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Phillips v. Francis2/6/2002
REVERSED AND REMANDED FOR TRIAL ON THE MERITS.
Lucille Malbreaux timely filed a wrongful death suit against Brian Keith Francis and Sheriff Mike Neustrom of the Lafayette Parish Sheriff's Department as well as the Lafayette City/Parish Consolidated Government, John W. Fuller, Consumers County Mutual Insurance Company, and Allstate Insurance Company to recover damages resulting from the events which led up to the death of Garland Malbreaux, her husband, from an automobile accident. Ms. Malbreaux filed an amending petition on behalf of Raven Malbreaux, her minor daughter, asserting the same cause for the wrongful death of Mr. Malbreaux. The petition was filed more than one year after Mr. Malbreaux's death. The trial court granted the Sheriff's exception of prescription. It is from this judgment that the Plaintiffs appeal. They assert that Raven's wrongful death action has not prescribed because it was interrupted by the filing of her mother's timely filed wrongful death action.
We reverse the judgment of the trial court. The facts which constitute the basis of Raven's cause of action are the same facts upon which Ms. Malbreaux's timely filed action is based. Prescription, therefore, was interrupted on Raven's claim when Ms. Malbreaux filed the original suit.
I. ISSUE
The issue presented for review is whether the trial court erred in finding that the timely filed wrongful death action by a surviving spouse interrupts prescription as to the wrongful death action of the minor child of the surviving spouse and the deceased filed more than one year after the decedent's death.
II. FACTS
The facts of this case are not in dispute. Garland Malbreaux died on August 22, 1999, as a result of an automobile accident that occurred in Lafayette, Louisiana. Mr. Malbreaux was survived by his wife, Lucille, and their daughter, Raven, then seven years old. On August 9, 2000, Ms. Malbreaux timely filed a wrongful death action against the Lafayette Parish Sheriff's Office. She alleged in her wrongful death claim for damages that a sheriff's deputy negligently engaged in a high speed chase of a Mr. Francis which, in turn, caused the automobile accident resulting in Mr. Malbreaux's death. In Lucille's petition, there is no mention of her and Garland's daughter, Raven.
On October 26, 2000, Ms. Malbreaux filed a motion to amend her wrongful death petition to bring a wrongful death claim on behalf of her daughter, Raven, arising from Garland's August 22, 1999, death.
III. LAW AND DISCUSSION
Prescription
Defendants argue that Raven's wrongful death action is a separate cause of action. Since it was filed more than one year after the death of her father, the prescriptive period for filing Raven's wrongful death claim has passed. Louisiana Civil Code Article 2315.2, the wrongful death action, provides that surviving children, among certain other specified individuals, have the right to recover damages for the wrongful death of their parent(s) within one year of the death of the deceased. On August 22, 1999, Raven's right to enforce La.Civ.Code art. 2315.2 as a surviving child of the deceased vested.
The question in this case is whether her cause of action has prescribed such that she cannot enforce her right to recover damages for the wrongful death of her father.
Louisiana Civil Code Article 3462 provides that prescription is interrupted upon the filing of suit in a court of competent jurisdiction and venue. This interruption continues while the suit is pending. La.Civ.Code art. 3463. Once prescription is interrupted, the time that has already run is erased and prescription commen
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