KHRISTY GOINS RISMILLER, TUTRIX FOR DANIEL EDWARDS GOINS VERSUS GEMINI INSURANCE COMPANY Consolidated With DAVID WATTS VERSUS MARK GORDON Consolidated With SHEILA SMITH VERSUS GEMINI INSURANCE COMPANY Consolia

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-812

SUCCESSION OF RICHARD STEWART, JR., ET AL.

VERSUS

MARK ISAIAH GORDON, ET AL.

**********

ON APPLICATION FOR SUPERVISORY WRITS FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 49,686 C/W 49,751 C/W 49,832
HONORABLE JOHN C. REEVES, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Sylvia R. Cooks, Billy H. Ezell, Shannon J. Gremillion, Phyllis
M. Keaty, John E. Conery, D. Kent Savoie, and Van H. Kyzar, Judges.

Cooks, J., concurs in part and dissents in part.

Savoie, J., concurs in part and dissents in part, for the reasons expressed by Judge
Cooks, and for the additional reasons assigned.

Conery, J., concurs in part and dissents in part for the reasons expressed by Judges
Savoie and Cooks, and for the additional reasons assigned.

WRIT GRANTED AND MADE PEREMPTORY;
EXCEPTIONS OF NO RIGHT OF ACTION GRANTED IN PART;
REMANDED FOR FURTHER PROCEEDINGS.

Andre C. Gaudin
M. Joey Bernard
Burglass & Tankersley, LLC
5213 Airline Drive
Metairie, LA 70001
(504) 836-0422
COUNSEL FOR DEFENDANT/APPLICANT:
Kenneth Boone d/b/a Boone Trucking

Timothy W. Hassinger, T.A.
Patrick J. Schepens
Galloway, Johnson, Tompkins, Burr & Smith
3 Sanctuary Boulevard, Third Floor
Mandeville, LA 70471
(985) 674-6680
COUNSEL FOR DEFENDANT/APPLICANT:
Mark Isaiah Gordon

Charles S. Norris, Jr.
Christopher J. Norris
Norris Law Firm, LLC
P. O. Box 400
8 North Oak Street
Vidalia, LA 71373
(318) 336-1999
COUNSEL FOR PLAINTIFF/RESPONDENT:
Khristy Goins Rismiller, Tutrix for Daniel Goins

Colt J. Fore
D. Blayne Honeycutt
Fayard and Honeycutt
519 Florida Avenue, SW
Denham Springs, LA 70726
(225) 664-0304
COUNSEL FOR PLAINTIFF/RESPONDENT:
David Watts

Virgil Russell Purvis, III
Smith, Taliaferro & Purvis
407 Mound Street
Jonesville, LA 71343
(318) 339-8526
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
Succession of Richard Stewart, Jr.
Richard Stewart, Sr.
Vera Anita Stewart
Raymond Kelly
Donna Kelly

J. Rock Palermo, III
Veron, Bice, Palermo
P. O. Box 2125
Lake Charles, LA 70602-2125
(337) 310-1600
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
Succession of Richard Stewart, Jr.
Richard Stewart, Sr.
Vera Anita Stewart
Raymond Kelly
Donna Kelly

Jeremy Z. Soso
Lambert & Nelson
701 Magazine Street
New Orleans, LA 70130
(504) 581-1750
COUNSEL FOR PLAINTIFF/RESPONDENT:
Sheila Smith

Joe Meng
Attorney at Law
205 South Broadway, Suite A
Natchez, MS 39120
(601) 445-8111
COUNSEL FOR PLAINTIFF/RESPONDENT:
Sheila Smith

Micah A. Gautreaux
Degan, Blanchard & Nash
6421 Perkins Road, Bulding C, Suite B
Baton Rouge, LA 70808
(225) 610-1110
COUNSEL FOR DEFENDANT/RESPONDENT:
Gemini Insurance Company

GREMILLION, Judge.

This consolidated matter involves a dispute over who has a right of action to

assert survival and wrongful death claims arising out of an auto accident and

subsequent death of Richard Stewart Jr. (Stewart) and his minor children.1 For the

following reasons, we find the trial court erred in denying Defendants’ exceptions

of no right of action pertaining to the survival and wrongful death actions asserted

by the Succession of Richard Stewart Jr., Raymond Kelly, and Donna Kelly. We

further remand for proceedings consistent with this opinion to allow joinder of an

indispensable party.

FACTUAL AND PROCEDURAL BACKGROUND

On October 1, 2015, on U.S. Highway 84 in Concordia Parish, an eighteen-

wheeler truck driven by Mark Gordon and owned by Kenneth Boone d/b/a Boone

Trucking was involved in a head-on collision with a vehicle being driven by Stewart.

Stewart and his two minor children, George Stewart and Vera Cheyenne Stewart,

were killed in the accident.

George and Vera Cheyenne were Stewart’s biological children from a

relationship with Brandi Hardie; however, Stewart and Hardie were never married.

At the time of the accident, Raymond and Donna Kelly had custody of Vera

Cheyenne, and Jimmy and Tammy Johnese had custody of George.

Stewart had two other biological children who were adults at the time of the

accident: Daniel Goins and David Watts. Goins and Watts were born during

Stewart’s marriage to Lisa Watts Stewart, and they were given up for adoption.

Goins was adopted by George and Joyce Goins, who are Stewart’s uncle and aunt.

Watts was adopted by his maternal grandparents, Mary and Jimmy Watts. At the

1
This writ is consolidated with 17-809 and 17-811.

time of the accident, Stewart and Lisa were physically separated, but they had never

legally divorced. It has been alleged that Lisa currently resides in a care facility in

another state.

Following the accident, three separate survival and wrongful death actions

arising out of Stewart’s and the minor children’s deaths were filed in the trial court.

Two of these actions involve claims filed by or on behalf Stewart’s adult biological

children, Goins and Watts, who had been adopted by other family members during

their minority. 2 The plaintiffs in the third action are: Stewart’s Succession;

Stewart’s parents, Richard Stewart, Sr. and Vera Stewart; and Raymond and Donna

Kelly (collectively, “the Stewart Plaintiffs”). 3 All three actions were consolidated

in the trial court.

In each of the three actions, Defendants Mark Gordon and Kenneth Boone

d/b/a Boone Trucking filed exceptions of no right action, which the trial court denied.

In connection with Watts’ and Goins’ survival and wrongful death actions arising

from Stewart’s death, the trial court found that:

the cases of Levy v. Louisiana, 391 U.S. 68, (1968), and Turner v. Busby,
03-3444 (La. 9/9/04), 883 So.2d 412 are persuasive in holding that “it
is the biological relationship and dependency which is determinative of
the child’s rights in these cases, and not the classification into which
the child is placed by the statutory law of the State.” Thus, 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.

Further, in connection with Watts’ and Goins’ survival and wrongful death

actions arising from the deaths of their biological half-siblings, George and Vera

2
Khristy Goins Rismiller, Tutrix for Daniel Edward Goins v. Gemini Insurance Company,
et al., Louisiana 7th Judicial District Court Docket Number 49,686; and David Watts v. Mark
Gordon, et al., Louisiana 7th Judicial District Court Docket Number 49,751.
3
Succession of Richard Stewart, Jr., et al. v. Mark Isaiah Gordon, et al., Louisiana 7th
Judicial District Court Docket Number 49,832.
2

Cheyenne, the trial court found that the children’s mother, Brandi Hardie, had

abandoned the children during their minority, and, therefore, in accordance with

La.Civ.Code arts. 2315.1 and 2315.2, she was deemed to have predeceased the

children. The trial court concluded that Goins and Watts, as biological half-siblings,

were allowed to assert survival and wrongful death claims arising out of the

children’s deaths. No specific reasons for the trial court’s denial of Defendants’

exceptions of no right of action can be found in the record.

Following the trial court’s ruling, Defendants filed three separate writ

applications with this court seeking review of the trial court’s denial of their

exceptions. We granted the writ applications and heard oral argument. This

particular writ application involves the trial court’s denial of Defendants’ exception

of no right of action pertaining to the claims of the Stewart Plaintiffs.

ANALYSIS

In Mississippi Land Co. v. S & A Properties II, Inc., 01-1623, pp. 2-3 (La.App.

3 Cir. 5/8/02), 817 So.2d 1200, 1202-03, we stated:

Under La.Code Civ.P. art 927, a defendant may raise the
peremptory exception of no right of action. An exception of no right of
action has the function of determining whether the plaintiff has any
interest in the judicially enforced right asserted. St. Jude Medical Office
Bldg., Ltd. Partnership v. City Glass and Mirror, Inc., 619 So.2d 529
(La.1993). The function of this exception is to terminate the suit
brought by one who has no judicial right to enforce the right asserted in
the lawsuit. Yolanda F.B. v. Robert D.R., 00-958 (La.App. 3 Cir.
12/6/00); 775 So.2d 1107. The determination of whether a plaintiff has
a right of action is a question of law. Horrell v. Horrell, 99-1093
(La.App. 1 Cir. 10/6/00); 808 So.2d 363, writ denied 01-2546
(La.12/7/01); 803 So.2d 971. Accordingly, we review exceptions of no
right of action de novo. Id.

