Caceras v. Work
110 So. 3d 275
La. Ct. App.2013Background
- Parents filed suit for their unborn child’s death against Dr. Work, nurse Retana, and LAMMICO.
- LAMMICO moved for peremptory exception of no right of action against the alleged father (Acevedo) for lack of a filiation action.
- Trial court sustained the exception as to Acevedo and granted partial summary judgment on insurance coverage and other relief.
- Louisiana Supreme Court’s Udomeh decision (11-2839) held avowal actions may be based on petition alleging paternity; case remanded for proceedings consistent with Udomeh.
- Original petition alleged paternity and attendance at key events; court must assess whether pleading can reasonably be construed as filiation, given peremption and notice requirements.
- Proceedings occurred before Udomeh, but Udomeh governs whether the petition suffices to instantiate an avowal action and wrongful death claim; the matter is remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filiation proceedings are required to sue for wrongful death. | Acevedo asserts no separate filiating proceeding is required. | LAMMICO contends no right of action due to lack of filiation within one year. | Udomeh permits avowal when petition shows paternity; remanded for proceedings consistent with Udomeh. |
| Whether the petition suffices as an avowal/filiation action. | Petition contains facts indicating paternity and notice to defendants. | Petition did not formally plead filiation; insufficient under law. | Original petition construed as avowal; sufficient to entitle Acevedo to relief; remand ordered. |
| Whether amendment was permissible given peremption of Art. 198. | Amendment not required; facts adequate under Udomeh. | Art. 198 peremptive precludes amendment to add filiation. | Peremption limits amendments, but petition itself sufficed under Udomeh; remand for proceedings. |
| What remedy or relief is appropriate on remand. | Avowal action and wrongful death damages should proceed. | Await outcome of avowal determination and insurance considerations. | Remanded for further proceedings consistent with Udomeh’s approach. |
| How does Udomeh affect this case’s timing and notice issues? | Udomeh supports timely avowal within one-year window. | Udomeh not applicable due to pre Udomeh ruling. | Udomeh governs; case remanded for proper avowal action. |
Key Cases Cited
- Udomeh v. Joseph, 103 So.3d 343 (La. 2012) (avowal action sufficient where petition shows paternity; case remanded)
- Reese v. State Dep’t of Pub. Safety & Corr., 866 So.2d 244 (La. 2004) (pleadings construed liberally to reach substantial justice)
- In re G.E.T., 529 So.2d 524 (La.App. 1st Cir. 1988) (pleadings are to be construed to determine if action falls within proper category)