Watkins v. Exxon Mobil Corp.

• Citation: 145 So.3d 237
• Decision Date: 01 July 2014
• Docket Number: No. 2013–CC–1545.,2013–CC–1545.
• Parties: Patricia WATKINS v. EXXON MOBIL CORPORATION.
• Court: Supreme Court of Louisiana

145 So.3d 237

Patricia WATKINS
v.
EXXON MOBIL CORPORATION.

No. 2013–CC–1545.

Supreme Court of Louisiana.

May 7, 2014.
Rehearing Denied July 1, 2014.

[145 So.3d 238]

Kean Miller, LLP, Michael R. Phillips, Louis Matthew Grossman, Brittany Buckley Salup, Richard Stuart Pabst, Julie Parelman Silbert, Adams and Reese, LLP, Glen Marion Pilie, Martin A. Stern, Raymond Peter Ward, Valeria Munsterman Sercovich, Johnson Gray McNamara, LLC, Mary Susan Johnson, Jill Thompson Losch, Chadwick James Mollere, Sarah Suzanne Mahoney, Nicole Mart Gray, Johnson, Johnson, Barrios & Yacoubian, Bettye A. Barrios Esq., Gavin Hodges Guillot Esq., New Orleans, LA, Rodney & Etter, LLC, Roy J. Rodney, Jr., for Applicant.

Falcon Law Firm, Timothy John Falcon, Jeremiah Alexander Mark Sprague, Marrero, LA, Frank M Buck Jr, PLC, Frank Marion Buck, Jr., for Respondent.

GUIDRY, Justice.

We granted the writ application to answer the question of whether the one-year time period for instituting a survival action pursuant to La. Civ.Code art. 2315.1, particularly as amended by Acts 1986, No. 211, § 2, is prescriptive, within the meaning of La. Civ.Code art. 3447, or is peremptive, within the meaning of La. Civ.Code art. 3458. The trial court granted the defendants' peremptory exceptions of peremption and no cause of action. The trial court found the plaintiff's survival action was extinguished because it was perempted, having been filed more than one year from the date of the decedent's death. The court of appeal reversed, finding the one-year period for bringing the survival action is a period of liberative prescription rather than a period of peremption. The court of appeal then remanded the case to the trial court for further proceedings. For the reasons set forth below, we affirm the court of appeal's decision.

FACTS AND PROCEDURAL HISTORY

James Hicks, Sr., the father of the plaintiff, Patricia Watkins, died on December 27, 1986. On June 17, 2011, the plaintiff filed a survival action pursuant to La. Civ.Code. art. 2315.1 and a wrongful death action pursuant to La. Civ.Code art. 2315.2 against numerous defendants, including various oil companies and a pipe-cleaning contractor.¹ The plaintiff alleged that her father was exposed to naturally occurring radioactive material (more commonly referred to as “NORM”) at the facility where the contractor cleaned pipe used by the oil company defendants. At this facility, the plaintiff alleged, her father was exposed to dust containing radioactive material, which resulted in injury to him and, ultimately, his death. The plaintiff claimed that, by operation of contra non valentem, she had neither constructive nor actual notice of her causes of action until June 22, 2010, and thus her petition for damages was timely filed within one-year.²

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The defendant oil companies filed various exceptions, including the peremptory exceptions of prescription, peremption, and no right of action. La.Code Civ. Proc. art. 927A. Among other exceptions, they alleged the one-year time period for instituting a survival action set forth in La. Civ.Code art. 2315.1(A) is one of peremption, which is not susceptible to renunciation, interruption, or suspension, seeLa. Civ.Code art. 3461, nor is it susceptible to the doctrine of contra non valentem. See State Through Div. of Admin. v. McInnis Bros. Const., 97–0742 (La.10/21/97), 701 So.2d 937. Because the suit was filed more than one year from the date of the decedent's death, the defendants asserted the suit was perempted and should be dismissed. The trial court sustained the exceptions of peremption and no cause of action.