A survival action “is transmitted to beneficiaries upon the victim’s death and

permits recovery only for the damages suffered by the victim from the time of injury

3

to the moment of death.” Taylor v. Giddens, 618 So.2d 834, 840 (La.1993). Survival

actions are governed by La.Civ.Code art. 2315.1, which states:

A. If a person who has been injured by an offense or quasi
offense dies, the right to recover all damages for injury to that person,
his property or otherwise, caused by the offense or quasi offense, shall
survive for a period of one year from the death of the deceased in favor
of:
(1) The surviving spouse and child or children of the deceased,
or either the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of
them if he left no spouse or child surviving.

(3) The surviving brothers and sisters of the deceased, or any of
them, if he left no spouse, child, or parent surviving.

(4) The surviving grandfathers and grandmothers of the deceased,
or any of them, if he left no spouse, child, parent, or sibling surviving.

B. In addition, the right to recover all damages for injury to the
deceased, his property or otherwise, caused by the offense or quasi
offense, may be urged by the deceased's succession representative in
the absence of any class of beneficiary set out in Paragraph A.

C. The right of action granted under this Article is heritable, but
the inheritance of it neither interrupts nor prolongs the prescriptive
period defined in this Article.

D. As used in this Article, the words “child”, “brother”, “sister”,
“father”, “mother”, “grandfather”, and “grandmother” include a child,
brother, sister, father, mother, grandfather, and grandmother by
adoption, respectively.

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.

A wrongful death action is a separate action that “does not arise until the

victim dies and it compensates the beneficiaries for their own injuries which they

suffer from the moment of the victim’s death and thereafter.” Taylor, 618 So.2d at

840. Louisiana Civil Code Article 2315.2 provides as follows with respect to a

wrongful death action:

4

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.

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.

Claims Asserted by Raymond and Donna Kelly

At the time of the accident, the Kellys had legal custody of Vera Cheyenne.

Neither La.Civ.Code art. 2315.1 nor 2315.2 contemplate the legal custodian of a

minor to be within a class of persons with a right to assert a survival or wrongful

death action arising from the minor child’s death. Therefore, the trial court erred in

denying Defendants’ exceptions as to Raymond and Donna Kelly’s claims.

5

Claims Asserted by Richard Stewart Sr. and Vera Stewart

A. Survival Action and Wrongful Death Claims of Biological Children Given Up

for Adoption

Preliminary to the claims of the Stewarts, we will address the issue of what,

if any, rights Goins and Watts have as biological relations of the deceased who were

given up for adoption. For the reasons that follow, 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.

It has long been held that children given up in adoption are divested of their

legal rights except as to those relating to inheritance. See La.Civ.Code art. 199.

Survival actions and wrongful deaths actions are not part of an inheritance. See

Domingue v. Carencro Nursing Home, Inc., 520 So.2d 996 (La.App. 3 Cir. 1987),

writ denied, 522 So.2d 565 (La.1988). Survival and wrongful deaths actions are

statutorily created remedies in tort exclusively available to certain listed

beneficiaries. Nelson v. Burkeen Const. Co., 605 So.2d 681 (La.App. 2 Cir. 1992).

Children given up for adoption lose their legal rights to bring claims under

La.Civ.Code. arts. 2315.1 and 2315.2. Domingue, 520 So.2d 996. See also

Hernandez v. State, DOTD, 02-162, 02-163 (La.App. 4 Cir. 10/16/02), 841 So.2d

808, writs denied, 03-261, 03-307 (La. 4/25/03), 842 So.2d 399, 640 So.2d 1349.

B. Wrongful Death and Survival Action Arising out of Stewart’s Death

Stewart’s parents, Richard Stewart, Sr. and Vera Stewart (“the Stewarts”)

have a right to assert a survival action and a wrongful death action arising out of

Stewart’s death only if he left no surviving spouse or children. La.Civ.Code arts.

2315.1(A)(2) and 2315.2(A)(2). Stewart was survived by Lisa Watts Stewart, to

6

whom he was legally married. Therefore, the Stewarts are precluded from asserting

wrongful death and survival actions.4

C. Wrongful Death and Survival Action Arising out of the Children’s deaths.

The Stewarts, who are the grandparents of the George and Vera Cheyenne,

have a right to assert survival and wrongful death actions arising out of their deaths

only if the children left “no spouse, child, parent, or sibling surviving.”

La.Civ.Code. arts. 2315.1(A)(4) and 2315.2(A)(4). The parties do not suggest that

the children’s father survived the children. Further, as previously noted, the children

given up for adoption, Watts and Goins, have no assertable claims. It is, however,

undisputed that the children’s biological mother, Brandi Hardie, is living;

nevertheless, the trial court found that she had abandoned the children as

contemplated by La.Civ.Code. arts. 2315.1(E) and 2315.2(E), and therefore it

considered Hardie to have predeceased the children. Although there was significant

evidence suggesting that Hardie did abandon her children, she was not made a party

to the proceeding. As an indispensable party she must be joined and cited and served

with notice and given an opportunity for a hearing on this issue. La.Code Civ.P.

arts. 644 and 645. If, after the hearing, the trial court finds that Hardie has abandoned

her children, the Stewarts would have a right to pursue the survival and wrongful

death claims.

The Succession’s Claims

A. Wrongful Death Actions Arising out of Stewart’s and the Children’s Deaths:

The Succession of Richard Stewart, Jr. asserted wrongful death claims arising

out of Stewart’s and the minor children’s deaths. The Succession is not within the

4
Although immaterial to whether the Stewarts have wrongful death or survival action
claims because Stewart was survived by a legal spouse, the issue of whether Goins and Watts, who
were given up for adoption during their minority, have survival and/or wrongful deaths claims in
addition to those of their biological mother, Lisa Watts Stewart, is addressed.
7

express classes of persons entitled to bring a wrongful death action under

La.Civ.Code art. 2315.2. Therefore, Defendants’ exceptions of no right of action

should have been granted as to these claims.

B. Survival Actions Arising out of Stewart’s and the Children’s Deaths:

The Succession also asserted a survival action under La.Civ.Code art. 2315.1

arising out of Stewart’s and the children’s deaths. A succession, through its

representative, has a right to assert a survival action only “in the absence of a

beneficiary set out in [La.Civ.Code. art. 2315.1(A)].” La.Civ.Code. art. 2315.1(B).

Lisa Watts Stewart has the right to assert a survival action for Stewart’s death;

therefore, the Succession is precluded from asserting a claim. Hardie has a survival

action claim if it is found that she has not abandoned the children. If she has

abandoned them, the claim belongs to the grandparents, the Stewarts. Thus, the

Succession has no claims for survival actions for Stewart, George, or Vera

Cheyenne, and Defendants’ exceptions as to these claims should have been granted.

CONCLUSION

Lisa Stewart Watts is the only party with viable claims for a survival action

and wrongful death claim for the death of Richard Stewart, Jr. We remand to the

trial court in order that Brandie Hardie be joined as an indispensable party for a

determination of whether she abandoned the children. If she abandoned the children,

Richard Stewart, Sr. and Vera Stewart are the proper parties to assert the survival

and wrongful death actions for the deaths of George Stewart and Vera Cheyenne

Stewart.

Accordingly, we grant Defendants’ writ application, make it peremptory, and

reverse the trial court’s denial of Defendants’ exceptions of no right of action as to

the claims asserted by the Succession of Richard Stewart, Jr., Raymond Kelly,

8

Donna Kelly, and Richard Stewart Sr. and Vera Stewart as it pertains to wrongful

death and survival action claims for Stewart. Costs of these proceedings are assessed

to the Succession of Richard Stewart, Jr., Raymond Kelly, and Donna Kelly.

WRIT GRANTED AND MADE PEREMPTORY;
EXCEPTIONS OF NO RIGHT OF ACTION GRANTED IN PART;
REMANDED FOR FURTHER PROCEEDINGS.

9

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
17-812

SUCCESSION OF RICHARD STEWART, JR. ET. AL.
VERSUS
MARK ISIAH GORDON, ET. AL.

COOKS, J. Concurs in part and dissents in part.
The majority attempts to remove Daniel Edward Goins (Goins) and David

Watts (Watts), decedent’s surviving children given up for adoption, from the list of

beneficiaries expressly included by the legislature in the survival and wrongful death

actions provided in La.Civ.Code articles 2315.1 and 2315.2 respectively. It does

this while readily acknowledging that such children are entitled under our law to

inherit from their biological parent as well as their adopted parent. As I explain more

fully below, I cannot imagine any reason nor rationale to exclude legitimate

biological children of a decedent from recovering these types of damages when the

legislature did not, and in my view could not do so under the settled decisions of the

United States Supreme Court and the Louisiana State Supreme Court, as well as the

applicable provisions of the Louisiana Civil Code. The majority also improperly

denies these children their right to recover damages for the loss of their half-siblings

in the absence of any surviving spouse, child or parent, contrary to the law and

jurisprudence. La.Civ.Code art. 2315.1(A)(3); La.Civ.Code art. 2315.2(A)(2); and

Gibbs v. Delatte, 05-821 (La.App. 1 Cir. 12/22/05), 927 So.2d 1131, writ denied,

06-198 (La. 4/24/06), 926 So.2d 548.1 See also La.Civ.Code art. 199. It remains to

1
The words “brother” and “sister” as denoted in [La.Civ.Code] arts.
2315.1 and 2315.2 include half-brothers and half-sisters. See Ledet v. State, Dep’t
of Health and Human Res., 465 So.2d 98, 102 (La.App. 4 Cir.), writ denied, 468
So.2d 1211 (La.1985).
1

be seen whether Brandie Hardie abandoned her children thus prompting us to

remand the case for the reasons stated by the majority. In the event the trial court

finds she abandoned her children and would therefore be precluded from recovering

under the survival and wrongful death Articles, then these half-siblings would be

entitled to proceed.

