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Etcher v. Neumann12/28/2001
esumption of LSA-C.C. art. 184. However, our analysis does not end here.
Both Ms. Etcher and Mr. Young maintain that there is no doubt that Mr. Young is Sarah's biological father. On January 24, 2000, Mr. Young executed a formal acknowledgement of paternity by authentic act attesting to that fact. In overruling the peremptory exception raising the objection of no right of action, the trial court noted that Louisiana law has recognized the concept of dual paternity and determined that the formal acknowledgment by authentic act executed by Mr. Young created a rebuttable presumption of Mr. Young's parentage. In our review of this record, there is, in fact, no evidence, to rebut Ms. Etcher and Mr. Young's position that Mr. Young is Sarah's biological father.
When considered in the context of a child bringing a wrongful death and survival action, the critical requirement is the biological relationship between the tort victim and the child. The child with a biological connection to the tort victim, whether a legitimate, legitimated or illegitimate child, has the right to bring an action for wrongful death and survival damages. Chatelain v. State, Dept. of Transp. and Development, 586 So.2d 1373, 1376 (La. 1991). A child who is neither legitimate at birth, nor subsequently legitimated by the parent must, however, establish the filiation necessary to qualify as a child under LSA-C.C. art. 2315, within the time limitation imposed under LSA-C.C. art. 209. Chatelain, 586 So.2d at 1376.
Based on the analysis set forth in Chatelain , we conclude that, as is the case in considering the status as "child," when considering the status as "parent" under LSA-C.C. arts. 2315.1 and 2315.2, the critical requirement is the biological relationship between the tort victim and parent. We find support for this conclusion in the case of Gnagie v. Department of Health and Human Resources, 603 So.2d 206 (La. App. 1st Cir.), writ denied, 608 So.2d 174 (La. 1992). In determining, ex proprio motu, that Mr. Gnagie had no right to bring a survival or wrongful death action for the child's death, this court stated:
e hold that, with respect to entitlement to bring wrongful death and survival actions . . . the legal fiction of paternity created by virtue of LSA-C.C. arts. 184 and 189 may be refuted or overcome by sufficient evidence that the legal fathe r is not the biological father. Where the evidence is so overwhelming that the legal father is not the actual biological father . . . this court will allow the legal fiction to be overcome in the interest of justice. Gnagie, 603 So.2d at 214.
In this case, both Ms. Etcher and Mr. Young attested to Mr. Young's biological link to Sarah. Moreover, Mr. Young's acknowledgement of Sarah by authentic act effectively created a presumption of biological parentage. See Rousseve v. Jones, 97-1149, p. 7 (La. 12/2/97), 704 So.2d 229, 232-233. Based on the rationale of Chatelain and Gnagie, we find that the fact that Sarah has a "legal father" by virtue of the presumption of LSA-C.C. art. 184, does not preclude the biological father from recovering benefits as Sarah's father under LSA-C.C. arts. 2315.1 and 2315.2.
Defendants take issue with the fact that Mr. Young did not try to adopt Sarah while she was living and did not formally acknowledge her until after she died, and then only after a pleading was filed challenging his right to recover money because of her death. We note that Sarah lived only four and one-half months. Moreover, defendants have neither pointed out to this court, nor have we found any prescriptive statute applicable to a father's action to acknowledge his biological child. This court has stated that a biological parent who
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