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Jenkins v. Mangano Corp.2/16/2000
REVERSED; VACATED
This writ application arises from the trial court's denial of Mangano Corporation's ("Mangano") peremptory exception of no right of action as to Evelyn Jenkins' claim for the alleged wrongful death of her son, Melvin Jenkins. We reverse and vacate the trial court's judgment and grant Mangano's exception of no right of action.
ISSUES
We are called upon to determine whether there is clear and convincing evidence that Melvin Jenkins informally acknowledged his illegitimate daughter, Teresha Shaffer, and, if so, whether this precludes his mother from asserting a wrongful death claim.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Evelyn Jenkins, filed suit against the defendant, Mangano Corporation, for the wrongful death of her son, Melvin Jenkins. Mangano filed a peremptory exception of no right of action based on the existence of an heir who survived Mr. Jenkins and, thus, precluded Ms. Jenkins from recovery under a wrongful death claim. La. Civ. Code art. 2315.2. The trial court denied Mangano's exception of no right of action; however, this Court, on an application for supervisory writ, reversed that ruling and granted the exception. From our ruling, Ms. Jenkins filed an application for supervisory writ to the Louisiana Supreme Court. The supreme court remanded this matter to this Court for briefing, argument, and full opinion.
LAW AND ANALYSIS
Certain enumerated persons have the right to bring a wrongful death claim if a person dies due to the fault of another. La. Civ. Code art. 2315.2. If a tort victim is survived by a spouse or 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. Id; Wakefield v. Gov't Employees Ins. Co., 253 So. 2d 667 (La. App. 4th Cir. 1971), writ denied, 255 So. 2d 771, 260 La. 286 (La. 1972). The critical requirement for classification as a child under La. Civ. Code art. 2315.2 is the biological relationship between the tort victim and the child, not whether the child is legitimate or illegitimate. Chatelain v. State, Dep't of Transp. and Dev., 586 So. 2d 1373 (La. 1991). If a child was never legitimated during the life of the parent, the court must determine whether the deceased was, in fact, survived by a child. Ruffin v. Leevac Corp., 543 So. 2d 626 (La. App. 1st Cir. 1989), writ denied, 548 So. 2d 330 (La. 1989).
Mangano contends that the decedent, Melvin Jenkins, informally acknowledged his daughter, Teresha Shaffer, during his lifetime, and, thus, she is his legitimate heir. Mangano further argues that this precludes Mr. Jenkins' mother from recovering under a wrongful death claim. To establish that a deceased parent legitimated a child during his lifetime, there must be clear and convincing evidence of that legitimation. La. Civ. Code art. 198; Chatelain, 586 So. 2d at 1379. Thus, here, we must decide whether informal acknowledgment was proven by clear and convincing evidence.
Informal acknowledgment can be proven with evidence that the father: 1) acknowledged the child in formal writings or in public or private conversations; 2) caused the education of the child as his own; 3) lived in concubinage with the mother in his home when the child was conceived; 4) reared the child in his home; 5) named the child in his will; 6) gave the child his surname; and 7) held the child out in the community as his own. Id. We note that the purpose of requiring clear and convincing evidence is to prevent fraud where an illegitimate child is seeking to prove filiation to obtain status as a wrongful death beneficiary or property of the alleged parent. Id.
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