Children-given-in-adoption are among the named beneficiaries who enjoy the

right to bring an action under La.Civ.Code arts. 2315.1and 2315.2 for the death of

their biological father and half-siblings. Louisiana Civil Code Article

2315.1(emphasis added), entitled “Survival Action” 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. . .

(3) The surviving brothers and sisters of the deceased, or any of
them, if he left no spouse, child, or parent 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. . .

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 Civil Code Article 2315.2(emphasis added), entitled “Wrongful

Death Action” provides 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:

Gibbs, 927 So. 2d at 1139–40.

2

(1) The surviving spouse and child or children of the deceased, or
either the spouse or the child or children . . .

(2) The surviving brothers and sisters of the deceased, or any of
them, if he left no spouse, child, or parent surviving. . .

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 meaning of the simple words “child or children” seem clear enough to

me, but the legislature does not leave us to our own definition of such “terms of

law.” In Book III, Title XXV of the Civil Code, under the heading “Of the

Signification of Sundry Terms of Law Employed in This Code” Article 3506

(emphasis added) specifically provides:

Whenever the terms of law, employed in this Code, have not
been particularly defined therein, they shall be understood as
follows:

...

8. 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. . .

In both La.Civ.Code Article 2315.1(D) and 2315.2(D) the legislature provides

that the word “child” as used in these articles, along with other enumerated terms of

consanguinity, “include[s] “a child by adoption.” This extra provision makes no

change in the definition of child(ren) provided in La.Civ.Code art. 3506(8) but

merely repeats the definition including that term in the list of other terms that are not

defined in La.Civ.Code Art. 3506, i.e “brother, sister, father, mother, grandfather,

and grandmother.” Thus, by the express provision of the Civil Code the term of law

3

“child or children” as used in La.Civ.Code arts. 2315.1 and 2315.2 “shall be

understood” to mean children born of marriage. The legislature in La.Civ.Code

art. 3506 does not except or remove children born of marriage given up for adoption

from inclusion in this “term of law” and this court is without authority to do so. It

is worthy of note that, as the comment to La.Civ.Code art. 3506 points out, in 1979

the legislature changed the definition of children to exclude illegitimate children.

Subsequently, the legislature repealed that change. The article was last amended in

2004 and to date there has been no change to the article to exclude children-given-

in-adoption. There is no question here that both Goins and Watts are children born

of the marriage between Richard Stewart, Jr. and Lisa Watts Stewart. The majority

acknowledges this fact. For me, the inquiry should end here, but alas the majority

travels a different path.

The majority says: “[i]t has long been held that children given up in adoption

are divested of their legal rights except as to those relating to inheritance,” citing

La.Civ.Code art. 199, and a number of appellate court cases in support of that

proposition. This perfunctory summation of the law ignores landmark United States

Supreme Court decisions, Louisiana State Supreme Court decisions, and relies on

the language in the prior version of the Civil Code Article (La.Civ.Code art. 214)

regarding the effect of adoption which stated: “... the adopted person and his lawful

descendants are relieved of all of their legal duties and divested of all of their legal

rights with regard to the blood parent or parents and other blood relatives, except the

right of inheritance from them.” Nelson v. Burkeen Const. Co., 605 So. 2d 681, 683

(La.App. 2 Cir. 1992), writ denied, 16-1490 (La. 11/15/16), 209 So.3d 781. The

current Civil Code provision setting forth the effect of adoption is found in

La.Civ.Code art. 199 (emphasis added), which replaced the previous language with

the following:

4

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.2

The Comments to La.Civ.Code art. 199 (emphasis added) note that “[a]mong

the exceptions to the severance of the legal relationship” are the right of inheritance;

retention of the legal relationship between the adopted child and his legal parent who

is married to the adoptive parent; and the right of grandparents (parent of the legal

parent) to have visitation with the child. These are only some of the exceptions to

the effect of the termination of the “legal relationship” resulting from adoption. The

majority’s position ignores the qualifier “except as provided by law.” The

legislature has expressly “provided by law” the beneficiaries permitted recovery in

the survival and wrongful death actions. Both La.Civ.Code art. 2315.1(A)(1) and

La.Civ.Code art. 2315.2(A)(1) specifically provide that the “surviving spouse and

child or children of the deceased” are first in preference to recover damages under

these provisions. No distinction is made regarding the biological child or children

of the decedent as legitimate, illegitimate, legitimated, and/or children-given-in-

adoption. Moreover, the legislature specifically includes the only non-biological

progeny of the decedent by adding a provision to expressly include adopted children.

The article also includes an express prohibition against a father or mother who has

abandoned a deceased “child” “during his minority” from asserting either a survival

action or wrongful death claim for such child. Presumably this would include any

deceased child of the parent whether they were abandoned by being given up in

adoption or by simply not providing any support for the child for the requisite period

of time. This provision insures equal treatment to all children abandoned by their

biological parent(s) without reference to other laws. Additionally, La.Civ.Code art.

2
Louisiana Civil Code Article 178 defines filiation as: “… the legal relationship between a
child and his parent.”
5

2315.1(B) specifically provides for an action by the decedent’s estate, in the absence

of a surviving spouse, child, mother, father, or sibling. This is so because the

survival action recognizes recovery for damage suffered by the decedent which,

though it might not be ascertained until after the person’s death, is nonetheless part

of his/her patrimony. Even the majority acknowledges adopted children enjoy the

right to inherit from their biological parent. These children also enjoy the right to

inherit from their half-siblings. See La.Civ.Code art. 199. It is the prerogative of

the legislature to provide for devolution of a person’s estate by means other than

through succession proceedings.3 It is not within their authority to legislatively deny

the right to accede to the decedent’s property accorded all children of a decedent,

including, by specific legislation, children-given-in-adoption for to do so would run

afoul of our state and federal constitutional right to equal protection under the law.4

The legislature makes no such attempt in the survival and wrongful death provisions

of the Civil Code and the majority errs in making it so.

Louisiana Civil Code Article 2315.1 provides a unique means for the

legislatively created claim of the decedent to devolve to his family outside ordinary

3
Louisiana law provides for means of other types of property of the decedent to devolve to
his family outside of succession proceedings such as life insurance proceeds.
4

No person shall be denied the equal protection of the laws. No law shall
discriminate against a person because of race or religious ideas, beliefs, or
affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate
against a person because of birth, age, sex, culture, physical condition, or political
ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the
latter case as punishment for crime.

La. Const. art. I, § 3.

All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV.

6

succession proceedings by designating a hierarchy of beneficiaries which expressly

includes any surviving “child or children” of the deceased. There is absolutely no

indication in the language of Article 2315.1 that indicates the legislature intended to

exclude children-given-in-adoption, who are otherwise entitled to inherit the

patrimony of their biological parent, from being a beneficiary of this portion of the

decedent’s “estate.” The article merely provides a mechanism outside the normal

succession procedure which legal scholars tell us was devised as a means to

encourage the family members left behind to pursue the decedent’s claim when he

dies either during the pendency of litigation or before the litigation even gets

underway. See Collin S. Buisson, Juneau v. State Ex Rel. Department of Health and

Hospitals-Killed by the Calendar: A Seemingly Unfair Result but A Correct Action,

91 Tul. L. Rev. 43 (2017).

In Jenkins v. Mangano, 00-790 p. 3 (La. 11/28/00), 774 So.2d 101,

103(emphasis in original) the Louisiana State Supreme Court, specifically addressed

the question of “Who is a Child under 2315.2” (The rationale is even more applicable

to article 2315.1.):

In Chatelain[v. State, DOTD, 586 So.2d 1373 (La. 1991)], this
court determined 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. Warren v. Richard, 296 So.2d
813, 814 (La.1974). Once the biological relationship is established, an
inquiry must be made as to whether the child is classified as legitimate
or illegitimate. Civil Code Art. 178. 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.
See Levy v. Louisiana, 253 La. 73, 216 So.2d 818 (1968).

The supreme court concluded in Jenkins that because the “tort victim [was]

survived by a child” the surviving parents of the victim could not proceed to recover

in a survival or wrongful death action even though the child “did not timely file a

filiation action.” Jenkins, 774 So.2d at 105 (emphasis added). The child, said the

high court, “is not precluded from raising her existence as a defense as long as the

7

defendant proves, by clear and convincing evidence, the child was acknowledged by

the tort victim before death.” Id. In Warren v. Richard, 296 So.2d 813, p. 815 (La.

