exceptions of no right of action, the defendants argue La.Civ.Code

art. 2315.1 and 2315.2 govern Arnold’s claims to recover damages for the death of

Rosalie, John, and Kimberly in his capacity as the independent administrator of

their successions. Louisiana Civil Code Articles 2315.1 (emphasis added)

provides, in pertinent part

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.
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(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.

Louisiana Civil Code Article 2315.2 states, in pertinent part:

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.

The defendants assert that as the child of Rosalie and John and the brother of

Kimberly, Arnold, as the independent administrator, does not have a right of action

to recover survival damages or wrongful death damages under La.Code Civ. art.

2315.1 and La.Code Civ. art. 2315.2. Arnold counters the defendants’ claims,

asserting La.Code Civ.P. art. 685 and La.Code Civ.P. 3191 and La.Civ.Code art.

3191 require this court to consider the claims potential creditors of a decedent may

have when determining the merits of an exception of no right of action because the

court’s ruling may hamper creditors’ ability to satisfy the debts and expenses of the

decedent.

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Louisiana Code of Civil Procedure Article 685 (emphasis added) provides,

in pertinent part: “Except as otherwise provided by law, the succession

representative appointed by a court of this state is the proper plaintiff to sue to

enforce a right of the deceased or of his succession, while the latter is under

administration.” Louisiana Civil Code Article 3191 states, in pertinent part:

The debts which are privileged on all the movables in general,
are those hereafter enumerated, and are paid in the following order:

1. Funeral charges.

2. Law charges.

3. Charges, of whatever nature, occasioned by the last sickness,
concurrently among those to whom they are due.

Pursuant to La.Code Civ.P. art. 3191(A), a succession representative has a

fiduciary obligation to the succession to collect, preserve, and manage property of

the succession. He must be prudent and can be personally liable for damages if he

fails to properly perform his duties. Id.

The supreme court recently addressed Arnold’s argument in Rismiller v.

Gemini Insurance Co., 20-313, (La. 6/30/21), 330 So.3d 145, cert. denied, __ U.S.

__, 142 S.Ct. 1229 (2022), where on rehearing, the court vacated its original

opinion and adopted a summarized version of Justice Weimer’s dissent to the

court’s original opinion. The court addressed the claims of two adult children who

had been given up for adoption and sought to recover survival and wrongful death

damages after the death of their birth father and his two minor children who had

not been given up for adoption. The court determined neither La.Civ.Code art.

2315.1 nor La.Civ.Code art. 2315.2 provide a cause of action for survivor damages

or wrongful death damages unless the conditions specified in each statute are

satisfied. The supreme court held that pursuant to La.Civ.Code art. 199, the

plaintiffs did not have a right of action for damages under La.Civ.Code art. 2315.1
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or La.Civ.Code art. 2315.2 because the filiation between them and their legal

father terminated upon their adoption.

In Rismiller, 330 So.3d. at 147, (bold emphasis deleted) (italicized emphasis

added), the court outlined the procedure for analyzing the plaintiffs’ claims:

“The fundamental question in all cases of [codal] construction
is legislative intent and the reasons that prompted the legislature to
enact the law.” [Rismiller v. Gemini Ins. Co., 20-0313, 3 (La.
12/11/20) 347 So.3d 655, 665 (Weimer, J., dissenting)] (quoting
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”–La. C.C. arts. 2315.1, 2315.2, and 199. Id. (citing
SWAT 24 Shreveport Bossier, Inc., 00-1695 at 12, 808 So.2d at 302).

The law governing survival and wrongful death actions
provides for “a distinct right of action, in favor of certain classes of
persons.” See Vaughan v. Dalton-Lard Lumber Co., 119 La. 61, 64,
43 So. 926, 927 (1907), overruled on other grounds by King v.
Cancienne, 316 So.2d 366 (La. 1975); Levy v. State Through Charity
Hospital of Louisiana, 253 La. 73, 77, 216 So.2d 818, 819 (1968); see
also Watkins v. Exxon Mobil Corp., 13-1545 (La. 5/7/14), 145 So.3d
237, 240. “[T]he 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” contained in the
governing code article(s)–formerly La. C.C. art. 2315 (1870) and now
La. C.C. arts. 2315.1 and 2315.2 (1986). Rismiller, 20-0313 at 9, [347
So.3d at 668] (Weimer, J., dissenting). “Those not included [in the
lists of eligible claimants] are excluded, and the article[(s)] cannot be
construed to confer the right upon persons not expressly mentioned in
it.” Vaughan, 119 La. at 64, 43 So. at 927.

Pursuant to Rismiller, 330 So.3d 145, Arnold, as the administrator of his

parents’ and sister’s successions, is not an eligible claimant/beneficiary under

La.Civ.Code art. 2315.1 because as the child of Rosalie and John and the brother

of Kimberly, he is an eligible claimant under La.Civ.Code art. 2315.1(A)(1) and

(3), respectively. Louisiana Civil Code Article 2315.1(B) provides a right of action

for a succession representative to recover survival damages only in the event no

class of eligible claimants identified in subsection (A) exists. Accordingly, Arnold

has no right of action to pursue a claim for survival damages as the independent

administrator of his parents’ and sister’s succession. The same is true with regard
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to his claim for wrongful death damages because La.Civ.Code art. 2315.2 does not

provide succession representatives a claim for such damages.

