 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Mason v. Luther6/1/2005
Court composed of Glenn B. Gremillion, Billy Howard Ezell, and James T. Genovese, Judges.
WRIT GRANTED AND REMANDED.
This case presents the res nova issue of whether children conceived and/or born after an accident involving their mother have causes of action for loss of consortium. Issues of prescription are also raised. The State of Louisiana, Department of Transportation and Development (DOTD), filed exceptions of no right/no cause of action and prescription to the loss of consortium claims filed on behalf of these children which were denied by the trial court. The DOTD sought supervisory writs in this court from the denial of its exceptions. We granted the writ for the purpose of calling the case up for full briefing, argument, and an opinion.
FACTS
On May 5, 1999, an automobile accident occurred involving Janie Audra Mason (Mason) and James Luther (Luther). Suit was filed by Mason on May 19, 1999, against Luther, his insurance company, and the DOTD. Luther and his insurance company were subsequently dismissed from the suit. In July 2004, Mason filed a supplemental and amending petition adding loss of consortium claims on behalf of her minor children. Five children were named in the amending petition. Of the five, one was born at the time of the accident, three were born after the accident, and one was conceived, but not born at the time of the filing of the supplemental petition.
In response to the supplemental petition, the DOTD filed exceptions of no cause/no right of action and prescription. A hearing was held on November 15, 2004, after which the trial court denied the exceptions.
NO CAUSE OF ACTION
The DOTD argues that children not born at the time of the accident do not have a cause of action for loss of consortium. It does not contest the right of the child, Jane Coward, who was alive at the time of the accident to bring a claim for loss of consortium. It contends that the claimants must have been in existence at the time of the accident to have a cause of action for loss of consortium.
The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading. The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a trial court's ruling sustaining an exception of no cause of action, the appellate court and this court should conduct a de novo review because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial.
Industrial Cos., Inc. v. Durbin, 02-665, pp.6-7 (La. 1/28/03), 837 So.2d 1207, 1213 (citations omitted).
Louisiana Civil Code Article 2315(B) provides for a cause of action for recovery of damages for loss of consortium and states that damages "shall be recoverable by the same respective categories of persons
Page 1 2 3 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|