Watkins v. Exxon Mobil Corp.

• Decision Date: 29 May 2013
• Docket Number: No. 2012–C–0477.,2012–C–0477.
• Citation: 117 So.3d 548
• Parties: Patricia WATKINS v. EXXON MOBIL CORPORATION.
• Court: Court of Appeal of Louisiana — District of US

117 So.3d 548

Patricia WATKINS

v.EXXON MOBIL CORPORATION.

No. 2012–C–0477.

Court of Appeal of Louisiana,Fourth Circuit.

May 29, 2013.

Jeremiah A. Sprague, Timothy J. Falcon, Falcon Law Firm, Marrero, LA, Frank M. Buck, Jr., New Orleans, LA, for Plaintiff/Relator.

Martin A. Stern, Raymond P. Ward, Valeria M. Sercovich, Glen M. Pilié, Adams and Reese LLP, Richard S. Pabst, Michael R. Phillips, Louis M. Grossman, Julie Parelman Silbert, Brittany L. Buckley, Kean Miller LLP, Molly Steele, Barbara Bossetta, Edward L. Fenasci, Curry & Friend, PLC, Ronald A. Johnson, Bettye A. Barrios, Gavin H. Guillot, Johnson Johnson Barrios & Yacoubian, Chadwick J. Mollere, S. Suzanne Mahoney, Nichole M. Gray, Johnson Gray McNamara, LLC, Roy J. Rodney, Jr., Rodney & Etter, LLC, New Orleans, LA, Mary S. Johnson, Jill T. Losch, Johnson Gray McNamara, LLC, Mandeville, LA, Thomas M. McNamara, Johnson Gray McNamara, LLC, Lafayette, LA, for Defendants/Respondents.

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).

PAUL A. BONIN, Judge.

[4 Cir. 1]We granted a writ of certiorari to consider Patricia Watkins' challenges to the correctness of the trial court's granting of the oil company defendants' ¹ peremptory exceptions of peremption and of no cause of action. The defendants argued and the trial court found that Ms. Watkins' survival action was extinguished because it was perempted and that she has no cause of action for exemplary damages in connection with either her wrongful death or her survival action claims. After a de novo review of the legal issues presented, we conclude that the one-year period to bring a survival action under La. Civil Code art. 2315.1 is a prescriptive period and not a peremptive period.

After our de novo review of the ruling on the no cause of action respecting exemplary damages, we conclude that with respect to Ms. Watkins' claim for such damages arising in connection with her wrongful death claim the trial ruling is correct, but that with respect to her claim in connection with her survival action, [4 Cir. 2]she should be permitted to amend her petition under La. C.C.P. art. 934 to state a cause of action.

Accordingly, we vacate that portion of the judgment ² which sustained the exception of peremption on her survival action claim, we amend the portion of the judgment ³ sustaining the exception of no cause of action respecting the survival action to permit Ms. Watkins on remand to amend her petition, and, as amended, affirm the portion of the judgment sustaining the exception of no cause of action. We remand the matter with an instruction to the trial court. We explain our decision in greater detail in the following Parts.

I

James Hicks, the father of Ms. Watkins, died on December 27, 1986. On June 17, 2011, she filed a survival action under La. Civil Code art. 2315.1 and a wrongful death action under La. Civil Code art. 2315.2. She also demanded exemplary damages under formerLa. Civil Code art. 2315.3⁴ in connection with her claims which are based on Mr. Hicks' alleged exposure to naturally occurring [4 Cir. 3]radioactive material (NORM) ⁵ while he was cleaning scale out of pipes used in the production of oil.

In response to Ms. Watkins' petition, the oil company defendants filed, among other exceptions, a peremptory exception of peremption against Ms. Watkins' survival action and a peremptory exception of no cause of action against her claim for exemplary damages. As already noted, the trial court granted both exceptions.

II

In this Part we explain why the one-year period for bringing a survival action is prescriptive and not peremptive.

A

The right to recover for an injury to a person caused by an offense or quasi-offense who dies “shall survive for a period of one year from the death of the deceased.” La. Civil Code art. 2315.1 A. Ms. Watkins acknowledges that her lawsuit was not filed within the one-year period, but asserts that her suit is nonetheless timely despite the expiration of more than one year from the death of her father until her suit was filed by application of the principle contra non valentem. The oil company defendants, however, argue that the principle cannot be applied because the one-year period is peremptive. See State Through Div. of Admin. v. McInnis Bros. Const., 97–0742, p. 3 (La.10/21/97), 701 So.2d 937, 939[4 Cir. 4]“One type of suspension which may apply to a prescriptive period but which, by its very nature, does not apply to a peremptive period, is the doctrine of contra non valentem agere nulla currit praescriptio.”).