Arnold further argues this court should consider the legislature’s failure to

consider the intent of La.Civ.Code art. 3191 and La.Code Civ.P. art. 3191 when

interpreting La.Civ.Code art. 2315.1 and La.Civ.Code art. 2315.2, asserting these

provisions conflict with regard to the duties of succession representatives to satisfy

succession debts. He points to a footnote in Rismiller, 330 So.3d 145, to support

this claim. Footnote 1 states: “Because C.C. arts. 199, 2315.1, and 2315.2 are

interrelated laws each must be given effect.” Id. at 147.

Louisiana Civil Code Article 199 states:

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 supreme court determined the 1932 amendment of La.Civ.Code art.

2315 that included adopted children, required it to consider “the effects of adoption

addressed in La. C.C. art. 199” because the amendment increased the claimants

eligible to recover damages under La.Civ.Code art. 2315.1 and La.Civ.Code art.

2315.2. Rismiller, 330 So.3d. at 148.

No such interrelationship exists among La.Civ.Code art. 685, La.Civ.Code

art. 3191 or La.Code Civ.P. art. 3191 and La.Civ.Code art. 2315.1 or La.Civ.Code

art. 2315.2. The Editor’s note to La.Civ.Code art. 2315.1 explains, in pertinent

part:

This provision is contrary to Civil Code articles 872, 880, and 1469
which classify the decedent’s right as a part of his estate that devolves
in favor of his intestate or testate successors. Because the provisions
of article 2315.1 are more specific than those of general succession
law, the provisions of this article dictate the recipients of the
decedent’s survival action. See Juneau v. State, [15-1382 (La.App. 1

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Cir. 7/7/16), 197 So.3d 398, writ denied, 16-1490 (La. 11/15/16), 209
So.3d 781].
.
The rules of statutory interpretation also address Arnold’s argument:

In construing statutory language, it is presumed that the
legislature enacts each statute with deliberation and with full
knowledge of all existing laws on the same subject; therefore,
legislative language will be interpreted on the assumption that the
legislature was aware of existing statutes, the rules of statutory
construction, and with knowledge of the effect of their acts and with a
purpose in view. As a result, where it is possible, courts have a duty in
the interpretation of a statute to adopt a construction which
harmonizes and reconciles it with other provisions dealing with the
same subject matter. La.Civ. Code art. 13.

Carollo v. Dep’t of Transp. & Dev., 21-1670, p. 13 (La. 9/9/22), 346 So.3d 751,

760, (case citations omitted).

The issue presented in Rismiller, 330 So.3d 145, arose from the legislature’s

inclusion of “children” in La.Civ.Code art. 2315 in 1932. In 2022, the legislature

amended La.Civ.Code art. 2315.1 and La.Civ.Code art. 2315.21 and changed the

definition of “children” to include a “child . . . by adoption” and a “child given in

adoption,” thereby addressing the supreme court’s conclusion in Rismiller that a

child given up for adoption did not have a right of action to collect survival

damages or wrongful death damages under these statutes. When making those

amendments, the legislature did not see fit to address Arnold’s arguments.

Accordingly, under the clear language of these provisions, Arnold does not have a

right of action for survival damages herein.

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Acts 2022, No. 718, § 1 amended La.Civ.Code art. 2315.1 and La.Civ.Code art. 2315.2
by inserting the following provisions to each article:

D. (1) 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.

(2) As used in this Article, the words “child”, “brother”, and “sister” include a child,
brother, or sister given in adoption, respectively.
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In Rismiller, 330 So.3d 145, the supreme court affirmed prior decisions

holding La.Civ.Code art. 2315.1 and 2315.2 are independent of and not affected by

laws governing successions. Therefore, only persons specifically identified in

La.Civ.Code art. 2315.1 and La.Civ.Code art. 2315.2 have a right of action for

survival and wrongful death damages. Pursuant to La.Civ.Code art. 2315.1(B),

succession representatives have a right of action for survival damages only “in the

absence of any class of beneficiary set out in Paragraph A.” Arnold, as the child of

Rosalie and John and the sibling of Kimberly, is a beneficiary for purposes of

La.Civ.Code art. 2315.1(B). Therefore, he has no claim for survival damages.

Louisiana Civil Code Article 2315.2 does not provide a right of action for

succession representatives to recover wrongful death damages. Accordingly,

Arnold, as the independent administrator of Rosalie and John’s succession and

Kimberly’s succession, does not have a claim for wrongful death damages either.

DISPOSITION

For the reasons discussed herein, the trial court’s judgment dismissing with

prejudice the claims of Arnold Lyle Lewis, as the independent administrator of

Rosalie and John Lewis’s succession and Kimberly Lewis Evans’s succession, for

survival damages and wrongful death damages is affirmed. All costs are assessed

to Arnold Lyle Lewis.

AFFIRMED.

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