Rismiller v. Gemini Ins. Co.
| Decision Date | 30 June 2021 |
| Docket Number | No. 2020-CA-00313,2020-CA-00313 |
| Citation | 330 So.3d 145 |
| Parties | Khristy Goins RISMILLER, Tutrix for Daniel Edward Goins v. GEMINI INSURANCE COMPANY, Mark Isiah Gordon and Keith Boone Trucking, LLC David Watts v. Mark Gordon, Kenneth Boone dba Boone Trucking, Keith Boone Trucking and Gemini Insurance Company Sheila Smith v. Gemini Insurance Company, Kenneth Chad Boone d/b/a Boone Trucking, and Mark Gordon Succession of Richard Stewart, Jr., Raymond Kelly, Donna Kelly, Richard Stewart, Sr. and Vera Anita Stewart v. Mark Isiah Gordon, Kenneth Boone, Keith Boone Trucking, LLC and Gemini Insurance Company |
| Court | Louisiana Supreme Court |
The case is before this court on rehearing on request of defendant Gemini Insurance Company. At issue is the holding in this court's original opinion that, "based on the clear and unambiguous wording of La. C.C. arts. 2315.1 and 2315.2," two adult children (Daniel Goins and David Watts) who were given in adoption as minors "are ‘children of the deceased’ and ‘brothers of the deceased’ who are permitted to bring wrongful death and survival actions arising from the death of their biological father and half-siblings." Rismiller v. Gemini Insurance Co. , 20-0313, p. 2 (La. 12/11/20), ––– So.3d ––––. Based on this finding, the majority of this court affirmed the district court's overruling of the defendant's peremptory exception raising the objection of no right of action and remanded the matter to the district court for further proceedings. I d ., 20-0313 at 11, ––– So.3d at ––––. Defendant's application for rehearing was granted to reconsider the correctness of this holding.
As stated in the dissent to the court's original opinion, a determination of whether children given in adoption have a right to bring wrongful death and survival actions in connection with the deaths of a biological parent and half-sibling "requires an intricate civilian analysis of multiple provisions of the Louisiana Civil Code." Rismiller , 20-0313 at 1, ––– So.3d at –––– (Weimer, J., dissenting). "The codal question here is whether the plaintiffs are ‘children’ for purposes of a right to bring a wrongful death and survival action under La. C.C. arts. 2315.1 and 2315.2." Id ., 20-0313 at 3, ––– So.3d at –––– (Weimer, J., dissenting). The resolution of this issue requires "an examination of how adoption affects the construction" of La. C.C. arts. 2315.1 and 2315.2 ; therefore, consideration must be given to La. C.C. art. 199, which "speaks directly to the effects of adoption."1 Id ., 20-0313 at 12 & 17, ––– So.3d at –––– & –––– (Weimer, J., dissenting).
Because an interpretation of the relevant codal provisions was thoroughly discussed in the dissenting opinion, an in-depth discussion of the codal issues will not be duplicated herein. See Rismiller , 20-0313 at 3-12, ––– So.3d at –––– (Weimer, J., dissenting). Rather, after further evaluation and analysis,2 the dissent is adopted as the opinion of the court, which is briefly summarized below.
"The fundamental question in all cases of [codal] construction is legislative intent and the reasons that prompted the legislature to enact the law." I d ., 20-0313 at 3, ––– So.3d at –––– (quoting SWAT 24 Shreveport Bossier, Inc. v. Bond , 00-1695, p. 11 (La. 6/29/01), 808 So.2d 294, 302 ). "The analysis begins, as it must, with the codal text"– La. C.C. arts. 2315.1, 2315.2, and 199. Id . (citing SWAT 24 Shreveport Bossier, Inc. , 00-1695 at 12, 808 So.2d at 302 ).
The law governing survival and wrongful death actions provides for "a distinct right of action, in favor of certain classes of persons." See Vaughan v. Dalton-Lard Lumber Co. , 119 La. 61, 64, 43 So. 926, 927 (1907), overruled on other grounds by King v. Cancienne , 316 So. 2d 366 (La. 1975) ; Levy v. State Through Charity Hospital of Louisiana , 253 La. 73, 77, 216 So.2d 818, 819 (1968) ; see also Watkins v. Exxon Mobil Corp. , 13-1545 (La. 5/7/14), 145 So.3d 237, 240. "[T]he rights of action for wrongful death and survival actions are conferred only upon the persons the legislature has specifically included in the lists of eligible claimants" contained in the governing code article(s)–formerly La. C.C. art. 2315 (1870) and now La. C.C. arts. 2315.1 and 2315.2 (1986). Rismiller , 20-0313 at 9, ––– So.3d –––– (Weimer, J., dissenting). "Those not included [in the lists of eligible claimants] are excluded, and the article[(s)] cannot be construed to confer the right upon persons not expressly mentioned in it." Vaughan , 119 La. at 64, 43 So. at 927.
