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Jenkins v. Mangano Corp.11/28/2000
lly recognized Teresha Shaffer as his daughter during his lifetime. Thus, we find that there is clear and convincing evidence that he informally acknowledged her as his own during his lifetime.
CONCLUSION
When a tort victim is survived by a child, the parents of the tort victim have no right to recover for the damages sustained by the victim or for their own damages for the victim's wrongful death. We conclude that the record is clear that Melvin Jenkins was survived by a daughter. Although that child did not timely file a filiation action, the defendant is not precluded from raising her existence as a defense as long as the defendant proves, by clear and convincing evidence, that the child was acknowledged by the tort victim before death. In the instant case, Manhattan Guest House proved that Melvin Jenkins informally acknowledged Teresha Shaffer before his death. Accordingly, we conclude that the court of appeal's opinion reversing and vacating the trial court's judgment and granting of Manhattan Guest House's exception of no right of action should be affirmed.
DECREE
For the reasons assigned, the judgment of the court of appeal is affirmed. All cost are assessed against plaintiff.
JOHNSON, J., dissenting
The majority has, in effect, denied Melvin Jenkins' survivors the right to bring any claim for his alleged wrongful death. In a move designed to avoid liability all together, defendants waited until the purported daughter's claim had prescribed, then filed an exception of no right of action to bar the mother's claim.
I agree with the trial court's determination that the evidence offered was insufficient to establish that the deceased had informally acknowledged Teresha Shaffer as his daughter. Pursuant to the Louisiana Civil Code, parents of an illegitimate child may establish filiation by making a declaration before a notary public and two witnesses. LSA-C.C. art. 203. Additionally, a child who has not been formally acknowledged may establish filiation by instituting a civil proceeding. LSA-C.C. art. 208. Louisiana Civil Code Article 209 provides:
*
B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child's birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages. (Emphasis added).
In this case, the purported daughter has never instituted an action to establish filiation. Two years after Melvin Jenkins' death and twenty-six years after Teresha's Shaffer's birth, defendants have asserted filiation on Teresha's behalf. Defendants offered as evidence the testimony of Teresha and her mother, who both testified that the deceased recognized Teresha as his daughter by visiting her and allowing her to visit him during the summers. Defendants ask us to give great weight to the testimony of Teresha and her mother that Teresha received Social Security
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