The court of appeal reversed and remanded. Watkins v. Exxon Mobil Corporation, 12–0477 (La.App. 4 Cir. 5/29/13), 117 So.3d 548. The court of appeal found the one-year period for bringing a survival claim is prescriptive, not peremptive, relying in large part on the fact that the 1986 amendment clearly and unambiguously describes the time period as prescriptive: “We find the explicit language in Article 2315.1(C), describing the delay as a ‘prescriptive period,’ is the ‘best evidence’ that the legislature intends what it says in the codal article itself.” Id., p. 7, 117 So.3d at 553. The court of appeal also distinguished its prior jurisprudence, namely Succession of Roux v. Guidry, 182 So.2d 109 (La.App. 4 Cir.1966), which had held that the time period set forth in former Art. 2315 was peremptive, on the basis that that decision was restricted to a wrongful death action, and was later overruled by Guidry v. Theriot, 377 So.2d 319 (La.1979), which held that the time period for bringing a wrongful death action was the one-year prescriptive period for instituting a delictual action under La. Civ.Code art. 3462, rather than the one-year period for instituting a survival action set forth in Art. 2315. The court of appeal further distinguished conflicting decisions of the appellate courts on the basis that those courts either relied on what it characterized as dicta in Guidry v. Theriot, were not confronted with the precise issue of the nature of the time limitation for a survival action, relied on decisions that preceded the legislative amendment of Art. 2315.1 in 1986, or failed to acknowledge the language in the 1986 amendment. Id., pp. 8–12, 117 So.3d at 554–56 (discussing Barber v. Employers Ins. Co. of Wausau, 11–0357 (La.App. 1 Cir. 6/28/13), 97 So.3d 454; Adams v. Asbestos Corp., 41,028 (La.App. 2 Cir. 5/17/06), 930 So.2d 342; and Courtland v. Century Indem. Co., 00–333 (La.App. 5 Cir. 10/18/00), 772 So.2d 797). The concurring judge below found the legislature had changed the law in 1986 when it amended the statute to characterize the time period as prescriptive.

We granted the defendants' writ application to determine the correctness of the lower court's decision. Watkins v. Exxon Mobil Corporation, 13–1545 (La.11/08/13), 129 So.3d 522.

LAW and DISCUSSION

We commence with a brief review of the survival and wrongful death actions in Louisiana. At common law, there were two well established rules: personal tort actions abated upon the death of the person of the victim and the death of a person did not create a cause of action on behalf of the living person who was injured by reason of the death. See H. Alston Johnson, III, “Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions,” 37 La. L.Rev. 1 (1976). Eventually, the former rule was changed by statute to permit survival of the victim's

[145 So.3d 240]

action for damages, despite the death of the victim. Id., p. 5 (citing Wex Malone, “The Genesis of Wrongful Death,” 17 Stan. L.Rev. 1043 (1965)). The latter rule was changed in 1846 in England to grant a remedy for wrongful death in favor of certain named beneficiaries. Id. These statutorily-created rights, however, were considered derogations from the common law, and English and American courts were constrained to apply them strictly.

In Louisiana, however, the essence of our civilian tradition is explicitly set forth in Article 1 of the Civil Code: “The sources of law are legislation and custom.” The source of our tort law comes from Article 1382 of the Code Napoleon (1804), and was first set forth in Article 2294 of the Louisiana Civil Code of 1825: “Every act whatever of man, that causes damage to another, obliges him, by whose fault it happened, to repair it.” Although French courts had found authority for the wrongful death action in this language, Louisiana courts, largely relying on common law sources, discerned no such authority for either the survival action or the wrongful death action. See Levy v. State Through Charity Hosp. of La., 253 La. 73, 216 So.2d 818 (1968) (citing Hubgh v. New Orleans & Carrollton R.R. Co., 6 La.Ann. 495 (1851); Hermann v. New Orleans & Carrollton R.R. Co., 11 La.Ann. 5 (1856)); see also Comment, “Wrongful Death: Prescription? Peremption? Confusion!,” 39 La. L.Rev. 1239, 1240–41. The legislature, by Act 223 of 1855, created a so-called survival action and set forth the time period for bringing the action, adding to the language of Article 2294: “... the right of this action shall survive in cases of death in favor of the minor children and widow of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, for the space of one year from the death.” See Levy, 253 La. at 76, 216 So.2d at 819. This survival action was continued in the Revised Civil Code of 1870, Article 2315 of which provided as follows:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the minor children and widow of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, for the space of one year from the death.

The wrongful death action, allowing recovery for damages occasioned certain beneficiaries by the death of the deceased resulting from the fault of another, was added by amendment of Article 2315 by Act 71 in 1884, see Levy, 253 La. at 77, 216 So.2d at 819. Article 2315 then provided:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the minor children or widow of the deceased, or either of them, and in default of these, in favor of the surviving father and mother, 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, as the case may be.

Apparently in response to several judicial decisions, the legislature amended and reenacted Article 2315 by La. Acts 1960, No. 30, § 1, in conjunction with the adoption of the Code of Civil Procedure, to specify that the right to recover damages to property is...