Rismiller v. Gemini Ins. Co.

• Decision Date: 03 October 2018
• Docket Number: 17-809
• Parties: Khristy Goins RISMILLER, Tutrix for Daniel Edwards Goins v. GEMINI INSURANCE COMPANY, et al.
• Court: Court of Appeal of Louisiana — District of US

316 So.3d 1178 (Mem)

Khristy Goins RISMILLER, Tutrix for Daniel Edwards Goins
v.
GEMINI INSURANCE COMPANY, et al.

17-809

Court of Appeal of Louisiana, Third Circuit.

October 3, 2018

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 Ave, 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, Building C, Suite B, Baton Rouge, LA 70808, (225) 610-1110, COUNSEL FOR DEFENDANT/RESPONDENT: Gemini Insurance Company

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.

GREMILLION, Judge.

316 So.3d 1179

This consolidated matter arises out of a tragic auto accident that occurred on October 1, 2015, on U.S. Highway 84 in Concordia Parish.¹ 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 Richard Stewart, Jr. 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 his death: 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, Stewart's uncle and aunt. Watts was adopted by his maternal grandparents, Mary and Jimmy Watts. At the 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 of Goins and Watts.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, [88 S.Ct. 1509, 20 L.Ed.2d 436] (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 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 were allowed

316 So.3d 1180

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 involves the trial court's denial of Defendants' exception of no right of action pertaining to the claims asserted on behalf of Goins, Stewart's biological son, who was given up for adoption as a minor and who is a biological half-sibling of the deceased minor children.⁴

For the reasons set forth in Succession of Richard Stewart, Jr. et al. vs. Gordon, et al. , 17-812 (La.App. 3 Cir. 10/3/18), 316 So.3d 1052, we find the trial court erred in denying Defendants' exceptions of no right of action as to Goins' survival and wrongful death claims due to the death of his biological father and half-siblings. Costs of these proceedings are assessed to Khristy Goins Rismiller, Tutrix for Daniel Edward Goins.

WRIT GRANTED AND MADE PEREMPTORY; EXCEPTIONS OF NO RIGHT OF ACTION GRANTED.

Cooks, J., dissents and would deny the writ.

Savoie, J., dissents for the reasons expressed by Judge Cooks, and for...