1974) our state supreme court faced the question “can an illegitimate child recover

for the wrongful death of her biological father when, at the same time, she is also the

legitimate child of another man under the law?” The supreme court answered in the

affirmative, constrained, it said, by the controlling decisions of the United States

Supreme Court. We are no less constrained by these decisions of the highest court

in the land and in this state. The supreme court explained that “it is the dual

paternal parentage of this child—one father created by nature, another created

by law—which poses the problem” to be resolved. Id. The present case presents

the same problem for resolution—dual paternal parentage of the child—one father

created biologically “by nature” and one “created by law”—adoption. The court in

Warren included a thorough review of the decisions of the United States Supreme

Court mandating the constitutional outcome of the court’s decision and it is worth

quoting at length the cases explained therein:

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. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct.
1509, 20 L.Ed.2d 436 (1968).

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.’

8

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. Stokes v. Aetna
Casualty and Surety Co., 232 So.2d 328 (La.App.1969), aff’d 257 La.
424, 242 So.2d 567. 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. The
Court stated the basis for its decision thusly:

The status of illegitimacy has expressed through the
ages society’s condemnation of irresponsible liaisons
beyond the bonds of marriage. But visiting this
condemnation on the head of an infant is illogical and
unjust. Moreover, imposing disabilities on the illegitimate
child is contrary to the basic concept of our system that
legal burdens should bear some relationship to individual
responsibility or wrongdoing. Obviously, no child is
responsible for his birth and penalizing the illegitimate
child is an ineffectual—as well as unjust—way of
deterring the parent.

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:

We have held that under the Equal Protection
Clause of the Fourteenth Amendment a State may not
create a right of action in favor of children for the wrongful
death of a parent and exclude illegitimate children from
the benefit of such a right. Levy v. Louisiana, 391 U.S. 68,
88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). Similarly, we have
held that illegitimate children may be not (sic) excluded
from sharing equally with other children in the recovery of
workmen’s compensation benefits for the death of their
parent. Weber v. Aetna Casualty & Surety Co., 406 U.S.
164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972). Under these
decisions, a State may not invidiously discriminate against
illegitimate children by denying them substantial benefits
accorded children generally.

To say that the child Iris had no right to recover for her
biological father’s wrongful death because the law presumed her to be
the legitimate child of another man would run counter to the principles
established in the decisions of the United States Supreme Court
referred to above and would ignore the existence of the child’s
biological father.

For the purpose of this decision, it is not necessary that we
determine to which class of illegitimate filiation this child belongs. It
suffices that we simply determine that the child is in fact the

9

biological child of the decedent David Lee. And, since we see no real
dispute on this point, the case is in a posture for decision. Babineaux v.
Perni-Bailey Brilling Co. et al., 261 La. 1080, 262 So.2d 328 (1972).
The fact that the law considers the child to be the legitimate child of
Albert Gray will not alter the result. La. Civil Code art. 184.

Here the child was registered as the child of the decedent,
recognized as such by him, educated in his name and sworn to be his
child by the mother. The fact that the child is by Louisiana’s statutory
scheme made the legitimate child of Albert Gray cannot deprive her of
a right which illegitimate children generally may have for the wrongful
death of their biological fathers. As we understand the rationale of
the decisions of the United States Supreme Court, it is the biological
relationship and dependency which is determinative of the child’s
rights in these cases, and not the classification into which the child
is placed by the statutory law of the State.

The argument is made that this result will accord more rights to
this child than are ordinarily accorded the legitimate child—that she
will be able to recover for the death of her biological father as well as
for the death of Albert Gray, because the law deems her his legitimate
offspring. 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 umindful 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 United States Supreme
Court to which we must adhere.

Warren, 296 So. 2d 816–17.

The same rationale applies here. The dual parentage question is answered in

the affirmative for the same reasons. These children-given-in-adoption, like Iris,

had one father created by nature, another created by law, and according to the

United States Supreme Court, and our state supreme court, the blood relationship of

these children and their biological father is the “determinative factor” in deciding

whether “child” as used in La.Civ.Code art. 2315.1 and 2315.2 includes surviving

children-given-in-adoption as beneficiaries entitled to recover for the loss of their

parent. Consistent with this rationale is the definition of children as a term of law

used in the Civil Code provided in La.Civ.Code art. 3506 which includes children

10

born of marriage. It is not the child-given-in-adoption’s fault it was born, and it is

not its fault it was given up for adoption any more than it is the illegitimate child’s

fault it was born out of marriage and not legitimated by its parent. I find it deeply

troubling that under the majority’s holding, a legitimate biological child given up

for adoption would not enjoy the same rights as an illegitimate biological child who

is also a legitimate legal child of another parent, for the loss of the same biological

parent. I believe such an outcome is not constitutionally sound in light of the United

States Supreme Court’s and Louisiana State Supreme Court’s application of the

Equal Protection Clause of the U.S. Constitution and our state constitution in the

cases discussed herein. The two high courts tell us that the biological blood tie is

important between all biological offspring and their deceased parent. The language

of La.Civ.Code arts. 2315.1 and 2315.2 cannot be read to exclude a child-given-in-

adoption when the legislature made no such provision. The inclusive language

“surviving child or children of the deceased” encompasses all of the surviving

biological children of the decedent—legitimate, illegitimate, legitimated, and given-

in-adoption—and the non-biological adopted child. See Jenkins, Supra. and

La.Civ.Code art. 3506(8).

Louisiana Civil Code Article 2315 provides the foundation for recovery of

damages for “every act whatever of man that causes damage to another.” It also

provides:

Damages may include loss of consortium, service, and society,
and shall be recoverable by the same respective categories of persons
who would have had a cause of action for wrongful death of an injured
person.

La.Civ.Code art. 2315(B).

Louisiana Code of Civil Procedure Article 801 provides for the substitution

of a legal successor for a deceased party:

When a party dies during the pendency of an action which is not
extinguished by his death, his legal successor may have himself

11

substituted for the deceased party, on ex parte written motion supported
by proof of his quality.

As used in Article 801 through 804, “legal successor” means:

(1) The survivors designated in Articles 2315.1 of the Civil
Code, if the action survives in their favor; and

(2) Otherwise, it means the succession representative of the
deceased appointed by a court of this state, if the succession
is under administration therein; or the heirs and legatees of
the deceased, if the deceased’s succession is not under
administration therein.

Thus, the provisions of the Civil Code and the Code of Civil Procedure are

internally consistent when it comes to the treatment of surviving beneficiaries and

takes into consideration the individuals covered in both the survival and wrongful

death actions. The majority’s prohibition against recovery by children-given-in-

adoption for the damages done to their biological parent, or the loss personally

suffered as the result of their biological parent’s death (loss of consortium, society,

etc.), runs afoul of this scheme and will produce inconsistent results. For example,

in the case in which the child-given-in-adoption’s parent pursuing litigation

involving a heritable right or damage occasioned other than by an offense or quasi

offense provided in article 2315.1 and 2315.2, dies during the course of litigation,

such child, as an heir of decedent recognized by law, would be a proper party to be

substituted in the litigation under La.Code.Civ.P. art 801. The majority must be in

agreement with this assessment as it acknowledges that a child-given-in-adoption

inherits from its biological parent. But, according to the majority’s interpretation of

the term “surviving child or children” in Articles 2315.1 and 2315.2, this same child

would be precluded from recovering for its parent’s loss, or rather from continuing

the pursuit of a survival claim for injury resulting in death under Article 2315.1, and

from pursuing its own personal loss as the result of the wrongful death of its parent

under Article 2315.2. Such an arbitrary and inequitable result is not consistent with

constitutional notions of equal protection and fundamental fairness. But the law,
12

properly applied, results in no such inequity or disparity. The cases cited by the

majority opine that the legislature could have expressly listed children-given-in-

adoption in Articles 2315.1 and 2315.2 had it intended to include such children in

the list of beneficiaries. In my view, the legislature could not have been clearer when

it provided that the “surviving spouse and child or children of the deceased”

constituted the primary beneficiary(ies) priming all others. Likewise, the legislature

could not be clearer in the express definition of the legal term “children” when used

in the Civil Code as provided in La.Civ.Code art. 3506(8). The United States

Supreme Court, as recognized by our state supreme court in Warren in 1974, had

made it clear, prior to the legislative change in 1986 that enacted articles 2315.1 and

2315.2 legislatively establishing the survival and wrongful death actions that, as the

Jenkins court put it “all children have the right to bring an action for wrongful

death and survival action,” Jenkins, 774 So.2d at 103. The courts did not include

any modifier or exception to that pronouncement. It is, as the United States Supreme

Court has held, the biological relationship that is determinative of a child’s right to

recover for the loss of its blood parent, See Levy v. Louisiana, 391 U.S. 73, 88 S.Ct.

