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Jenkins v. Mangano Corp.11/28/2000
We granted this writ to resolve the issue of whether the parent of a tort victim has a right of action to recover in a wrongful death action when the tort victim is survived by an informally acknowledged adult illegitimate child and that child has not judicially asserted filiation timely.
FACTS AND PROCEDURAL HISTORY
On May 5, 1997, plaintiff, Evelyn Jenkins, filed the instant wrongful death and survival action on behalf of her son, Melvin Jenkins, pursuant to La. Civ. Code arts. 2315.1 and 2315.2. She alleged that the negligent treatment of her son by defendant, Long Term Care Managers, Inc. d/b/a Manhattan Guest House (hereinafter referred to as "Manhattan Guest House"), resulted in his death on July 8, 1996. Throughout the proceedings, plaintiff has maintained that she is the proper party to bring this action on her son's behalf since he never married nor fathered any children. In fact, in plaintiff's amended petition, she specifically stated that Melvin Jenkins had never been married, or lived in open concubinage at any time, and that he never made an acknowledgment of any illegitimate children, under either Louisiana Civil Code Article 203 or Article 204.
On December 7, 1998, two years after the death of Melvin Jenkins, Manhattan Guest House filed an exception of no right of action contending that under La.Civ. Code arts. 2315.1 and 2315.2, Teresha Shaffer, as the daughter of the decedent, was his sole heir and only party entitled to bring a wrongful death action on his behalf.
In support of its exception, Manhattan Guest House submitted plaintiff's answers to interrogatories as well as the deposition testimony of Teresha Shaffer; Teresha's mother, Joyce Schamburger; and plaintiff. Manhattan Guest House also attached a copy of Melvin Jenkins' obituary and an affidavit of the funeral director stating that plaintiff informed him both in writing and orally that Melvin Jenkins was survived by a daughter named Teresha Shaffer. While Manhattan Guest House acknowledged that Teresha was the illegitimate daughter of Melvin Jenkins, it argued that Teresha's mere existence as the daughter of the deceased precludes plaintiff from bringing the action on her son's behalf.
Plaintiff opposed the exception, contending that Teresha had not been legitimated under La. Civ. Code art. 203, nor had she instituted a timely proceeding for filiation under La. Civ. Code art. 209. Further, plaintiff asserted that defendant failed to prove, by clear and convincing evidence, that the decedent had informally acknowledged Teresha Shaffer as his daughter.
After the hearing, the trial judge denied defendant's exception finding that the decedent, Melvin Jenkins, never acknowledged Teresha Shaffer, never married nor lived in the state of open concubinage with the mother of Teresha Shaffer. The trial judge also noted that any evidence of a relationship between Evelyn Jenkins, the mother of the decedent, and Teresha Shaffer was insufficient to show an acknowledgment on the part of Melvin Jenkins. The trial judge concluded that the conduct of the grandmother cannot be considered to constitute any informal acknowledgment by the alleged father.
The court of appeal reversed the ruling of the trial judge finding Manhattan Guest House presented clear and convincing evidence that Melvin Jenkins informally acknowledged Teresha Shaffer and that Teresha Shaffer was the proper party to bring any wrongful death suit. Jenkins v. Long Term Care Managers, Inc., 99-386 (La. App. 5 Cir. 2/16/00); 758 So. 2d 863. This court granted certiorari to review the correctness of that decision. Jenkins v. Mangano, et al, 00-CC-0790 (La. 5/26/00); 762 So.2d 626.
DIS
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