286 So.3d 534
La. Ct. App.2019Background
- Earl T. Lindsay, Sr. died of asbestos-related lung cancer on Feb. 18, 2015; two children (Earl Jr. and Joycelyn Butler) filed a wrongful-death suit on Feb. 17, 2016.
- Reginald and Lyndon Rivers claim to be additional biological children of the decedent and filed a petition to intervene (and to establish paternity) on May 1, 2017.
- Plaintiffs and Defendants raised peremptory exceptions of prescription; the trial court sustained the exception, relying on Stenson and La. C.C.P. art. 1041, and dismissed the intervention with prejudice.
- Intervenors appealed, arguing the intervention should relate back under La. C.C.P. art. 1153 (Giroir) or otherwise be preserved.
- The appellate court held that Stenson controls for incidental demands (art. 1041) so art. 1153/Giroir is not the proper route for petitions to intervene, but the trial court’s dismissal was premature because it had not resolved paternity.
- The court vacated the prescription dismissal and remanded for a paternity hearing; if paternity is established, the original timely wrongful-death suit will interrupt prescription as to all of the decedent’s children.
Issues
| Issue | Intervenors' Argument | Plaintiffs/Defs' Argument | Held |
|---|---|---|---|
| Whether a petition to intervene should be treated as an amending petition that relates back under La. C.C.P. art. 1153 (Giroir test) | Intervention should be treated as an amendment and relate back to the timely original filing | Petition to intervene is an incidental demand governed by La. C.C.P. art. 1041; Giroir/1153 not applicable | Article 1041 governs incidental demands per Stenson; art. 1153/Giroir does not apply to petitions to intervene |
| Whether dismissal as prescribed was proper given Intervenors’ allegation they are decedent’s children | If Intervenors prove paternity, the original suit by sibling(s) interrupts prescription as to all children | Because intervention was filed more than 90 days after service, prescription bars the claim under art. 1041 | Dismissal was premature. Remand for paternity hearing; if paternity is proven, plaintiffs’ timely suit interrupts prescription as to Intervenors |
Key Cases Cited
- Stenson v. City of Oberlin, 60 So.3d 1205 (La. 2011) (holds Article 1041 applies to incidental demands like petitions to intervene and Article 1153/Giroir should not be used to avoid Article 1041’s requirements)
- Giroir v. South La. Med. Ctr. Div. of Hospitals, 475 So.2d 1040 (La. 1985) (announces four-factor test for relation-back of amended pleadings under Article 1153)
- Louviere v. Shell Oil Co., 440 So.2d 93 (La. 1983) (recognizes that suit by one party interrupts prescription as to others who share the same cause of action)
- Tureaud v. Acadiana Nursing Home, 696 So.2d 15 (La. App. 3 Cir. 1997) (holds a timely wrongful-death suit by one child interrupts prescription for other children)
- Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La. 1993) (confirms wrongful-death beneficiaries share a common cause of action for prescription purposes)
- Corley Enterprises of La., Inc. v. Bear Creek Saloon, Inc., 273 So.3d 1236 (La. App. 1 Cir. 2019) (identifies three exceptions relevant to prescription: art. 1153 relation-back, art. 1041 incidental-demand tolling, and shared-cause-of-action interruption)