1515 (1968); Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73,

88 S.Ct. 1515 (1968); and Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92

S.Ct. 1400 (1972), “not the classification into which the child is placed by the

statutory law of the State.” Warren, 296 So.2d at 816-817, relying on Levy, Glona

and Weber. And as the state supreme court said: “to say that [a] child [has] no right

to recover for her biological father’s wrongful death because the law presumed her

to be the legitimate child of another man would run counter to the principles

established in the decisions of the United States Supreme Court [] and would ignore

the existence of the child’s biological father.” Id. How can it be any less so for

these surviving legitimate biological children given up for adoption? It may well be

that a child-given-up-in-adoption may not incur the same degree of damage as

13

another offspring which the decedent was caring for at the time of his death, but the

degree of loss is not the controlling factor for entitlement to recovery. That speaks

only to quantum which will surely vary according to each child’s personal

relationship and/or dependency on the deceased parent irrespective of the status of

the biological child as illegitimate, legitimate, legitimated, given-in-adoption or of

the non-biological adopted child.

It may be of further help in understanding the correctness of my position to

examine the legislative history and purpose of La.Civ.Code arts. 2315.1 and 2315.2.

In order to fully understand the purpose of an article 2315.1
survival action, it is helpful to look at two revisions. In the 1960 Code
revisions, the legislature, for the first time, made a distinction between
property and personal damages. The Code allowed for the right of
action and proceeds from property damage suits to travel through
ordinary successions law, but the right to maintain the survival action
for personal damages was only given to an exclusive list of people laid
out in article 2315. This meant that there could be a “split” created in
the cause of action. For example, if A were in a car crash and began a
suit for both damages to his car and to his person but died soon after,
the case would be split. The suit for damages to his property would go
to his heirs through normal successions law, but the suit for damages to
his person would be given to the specific beneficiaries listed in article
2315. However, this changed with the 1986 revisions to the Civil Code.

In the 1986 revisions, the legislature revised the Code, so that the
separate rights to property damage and personal damage no longer
exist. Through the creation of article 2315.1, the legislature made clear
that rights of action for damage to both the decedent’s person and
property were to be completely separate from other successions law and
instead should be governed by article 2315.1. Therefore, the legislative
history of survival actions would seem to indicate that the legislature
did not intend to have the proceeds from the survival action suit go
through the succession, but rather go to the descendents listed in article
2315.1 . . .

Louisiana courts have held that survival actions and wrongful
death actions are ruled by specific laws, not by general laws of
successions and inheritance. In Estate of Burch v. Hancock Holding
Co., the Louisiana First Circuit stated that “wrongful death and survival
actions ... are not subject to the law[s] of marriage, of parent and child,
of inheritance, [and are not] required to conform to civil law
concepts.” The court went on to state that “[n]either the survival action
nor the wrongful death action provide[s] rights that are transmitted from
the tort victim to the victim’s heirs in an inheritance sense”—meaning
neither right “pass[es] through the victim’s succession.” Instead, both
rights are passed down to the “specified survivors” of a victim’s family

14

via the corresponding Civil Code article (i.e., article 2315.1 or
2315.2). The court held that when considering a survival action, courts
should look to the Civil Code, not other areas of law.

This type of carving out is not unique to survival actions and
wrongful death actions. There are many other examples where the
Legislature has specifically excluded certain property or rights from
passing through the succession and being governed by ordinary
successions law. For example, life insurance payments that are payable
to a named beneficiary are excluded from the succession of the
decedent.

Collin S. Buisson, Juneau v. State Ex Rel. Department of Health and Hospitals-

Killed by the Calendar: A Seemingly Unfair Result but A Correct Action, 91 Tul. L.

Rev. 43, 45–47 (2017).

In Juneau v. State ex rel. Department of Health & Hospitals, 15-1382 p. 8

(La. App. 1 Cir. 7/7/16), 197 So. 3d 398, 403, writ denied, 16-1490 (La. 11/15/16),

209 So. 3d 781, the first circuit agreed with this analysis:

The proceeds from a survival action should be excluded from the
estate of the decedent if there exists a survivor under Article 2315.1.
Indeed, it is clear ... that the deceased may have property rights that do
not go through the “succession process.” Furthermore, Article 801 of
the Louisiana Code of Civil Procedure specifically provides that a
“legal successor” includes survivors designated in Article 2315.1 of the
Civil Code, when the action survives in their favor. Albeit, one should
consider the intent of the deceased as clearly expressed in his last will
and testament, but the United States Supreme Court, in Boggs v.
Boggs, [520 U.S. 833, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997) ], held
that legislative acts (whether federal or state) govern the disposition or
transmission of certain assets, regardless of a testator’s attempt to divert
them.

The provisions of Article 2315.1 point to the
conclusion that the legislature intended for the survival
action to be “self-contained” and unaffected by the
succession distribution laws. The cases involving this
situation clearly hold that a right of action does not pass
through a victim’s succession to be transmitted to his heirs
as an inheritance. Instead, the cause of action devolves
exclusively upon the specially designated classes of
beneficiaries or survivors set forth in Article 2315.1.

Warren L. Mengis, The Article 2315.1 Survival Action: A
Probate or Non–Probate Item, 61 La. L. Rev. 417, 422 (2001)
(emphasis added) (footnotes omitted).

15

Thus, it should be clear, the legislature did not enact La.Civ.Code arts. 2315.1

and 2315.2 with any intention of changing Louisiana’s inheritance laws pertaining

to children-given-in-adoption, but merely established a separate mechanism for

beneficiaries to directly lay claim for both the damages due their biological parent

as part of his patrimony and damages incurred individually by virtue of the loss of

one’s own flesh and blood regardless of legal definitions of the “relationship” of

child and parent at the time of the parent’s death.

There are key differences between “survival actions” and
“wrongful death actions,” including how and why they are passed on to
descendants. Both actions result from a tortious incident, but the
damages awarded are meant to compensate for different types of injury.
A survival action, codified in article 2315.1, is intended to
“compensate[] the victim for the pain and suffering he endures until the
time of his death.” A survival action “does not die with the victim” and
is instead passed down to specific descendants via article 2315.1.
However, in order to be able to recover any proceeds from a survival
action, the “beneficiary or heir must survive the tort victim.”

Conversely, a wrongful death action, codified in article 2315.2,
is not intended to compensate the now deceased party who experienced
the physical harm. It is intended to give monetary compensation to
specific family members who have suffered their own loss (loss of
financial support, loss of consortium, etc.) through the death of the
injured party. In a wrongful death action, the family members are
attempting to recover for their own personal loss created by the death
of the victim, not for the victim’s pain and suffering. Thus, whereas a
survival action is created at the time of the injury to the victim, a
wrongful death action is only created upon the death of the victim.

Buisson, 91 Tul. L. Rev. at 46-7.

As Buisson explains, “survival actions were created to ensure that when a tort

victim died, his claim did not die with him” and that it “… belonged to the injured

party and, subsequent to his or her death, is brought by a listed person who is

substituted for the decedent in accordance with La. C.C. art. 2315.1.” Buisson, 91

Tul. L. Rev. at 50. Further, as he points out “[t]he wrongful death action [] is

particular to each designated member of the beneficiary class. The value of the claim

will vary, depending upon the relationship of the claimant to the decedent.” Id.

There would be no legal basis to exclude any legal heir from recovery in the survival

16

action and there is no indication the legislature intended to do so. In fact, I reiterate,

the legislature took the extra step to insure adopted children, the only non-biological

progeny of the decedent, would not be excluded from the meaning of “child or

children.” There is also no reason to exclude any of the decedent’s children,

biological or adopted, from the list of beneficiaries entitled to recover for their own

loss occasioned by the death of their biological or adoptive parent, and once again,

the legislature made clear that the only non-biological progeny of the decedent, his

adopted child, is entitled to bring the wrongful death action, too. The majority’s

opinion offers no rationale or basis for reading into these code provisions language

that is simply not there nor does it offer a reasoned explanation as to why it should

ignore the United States Supreme Court and our State Supreme Court’s fundamental

proposition that it is the biological relationship that controls matters of dual

parentage, Warren, Supra., and their express holdings that “all children have

the right to bring an action for wrongful death and survival action.” Jenkins,

774 So.2d at 103. For these reasons I dissent from the majority’s holding that

children-given-in-adoption are excluded from recovery for damages under

La.Civ.Code arts. 2315.1 and 2315.2. I also dissent from the majority’s holding that

children-given-in-adoption are not entitled to pursue survival and wrongful death

actions for their half-siblings. They are most certainly entitled to bring such actions

in the absence of a surviving “spouse, child, or parent.” La.Civ.Code art.

2315.1(A)(3); La.Civ.Code art. 2315.2(A)(2); and Gibbs, 927 So.2d at 1139-40. See

also La.Civ.Code art. 199.