Ms. Watkins replies that although jurisprudence predating the 1986 amendment to the Civil Code did hold that the delay for bringing a survival action is peremptive, the 1986 amendment adding Article 2315.1⁶ classifies the delay for bringing an action as a “prescriptive period” and that the change in the Article expresses the legislature's intent to change the delay from a peremptive to a prescriptive period. The specific language in the 1986 amendmentrelied upon by Ms. Watkins is currently found in La. Civil Code art. 2315.1 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.” (emphasis added)

B

“Peremption is a period of time fixed by law for the existence of a right.” La. Civil Code art. 3458. “Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” Id. The most notable, and here dispositive, difference between prescription and peremption is that “liberative prescription merely prevents the enforcement of a right by action, it does not terminate the natural obligation; peremption, however, destroys or extinguishes the right itself.” Borel v. Young, 07–0419, p. 9 (La.11/27/07), 989 So.2d 42, 49.

[4 Cir. 5]Peremption is a construct of Louisiana jurisprudence that did not appear in the Civil Code until January 1, 1983, when it was added as La. Civil Code art. 3458 by Acts 1982, No. 187, § 1. See Needom v. Robein, 08–0318, p. 10 (La.App. 4 Cir. 2/18/09), 7 So.3d 30, 36. But the addition of Article 3458 did not change pre-existing law; it did, however, codify the existing jurisprudence. SeeLa. Civil Code art. 3458 cmt. (a). The jurisprudential standard can be found in cases dating back to Guillory v. Avoyelles Ry. Co., 104 La. 11, 15, 28 So. 899, 901 (1900):

When a statute creates a right of action, and stipulates the delay within which that right is to be executed, the delay thus fixed is not, properly speaking, one of prescription, but it is one of peremption. Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to say, after the limit of time expires the cause of action no longer exists; it is lost.

Thus, as a general proposition, solely under a Guillory analysis, when the codal article by which the right of action is created also stipulates the delay within which the right is to be exercised is fixed, the delay would be peremptive and not prescriptive.

Notably, survival and wrongful death actions are “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.” Levy v. State Through Charity Hosp. of Louisiana at New Orleans Bd. of Adm'rs, 253 La. 73, 77, 216 So.2d 818, 819 (La.1968). “That these rights are wholly the creatures of the Legislature is recognized historically and jurisprudentially.” Id. Because the right would not exist absent the legislation, Article 2315.1 creates a right of action. Article 2315.1 also stipulates that the right is to be exercised in one year.

[4 Cir. 6]But Guillory does not set forth the complete analysis. See Pounds v. Schori, 377 So.2d 1195, 1199–1200 (La.1979) (“We agree that each case of this nature should be considered on its merits, bearing in mind that the main consideration is the purpose sought to be achieved by the particular limitation period involved”); see also Guidry v. Theriot, 377 So.2d 319, 325 (La.1979)⁷ (stating that in Pounds the supreme court “held that peremption,as differentiated from prescription, is a matter to be determined by legislative intent revealed by the statute in its entirety, including the purpose sought to be achieved.”). In determining whether the fixed period is prescriptive or peremptive, additional inquiries should be made: first, whether the statute designates itself as prescriptive or peremptive and, second, whether the statute's purpose as a whole would be fulfilled by interpreting it as prescriptive or peremptive. See McInnis Bros. Const., 97–0742, pp. 5–7, 701 So.2d at 941–942;see also Guidry v. Theriot, 377 So.2d at 325.

Because the Civil Code in many situations remains silent as to whether a particular time limitation is prescriptive or peremptive, in order to determine whether a limitation is prescriptive or peremptive the courts necessarily “resort[ ] to an exploration of the legislative intent and public policy underlying a particular time limitation, for it is primarily whether the Legislature intended a particular time period to be prescriptive or peremptive that is the deciding factor.” Borel, 07–0419, p. 9, 989 So.2d at 49. “Thus, courts look to the language of the statute, the purpose behind the statute, and the public policy mitigating for or against suspension, interruption or renunciation of that time limit.” Id. And, most [4 Cir. 7]importantly for our purposes here, “[w]hat a legislature says in the text of a statute is considered the best evidence of the legislative intent or will.” Id.

C

Thus, we find that the explicit language in Article 2315.1 C,⁸ describing the delay as a “prescriptive period,” is the “best evidence” that the legislature intends what it says in the codal article itself. We find support in the view of Professor William...