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Fritsche v. Vermilion Parish Hospital Service District #22/2/2005
REVERSED AND RENDERED.
Renell Fritsche, the common law wife of the decedent, and Paul and Leila Holt, parents of the decedent, filed a petition for damages against Vermilion Parish Hospital Service District No.2 d/b/a Abbeville General Hospital, Dr. Akshey Kumar Gupta, and Dr. John Thibodeaux, alleging wrongful death and survival damages with respect to the death of Larry Holt at Abbeville General Hospital on November 8, 2002. All Defendants filed various exceptions including lack of procedural capacity, no right of action, and no cause of action. After a hearing on the exceptions, a judgment was signed granting all Defendants' exceptions with respect to the claims of Renell Fritsche and dismissing her claims with full prejudice. This judgment was certified as a final judgment pursuant to La.Code Civ.P. art. 1915(B)(1). All Plaintiffs appealed. For the following reasons, we reverse.
Facts
The decedent, Larry Holt, was transported to Abbeville General Hospital by ambulance on October 31, 2000 complaining of vomiting blood and tarry stools. He was seen in the emergency room and admitted to the hospital. Mr. Holt was under the care of Dr. John Thibodeaux and Dr. Akshey Kumar Gupta. Mr. Holt remained hospitalized until his death on November 8, 2002.
Renell Fritsche contends that she and the decedent contracted a valid common-law marriage by living together as husband and wife on a continuous basis beginning twenty-five years prior to his death in Texas until they moved to Louisiana where they lived as husband and wife for eight years prior to his death.
Discussion
Pursuant to La.Civ.Code arts. 2315.1 and 2315.2, the right of action for survival damages and/or wrongful death vests with the parents of the decedent only if there is neither a surviving spouse nor surviving children. In this case, the alleged surviving spouse and the surviving parents have joined as parties plaintiffs but only one class (i.e., either the surviving spouse or the surviving parents) has the right of action to bring this suit.
On appeal, plaintiffs urge that the trial court erred in failing to give full faith and credit to the common-law marriage that was validly contracted in Texas between Larry Holt and Renell Fritsche, and failing to recognize the right of Renell Fritsche to assert her claims as the valid common-law spouse of Larry Holt.
Defendants, Dr. Thibodeaux and Dr. Gupta, urged that: (1) Louisiana does not recognize common-law marriages confected in other states when the couple resides and is domiciled in Louisiana; and alternatively, (2) no common-law marriage ever existed. Defendant, Abbeville General Hospital, did not take a position as to whether this alleged common-law marriage should be recognized under Louisiana law but, rather, averred that, regardless of whether the common-law marriage is recognized pursuant to Louisiana law, one of the class of plaintiffs named in the Petition must be dismissed from the suit.
The party raising the peremptory exception bears the burden of proof and in order to prevail, the mover must show that the plaintiff does not have an interest or has no legal capacity to proceed. Jackson v. Slidell Nissan, 96-1017 (La. App. 1 Cir. 05/09/97), 693 So.2d 1257; La.Code Civ.P. art. 927. Evidence can be introduced.
When considering an exception of no right of action, the Court of Appeal must determine whether the plaintiff belongs to a particular class for which the law grants a remedy for a particular grievance. Duplessis Cadillac, Inc. v. Creative Credit Services, Inc., 597 So.2d 1155 (La.App. 1 Cir. 1992). The court of appeal reviews exceptions of no right of action de n
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