I concur with the majority’s finding that Raymond and Donna Kelly, as legal

custodians of the minor child Vera Cheyenne, enjoy no right of action arising from

the minor child’s death. Though their loss may indeed be grievous they are not

among the named beneficiaries permitted recovery in La.Civ.Code art. 2315.1 and

2315.2. I also concur with the majority’s finding that Richard Stewart, Sr. and Vera

17

Stewart are precluded from bringing either a survival or wrongful death action

arising out of Stewart Jr.’s death, for the reason that he is survived by both a spouse

and children. I further concur with the majority’s finding that the case must be

remanded as to Brandie Hardie because, as the majority finds, she is an indispensable

party who must be joined, cited, served with notice and accorded the right to be

heard. However, I disagree that a finding that Hardie abandoned her children would

entitle the Stewarts to make a claim because I believe the decedent’s surviving

children-given-in-adoption have a right to recover for the deaths of their half-

siblings and they prime any claim by the Stewarts.

I additionally concur with the majority’s finding that the Succession of

Richard Stewart, Jr. has no right to assert a wrongful death claim under the

provisions of La.Civ.Code art. 2315.2. As the majority points out, the Succession is

not one of the legislatively recognized beneficiaries permitted recovery. The

decedent enjoyed no right to this type of recovery as it speaks only to a loss suffered

by others. I also concur with the majority’s finding that the Succession of Richard

Stewart, Jr. is precluded from asserting a survival action but for the additional reason

that the surviving children-given-in-adoption, as well as the surviving spouse,

preclude the succession’s ability to make a claim.

For the reasons stated, I respectfully concur in part and dissent in part.

18

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

No. 17-809
KHRISTY GOINS RISMILLER, TUTRIX FOR DANIEL EDWARD GOINS
VERSUS
GEMINI INSURANCE COMPANY, ET AL.

CW
No. 17-811
DAVID WATTS
VERSUS
MARK GORDON, ET AL.

CW
No. 17-812
SUCCESSION OF RICHARD STEWART, JR., ET AL.
VERSUS
MARK ISIAH GORDON, ET AL.

Conery, J., concurs in part and dissents in part for reasons assigned by Judges

Savoie and Cooks and for the following additional reasons.

When James Stewart, Jr. was killed in an automobile accident, along with his

two minor children George and Vera Cheyenne Stewart, he was survived by his

wife, Lisa Stewart, and his two adult children, Daniel Goins and David Watts.1

Louisiana Civil Code Article 2315.1 and 2315.2 have been interpreted as “sui

generis” and govern the hierarchy of who may recover in a survival and wrongful

death action, respectively, against the tortfeasor defendants in this case and their

insurance carriers. See Juneau v. State Ex Rel. Department of Health and Hospitals,

15-1382 (La.App. 1 Cir. 7/7/16), 197 So.3d 398, writ denied, 16-1490 (La.

1
Daniel Goins has a tutrix, Kristi Goins Rismiller, who filed suit on his behalf in docket 17-809.
David Watts filed suit on his own behalf in docket 17-811. Daniel Goins and David Watts are the
biological children of Richard Stewart, Jr. and are the half-brothers of the minors George Stewart
and Vera Cheyenne Stewart, whose mother, Brandi Hardie, is not currently a party. Daniel and
David were adopted by others but are each claiming survival and wrongful death damages as a
result of the death of their biological father, Richard Stewart, Jr. and their biological minor half-
siblings, George and Vera Cheyenne Stewart. Richard Stewart, Sr. and his wife, Vera Stewart, are
suing for the wrongful death of their son, Richard, Jr., and their minor grandchildren, George and
Vera Cheyenne, and are joined in their suit by the Succession of Richard Stewart, Jr. in docket 17-
812. All suits have been consolidated, but the majority has issued separate opinions in each.

11/15/16), 209 So.3d 781. Both articles provide that where there is a surviving

spouse and child or children, they are the first in the hierarchy of persons entitled to

recover. See La.Civ.Code art. 2315.1 and 2315.2. There is no dispute that Lisa

Stewart, the lawful wife of James Stewart, Jr., and his two biological adult sons

Daniel Goins and David Watts, survived James Stewart, Jr.. There is nothing in the

plain wording of the civil code articles in question that would suggest that if Daniel

Goins and David Watts were adopted by another, they would no longer be “children”

or “brother” within the meaning of the two articles in question.

This case then hinges on the words in La.Civ.Code arts. 2315.1 and 2315.2,

“except as otherwise provided by law.” The majority cites La.Civ.Code art. 199 as

the law that precludes recovery by Daniel Goins and David Watts. That article

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.
(Emphasis added).
The majority reasons that because Richard Stewart Jr.’s “filiation” to Daniel

Goins and David Watts was terminated by adoption, they cannot be considered

“children” for purposes of La.Civ.Code arts. 2315.1(A) and 2315.2(A). However,

La.Civ.Code art. 199 also has the admonition “except as otherwise provided by law”.

Judges Cooks and Savoie in dissent propose that since La.Civ.Code arts. 2315.1 and

2315.2 do not in any way restrict the term “children” or “brothers,” in accordance

with U.S. Supreme Court decisions and our Louisiana Supreme Court decisions cited

in their opinions, neither should we. I agree.

2

It is settled law that recovery under La.Civ.Code arts. 2315.1 and 2315.2 is

“sui generis” and not dependent on any other statute or codal article. Those articles

do not define or limit the term “children” or “brothers.” See Juneau, 197 So.3d 398.

The legislature did not limit the recovery to exclude children who have been adopted

and half-brothers, and we should not judicially add an exception. I believe Judges

Cooks and Savoie have correctly set forth the law and appropriate result in this case

and I respectfully join their concurrences/dissents.

To the extent that this decision conflicts with the interpretation expressed by

a panel of our court in Domingue v. Carencro Nursing Home, Inc., 520 So.2d 996

(La.App. 3 Cir.), writ denied, 522 So.2d 565 (La.1988), I would offer that under our

civilian system we are not bound by a prior decision of another panel of our court,

or any other appellate court decision. Doerr v. Mobil Oil Corp., 00-947 (La.

12/19/00), 774 So.2d 119, reh'g granted on other grounds, 00–947 (La. 3/16/01),

782 So.2d 573.

As Judges Cooks and Savoie point out in their dissents, to issue a ruling

preventing adopted children from filing a wrongful death claim would appear to be

unconstitutional based on the prevailing jurisprudence cited in their opinions. We

need not and I do not reach that conclusion here. Based strictly on statutory

interpretation, La.Civ.Code arts. 2315.1 and 2315.2 do not limit the term “children”

or “brothers” in any way, and in my view include as beneficiaries Daniel Goins and

David Watts, the biological children of the decedent, Richard Stewart, Jr., who have

been adopted by others.

The case of Ledet v. State, Dep’t of Health and Human Res., 465 So.2d 98

(La.App. 4 Cir.), writ denied, 468 So.2d 1211 (La.1985), is instructive on this issue.

The court in Ledet specifically held that since biological half-brothers were not

3

excluded in the definitions of the term “brothers” in La.Civ.Code arts. 2315.1 and

2315.2, the ordinary meaning of the word “brother” would include half-brothers,

pursuant to La.Civ.Code art. 11.2 The fact that Daniel Goins and David Watts were

adopted does not mean that they are no longer the biological children of their father

as well as the biological half-brothers of the minors, George Stewart and Vera

Cheyenne Stewart.

Louisiana Civil Code Articles 2315.1 and 2315.2 use the generic word

“children” and “brothers” without exceptions, and we are not authorized to judicially

create an exception to exclude biological children or half-siblings who have been

adopted by another. See La.Civ.Code art. 9.3 It will be up to the plaintiffs to prove

the extent of their relationship with their biological father and half-siblings and the

amount of their loss, and they should be given an opportunity to do so.

I also agree with Judges Cooks and Savoie’s dissents that if, on remand,

Brandi Hardie is found to have abandoned her biological minor children, George

Stewart and Vera Cheyenne Stewart, pursuant to La.Ch.Code art. 1015(5)4, the next

in line to sue for their wrongful deaths, would be their biological half-brothers,

Daniel Goins and David Watts.

2
La.Civ.Code art. 11 provides, “[t]he words of a law must be given their generally prevailing
meaning. Words of art and technical terms must be given their technical meaning when the law
involves a technical matter.”
3
Louisiana Civil Code Article 9 states, “[w]hen 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.”
4
According to La.Ch.Code art. 1015(5), “[t]he grounds for termination of parental rights are:
(5) Abandonment of the child by placing him in the physical custody of a nonparent, or the
department, or by otherwise leaving him under circumstances demonstrating an intention to
permanently avoid parental responsibility by any of the following:
(a) For a period of at least four months as of the time of the hearing, despite a
diligent search, the whereabouts of the child's parent continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant
contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant
contact with the child by visiting him or communicating with him for any period of six
consecutive months.”
4

The majority and the dissents all recognize that if either case disposition

becomes final, there are some who may have had closer relations with the deceased

than those lawfully allowed to recover. We understand their loss but are duty bound

to apply the law as written. The hierarchy of beneficiaries allowed to recover is

plainly written and should be applied as written. Blanchard v. Tinsman, 83-451

(La.App. 3 Cir. 2/1/1984) 445 So.2d 149, writ denied, 448 So.2d 113 (La.1984).