Adoption was not incorporated into La. C.C. art. 2315 (1870) until 1932, when the list of eligible claimants was expanded to included "adopted children." See Rismiller , 20-0313 at 5, ––– So.3d at –––– (Weimer, J., dissenting) (citing 1932 La. Acts 159, § 1). The legislature's introduction of adopted children into the list of eligible claimants requires that the effects of adoption addressed in La. C.C. art. 199 be considered. See id ., 20-0313 at 12, ––– So.3d at –––– (Weimer, J., dissenting). The term "adopted children" refers to children who have been added to a parental relationship–a relationship with the adoptive parents owing manifold duties to those children. Id ., 20-0313 at 6, ––– So.3d at –––– (Weimer, J., dissenting) (citing La. C.C. art. 199 ). Not until 1948 was the list of eligible claimants expanded to include "children given in adoption." See id . (citing 1948 La. Acts 333, § 1). The term "children given in adoption" refers to the transfer of children out of one parental relationship into a different and new parental relationship. See id ., 20-0313 at 17, ––– So.3d at –––– (Weimer, J., dissenting) (citing La. C.C. art. 199 ). Accordingly, after the 1948 amendment to La. C.C. art. 2315, the list of eligible claimants "included both ‘adopted children and children given in adoption.’ " See id ., 20-0313 at 6, ––– So.3d at –––– (Weimer, J., dissenting).
In the 1960 rewrite of La. C.C. art. 2315, the legislature defined "the words ‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’ " to "include a child, brother, sister, father and mother by adoption, respectively." Id . (citing 1960 La. Acts 30, § 1 (emphasis added)). "[C]hildren ‘by adoption,’ a term like ‘adopted children,’ ... refers to children who have been added to a parental relationship–a relationship with the adoptive parents owing manifold duties to those children." Id . (citing La. C.C. art. 199 ). Pursuant to the 1960 amendment, the list of eligible claimants no longer included "children given in adoption." Id . (citing La. C.C. art. 199 ). As stated in the dissent to this court's original opinion:
The legislature's [1960] removal of "children given in adoption" from the lists of eligible claimants for wrongful death and survival actions is the clearest indicator of the legislature's intent. The legislature's [1948] authorization of "children given in adoption" as claimants existed for significant period of time ([until] 1960), which indicates both a realization of the reach of that language and an understanding of the consequences when the legislature chose to remove "children given in adoption" as eligible claimants. In the years following the removal of "children given in adoption," the legislature has not expanded the lists of eligible claimants by returning "children given in adoption" to the lists presently found in La. C.C. arts. 2315.1 and 2315.2. It is not the role of this court to re-insert language into codal enactments the legislature expressly and specifically removed.
Rismiller , 20-0313 at 17-18, ––– So.3d at –––– (Weimer, J., dissenting). Because children given in adoption are currently not included in the lists of eligible claimants, they are excluded. See Vaughan , 119 La. at 64, 43 So. at 927.
In summary, as a result of their adoption, in which "the adopting parent becomes the parent of the child for all purposes" and the previous "filiation between the child and his legal parent is terminated" ( La. C.C. art. 199 ), and the plain text of La. C.C. arts. 2315.1 an 2315.2, the plaintiffs have no right to assert a survival and wrongful death action in connection with the death of their biological father and half-siblings.3 Any relevant legal relationship between the children given in adoption and the biological relatives whose deaths are the subject of these tort cases has been terminated. In our civil law system, this court simply cannot reinsert codal language related to children given in adoption that has been specifically removed by the legislature.
Furthermore, the evolution of the Louisiana Civil Code's definition of "children" casts doubt on the majority's finding, on original hearing, that interpreting "the term ‘children’ in La. C.C. arts. 2315.1 and 2315.2 to include biological children given in adoption is entirely consistent with the definition of children found in La. C.C. art. 3506." See La. C.C. art. 3556(8) (1870), La. C.C. art. 3506(8) (2004) ; Rismiller , 20-0313 at 10, ––– So.3d at –––– (footnote omitted). Article 3556(8) (1870) provided:
In that definition, no mention is made of children who had been adopted or children given in adoption. On the other hand, the sui generis law governing survival and wrongful death actions was amended to afford "adopted children" (in 1932) and "children given in adoption" (in 1948) the right to bring such an action. Had children who had been adopted or children given in adoption possessed the right to bring such an action by virtue of the definition of "children" in La. C.C. art. 3556(8) (1870), there would have been no need for the addition of those individuals to the list of eligible claimants in La. C.C. art. 2315 (1870).
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