5

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

17-812 c/w 17-809 c/w 17-811

SUCCESSION OF RICHARD STEWART, JR., ET. AL.

VERSUS

MARK ISAIAH GORDON, ET. AL.

SAVOIE, J., concurs in part, dissents in part, and assigns the following reasons:

I agree with the majority’s conclusion that the trial court erred in denying the

Defendants’ exceptions as to (1) the wrongful death and survival actions filed by the

Kelly’s and (2) to the Succession’s wrongful death actions. However, I disagree

with the analysis and/or the conclusions with respect to the remainder of the

majority’s opinon as follows:

Claims Asserted by the Stewarts

A. Wrongful Death and Survival Action Arising out of Mr. Stewart’s Death

I disagree with the majority’s conclusion that Mr. Goins and Mr. Watts, who

are Mr. Stewart’s biological children, do not have a right to assert survival and

wrongful death actions arising out of their father’s death because they were given up

for adoption. Rather, for the following reasons, I would find that they are “children

of the deceased,” as contemplated by the code articles at issue, and, as a result, have

a right to assert a wrongful death and survival action arising out of their father’s

death.

The Louisiana Civil Code is instructive on the interpretation of laws. “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.” La.Civ.Code art. 9. “The words

of a law must be given their generally prevailing meaning.” La.Civ.Code art. 11

(emphasis added). “Laws on the same subject matter must be interpreted in

reference to each other.” La.Civ.Code. art. 13.

Therefore, the first consideration in interpreting La.Civ.Code arts.

2315.1(A)(1) and 2315.2(A)(1) is the language of the code articles themselves.

Specifically at issue is the phrase “child or children of the deceased” used therein.

A common, or generally prevailing meaning, of this phrase would clearly be a

deceased’s biological child or children. See Hunt v. New Orleans Ry. & Light Co.,

73 So. 667 (La.1916). See also, Jenkins v. Mangano, 00-790, p. 3 (La. 11/28/00),

774 So.2d 101, 103, where the Louisiana Supreme Court recognized “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.Civ.Code arts. 2315.1 and 2315.2 include a paragraph that expressly expands the

term “child or children of the deceased” to include non-biological children that the

deceased adopted, there is no language in the code articles that narrows the term to

exclude a deceased’s biological children by reason of adoption or otherwise.

The next consideration is whether there are any laws on the same subject

matter that are helpful in interpreting the articles’ use of the phrase “children of the

deceased” that would to lead to the exclusion of a deceased’s biological children

given up for adoption from that definition.

Defendants-Applicants refer to La.Civ.Code art. 199, which states that:

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.Civ.Code art.

178. Defendants-Applicants suggest that, because Mr. Goins’ and Mr. Watts’

filiation to Mr. Stewart was terminated by virtue of their adoption, they should not

2

be considered “children of Mr. Stewart” for purposes of the wrongful death and

surivial code articles. I disagree.

There is no indication within the language of La.Civ.Code arts. 2315.1 and

2315.2 that one must be filiated to the deceased to be considered a “child or children

of the deceased.” Rather, those code 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. If 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 include the

deceased’s adopted child, would have no independent meaning.

In addition, the Louisiana Supreme Court has recognized that the code articles

governing survival and wrongful death actions are sui generis and that it is improper

to look beyond the language of the code articles when interpreting their meaning.

Specifically, the supreme court stated in Levy v. State Through Charity Hosp.

of La., 216 So.2d 818, 819 (La.1968) (emphasis added):1

That these rights are wholly the creatures of the Legislature is
recognized historically and jurisprudentially. The statute to this extent
is sui generis and is not a law of marriage, of parent and child, or of
inheritance, nor does it conform to the civil law concepts. Vaughan
v. Dalton-Lard Lumber Co., 119 La. 61 [La.1907], 43 So. 926. It is
special legislation providing for the survival of a right of action in favor
of named classes of survivors and also creating a cause of action in
favor of those same classes of persons for wrongful death. Walton v.
Booth, 34 La.Ann. 913 [(La.1882)].

Levy, therefore, suggests that there is no reason to look beyond the language of the

survival and wrongful death code articles in interpreting “children of the deceased.”

1
At issue in Levy was whether the deceased’s illegitimate children were children with a right
to assert wrongful death and survival claims. In Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509
(1968), the United States Supreme Court, referring to equal protection concepts, reversed the
Louisiana courts’ interpretation that a deceased’s “child,” as that term was utilized by then-
applicable La.Civ.Code art. 2315, did not include a deceased’s illegitimate children. Thereafter,
the Louisiana Supreme Court rendered an opinion in accordance with the United States Supreme
Court’s decision. Levy, 216 So.2d 818.

3

Since the articles do not refer to filiation concepts to exclude those who are otherwise

named as having rights of action, filiation is irrelevant to the analysis.

Similarly, in Hunt v. New Orleans Ry. & Light Co., 73 So. 667, the Louisiana

Supreme Court declined to apply the definition of children set forth in the civil

code’s general definitions article2 when interpreting the applicable survival action

article’s use of the term “children.”3 The Hunt court concluded that the ordinary

meaning of the term “children,” that is, descendants in the first degree, was

applicable to the survival action article, stating:

We may add to the foregoing that, as we understand the matter,
it is only when the word ‘children,’ as used in the Civil Code, is not
particularly defined, or does not, when construed with reference to the
body of the law and to the immediate connection in which it is used,
convey another meaning (in which case it requires no definition), that
the definition given in article 3556 may be invoked.

....

Our conclusion is that the word ‘children,’ whether as used in the
Civil Code or elsewhere, ordinarily applies to a distinct class of persons
. . . , and as used in the Code, that the word is to be so construed, with
reference to the body of that law and to the immediate connection in
which it is used, to give it the meaning plainly intended, rather than
such a meaning as might be deduced by proceeding upon the theory that
the only part of the Code to be considered is the definition contained in
art. 3556.

Id. at 668.4

2
Louisiana Civil Code Article 3556 was the general definitions article at issue in Hunt, and
it is a predecessor to the current general definitions article, La.Civ.Code art. 3506. Louisiana Civil
Code article 3506 currently states:

Whenever the terms of law, employed in this Code, have not been
particularly defined therein, they shall be understood as follows:
....
(8) 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.
3
At the time of Hunt, La.Civ.Code. article 2315 provided the “minor children or widow of
the deceased, or either of them,” with a right of action arising out of the deceased’s death.
4
At issue in Hunt, was whether a deceased’s grandchildren had a right of action to assert
wrongful death and survival claims.
4

It is also noteworthy that limiting the interpretation of those who have rights

to assert wrongful death and survival actions to the express language of the code

articles themselves would not necessarily result in providing a parent, who gave a

biological child up for adoption, with a valid right or cause of action arising out of

that child’s death. The code articles adequately address those circumstances by

providing: “[A] father or mother who has abandoned the deceased during his

minority is deemed not to have survived him.” La.Civ.Code. arts. 2315.1(E) and

2315.2 (E).

Defendants-Applicants rely on Simmons v. Brooks, 342 So.2d 236 (La.App. 4

Cir. 1977), in suggesting that a parent’s biological children who were given up for

adoption do not have a right to assert wrongful death and/or survival actions arising

out of their biological parent’s death. In Simmons, Id. at 237, the appellate court

found no such right of action stating: “[La.Civ.Code art.] 2315 cannot be isolated

from other sections of the Revised Civil Code in interpreting its meaning. . . .

Therefore, we consider the effect of [La.Civ.Code art.] 214, which deals with the

rights of an adopted child, on the provisions of LSA-R.C.C. Article 2315.”

At the time of Simmons, La.Civ.Code art. 214 stated that “the adopted person

and his lawful descendants are relieved of all of their legal duties and [d]ivested of

all their legal rights with regard to the blood parent or parents and other blood

relatives, [e]xcept the right of inheritance from them.” See Simmons, 342 So.2d at

237. The Simmons court went on to find that survival and wrongful death actions

were not inheritance rights, and therefore, upon adoption, the children were divested

of any right to assert wrongful death and survival actions.

I disagree with Simmons as its analysis is based on its conclusion that the

survival and wrongful death code articles cannot be isolated from other provisions

of the code. This analysis is inconsistent with the Louisiana Supreme Court’s

5

indication in Levy, 216 So.2d 818, that the wrongful death and survival code

article(s) are sui generis.

The Defendants-Applicants, and the majority herein, also rely on Domingue

v. Carencro Nursing Home, Inc., 520 So.2d 996 (La.App. 3 Cir. 1987), writ denied,

522 So.2d 565 (La.1988), wherein this court found that a deceased’s child given up

by adoption had no right of action to assert a wrongful death or survival claim. The

Domingue court reasoned:

We agree with the defendants’ argument [that] Simmons, 342
So.2d 236, involved facts virtually identical to the case at hand. . . . The
court stated that Article 2315 must be read in conjunction with other
sections of the Civil Code in order to assist in its interpretation. The
court then looked to La.C.C. art. 214[.]

Id. at 997. However, given my conclusion that Simmons, 342 So.2d 236, is

inconsistent with Levy, 216 So.2d 818, I would also decline to follow Domingue,

520 So.2d 996, inasmuch as it relied on Simmons.

The Domingue court also found relevant to its analysis that the article

governing wrongful death and survival actions prior to its amendment in 1960

recognized that the term children included adopted children and children given in

the adoption, but that following the 1960 amendment, the language “given in

adoption” was removed. However, I disagree with the Domingue court’s suggestion

that the 1960 amendment’s omission of “given in adoption” was an indication that

those children were meant to be excluded from the definition of “children of the

deceased.”

Prior to the 1960 amendment, La.Civ.Code art. 2315 stated (emphasis added):

Every act whatever of man that causes damage to another obliges
him by whose fault it happened to repair it; the right of his action shall
survive in case of death in favor of the children, including adopted
children and children given in adoption, or spouse of the deceased,
or either of them, and in default of these in favor of the surviving father
and mother or either of them, and in default of any of the above persons,
then in favor of the surviving blood brothers and sisters, or either of
them, for the space of one year from the death. However, should the
deceased leave a surviving spouse, together with minor children, the

6

right of action shall accrue to both the surviving spouse and the minor
children. The right of action shall accrue to the major children only in
those cases where there is no surviving spouse or minor child or
children.

If the above right of action exists in favor of an adopted person,
it shall survive in case of death in favor of the children or spouse of the
deceased, or either of them, and in default of these in favor of the
surviving adoptive parents, or either of them, for the space of one year
from the death. However, this right of action shall survive in favor of
the blood parent or parents to the exclusion of the adoptive parent or
parents when at the time of the adoption the adopted was a major, or
emancipated minor whose adoption was effected without the consent
of the blood parent or parents evidenced in the act of adoption. In
default of these, it shall survive in favor of the surviving blood brothers
and sisters of the adopted person, or either of them, for the space of one
year from the death.

The survivors above mentioned may also recover the damages
sustained by them by the death of the parent or child or husband or wife
or brothers or sisters or adoptive parent, or parents, or adopted person,
as the case may be.

See 1948 Acts, No. 333.

The 1960 amendment to La.Civ.Code art. 2315 revised the article to state:

Art. 2315. Every act whatever of man that causes damage to
another obliges him by whose fault it happened to repair it.

The right to recover damages to property caused by an offense or
quasi offense is a property right which, on the death of the obligee, is
inherited by his legal, instituted, or irregular heirs, subject to the
community rights of the surviving spouse.

The right to recover all other damages caused by an offense or
quasi offense, if the injured person dies, 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 such spouse or
such child or children; (2) the surviving father and mother of the
deceased, or either of them, if he left no spouse or child surviving; and
(3) the surviving brothers and sisters of the deceased, or any of them, if
he left no spouse, child, or parent surviving. The survivors in whose
favor this right of action survives may also recover the damages which
they sustained through the wrongful death of the deceased. A right to
recover damages under the provisions of this paragraph is a property
right which, on the death of the survivor in whose favor the right of
action survived, is inherited by his legal, instituted, or irregular heirs,
whether suit has been instituted thereon by the survivor or not.

As used in this article, the words ‘child’, ‘brother’, ‘sister’,
‘father’, and ‘mother’ include a child, brother, sister, father and mother,
by adoption, respectively.

7

1960 Acts, No. 30, §1.

A Louisiana Law Review article following the 1960 amendment, which

discusses the purpose of the 1960 amendment, suggests that the revisions to the

language defining the classes of beneficiaries who have rights to assert wrongful

death claims were intended to simplify the description of those classes, rather than

substantively change them:

Article 2315 was amended at the last session of the legislature so
as to effect one important change and also to simplify and make
clearer the classes of persons designated as claimants or
beneficiaries. Formerly, the death of a beneficiary of a wrongful death
claim prior to final judgment served to extinguish the claim completely.
The right of the beneficiary is by the amendment designated a “property
right, which, on the death of the survivor in whose favor the right of
action survived, is inherited by his legal, instituted, or irregular heirs,
whether suit has been instituted thereon by the survivor or not.

Wex S. Malone, Torts, 21 La.L.Rev. 78, 81-82 (1960) (emphasis added). As

suggested by this article, the only substantive change to the law was the extension

of a beneficiary’s right to assert a wrongful death claim to certain heirs upon the

beneficiary’s death.

Therefore, it is my opinion that the 1960 amendment to La.Civ.Code art. 2315

did not eliminate the right of a child given in adoption to assert a claim arising out

of his biological parent’s death; rather, it simplified the pre-amendment phrase “the

right of his action shall survive in case of death in favor of the children, including

adopted children and children given in adoption, or spouse of the deceased, or either

of them” by (1) replacing it with “child or children of the deceased,” which

necessarily includes a biological child given in adoption, and (2) adding a paragraph

that expands the term “child” to include a child that the deceased adopted.

Similarly, I would decline to follow Hernandez v. State, DOTD, 02-162, 02-

163 (La.App. 4 Cir. 10/16/02), 841 So.2d 808, writs denied, 03-261, 03-307 (La.

4/25/03), 842 So.2d 399, which is relied upon by the Defendants-Applicants and the

8

majority. In Hernandez, the deceased’s biological daughter filed a wrongful death

and survival action arising out the deceased’s death. At the age of eighteen, the

daughter, along with her great aunt, executed a Notarial Act, whereby the aunt

adopted the daughter. In recognizing that the adopted daughter had no right of

action, the Hernandez court cited to Simmons, 342 So.2d. 236, and Domingue, 520

So.2d 996. Because I disagree with Simmons and Domingue on this issue, I also

disagree with Hernandez in this regard.5

The majority also concludes that the Stewarts have no right of action under

La.Civ.Code arts. 2315.1 and 2315.2 arising out Mr. Stewart’s death because Mr.

Stewart’s wife is still alive. I agree with the majority in that respect.

In sum, as to the Stewarts’ survival and wrongful death claims arising out of

Mr. Stewart’s death, I concur with the majority’s conclusion that the trial court erred

in denying Defendants’ exceptions as to their claims. However, I would find that

their claims are precluded by Mr. Stewart’s biological children, Mr. Watts and Mr.

Goins, as well as Mr. Stewart’s wife.

B. The Stewarts’ Wrongful Death and Survivial Action Arising out of their

Grandchildren’s Deaths.

I agree with the majority’s conclusion to remand this matter for the children’s

mother, Brandie Hardie, to be added as an indispensable party for determination of

whether she had abandoned the children as contemplated by La.Civ.Code. arts.

2315.1(E). However, in the event she is found to have abandoned the deceased’s

children, I would find that Mr. Goins and Mr. Watts, as biological half-siblings of

the deceased children, would have the right to assert a wrongful death and survival

action arising out of the children’s deaths, to the exclusion of the Stewarts. See Ledet

v. State, Dep’t of Health and Human Res., 465 So.2d 98 (La.App. 4 Cir.), writ

5
Primarily at issue in Hernandez, 841 So.2d 808, was whether a declaratory judgment,
which was obtained by the daughter after the wrongful death action was initiated, and which
nullified the adoption, had any effect on the daughter’s right of action.
9

denied, 468 So.2d 1211 (La.1985); and Gibbs v. Delatte, 05-821 (La.App. 1 Cir.

12/22/05), 927 So.2d 1131, writ denied, 06-198 (La. 4/24/06), 926 So.2d 548.

Therefore, I would find that the trial court erred in denying Defendants’ exceptions

as to the Stewarts’ survival and wrongful death claims arising out of their

grandchildren’s deaths.

The Succession’s Survival Action

I concur with the majority’s conclusion that the trial court erred in denying

Defendants’ exceptions as to the Succession’s survival actions arising out of Mr.

Stewart’s and the children’s deaths. However, in my opinion, Mr. Watts and Mr.

Goins, who are Mr. Stewart’s children, have a right to assert a survival action arising

out of Mr. Stewart’s death, thereby precluding the Succession’s claim. Moreover,

in the event the trial court concludes on remand that Brandie Hardie abandoned the

deceased children, it is my opinion that Mr. Goins and Mr. Watts, as siblings of the

deceased children, have a right to assert a survival action arising out of the children’s

deaths.

Conclusion

In sum, I concur with the majority’s conclusion to grant Defendants’

exceptions as to the Stewarts’ survival and wrongful death actions arising out of Mr.

Stewart’s death. However, I would find that Mr. Watts and Mr. Goins have a right

to assert these claims.

I disagree with the majority’s conclusion to deny the exceptions as to the

Stewarts’ claims arising out the minor children’s deaths. In my opinion, these claims

are precluded by Mr. Watts and Mr. Goins in the event that the children’s mother,

Ms. Hardie, is deemed on remand to have abandoned the children. Therefore, I

would grant Defendants’ exceptions in this regard.

I further concur in the majority’s conclusion to grant Defendants’ exceptions

related to the Succession’s survival action. However, I would find that Mr. Watts

10

and Mr. Goins have a right to assert a survival action arising out Mr. Stewart’s death.

They also have a right to assert a survival action arising out of the children’s death

in the event Ms. Hardie is deemed on remand to have abandoned the children.

11