Wrongful Death of a Wage Earner

The written material on the topics “Wrongful Death of a Wage Earner with Dependents” and “Wrongful Death of a Child” has considerable overlap and therefore both topics will be handled in the following paper.

A.  Survival Action LCCP Art. 2315.1:

A.    If a person who has been injured by an offense or quasi-offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi-offense, shall survive for a period of one year from the death of the deceased in favor of:

(1)    The surviving spouse and child or children of the deceased, or either the spouse or the child or children;
(2)    The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving; and
(3)     The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

B.    In addition, the right to recover all damages for injury to the decedent, his property or otherwise, caused by the offense or quasi offense, may be urged by the decedent’s succession representative in the absence of any class of beneficiary set out in the preceding Paragraph.

C.    The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
   
D.    As used in this Article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father, and mother, by adoption, respectively.

Added by Acts 1986, No. 211, § 2.  Amended by Acts 1987, No. 675, § 1.

B.    Wrongful Death Actions LCCP Art. 2315.2:

A.    If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:

(1)    The surviving spouse and child or children of the     deceased, or either the spouse or the child or     children;
(2)    The surviving father and mother of the deceased,     or either of them if he left no spouse or child     surviving; and
(3)    The surviving brothers and sisters of the     deceased, or any of them, if he left no spouse,     child or parent surviving.

B.    The right of action granted by this Article prescribes one year from the death of the deceased.

C.    The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

D.    As used in this Article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father, and mother, by adoption, respectively.

Added by Acts 1986, No. 211, § 2.

1.    Sets out hierarchy of beneficiaries
2.    Existence of one primes others
3.    Succession representatives
4.    Right granted is “inheritable”
5.    Adoptive parents and children have same rights
*  fetus does constitute a “person” under survival action
See Wartelle v. Woman’s and Children’s Hospital, 95-736
(La. App. 3 Cir. 1996) 676 So.2d 632.

C.    Biological Relationship Required (Adoptions Recognized)

1.  Critical Requirement – Etcher v. Neumann M.D.
     806 So.2d 826, 2000-2282 (La. App. 1 Cir. 2001)

2.  Facts in Etcher
Plaintiff Ms. Etcher was married to Mr. Etcher when a child, Sarah was born.  The Etcher’s were still married at the time of trial.  Mr. Etcher was legal father of Sarah.  Mr. Young was Sarah’s biological father.  Sarah died as a result of medical malpractice.

Mr. Young never adopted Sarah while she was living and did not formally acknowledge her until after she died.  The T/C overruled the defendant’s peremptory exception of no right of action filed against Mr. Young.  The court of appeals affirmed holding that:

The critical requirement is the biological relationship between the tort victim and the parent.  The court found that Mr. Young’s acknowledgement of Sarah created a presumption of biological parentage.  The fact that Sarah has a “legal father” does not preclude the biological father from recovering benefits as Sarah’s father under Louisiana’s Wrongful Death and Survival Actions.  Etcher, 806 So.2d at 839.
3.  Note:  In Etcher the legal father did not assert a wrongful  death or survival claim.  Since Louisiana recognizes “dual paternity” the “legal father” and “biological father” were not  precluded from recovering wrongful death and survival damages.  The same would probably hold true for adoptive and the biological parents.
4.    Biological/Legal parent without a parent child relationship with deceased child may not be entitled to a monetary award.  Barnes v. Bott, 615 So.2d 1337 (La. App. 4th Cir. 1993).

D.    Wrongful Death and Survival Actions Exclusionary Effect
Under Louisiana’s Wrongful Death and Survival articles the existence of one member of a higher class of beneficiaries excludes the lower class members from legally obtaining the right to pursuit the death claim.  The Louisiana Supreme Court’s decision in Jenkins v. Mangano Corp., 774 So.2d 101, 2000-0790 (La. 11/28/00), where the parent of a patient instituted a wrongful death and survival action on behalf of her son.  Plaintiff’s petition alleged that she was the proper party to pursue the claim on her son’s behalf since he never married, nor fathered any children.  Plaintiff further alleged that her son had never been married, or lived in open concubinage at anytime, and that he never made an acknowledgment of any illegitimate children.  Moreover, the petition claimed that no filiation actions had been instituted within one year of the decedent’s death. 

Two years after the death of plaintiff’s son (the decedent) the defendant filed an exception of no right of action contending that Teresha Shaffer, as daughter of the decedent, was his sole heir and the only party entitled to bring a wrongful death action on his behalf.    Teresha Shaffer did not file a wrongful death or survival action on behalf of the decedent and any action she may have had was prescribed when defendants filed its exception.  The defendant acknowledged that Teresha was the illegitimate daughter of Melvin Jenkins (the decedent) and her mere existence as daughter of the deceased precluded the plaintiff (mother of the deceased) from bringing the claim.

Plaintiff countered and argued that Theresa had never been legitimated, nor had she instituted a timely proceeding for filiation.  Plaintiff further argued that the decedent never acknowledged Theresa as his daughter.  The trial court denied the exception and the court of appeals reversed, finding that the decedent had informally acknowledged Teresha and she was the proper party to pursue the action.  The Louisiana Supreme Court granted certiorari to review the correctness of that decision and held that when a tort victim is survived by a child, the parents of the tort victim have no right to recover for the damages for the victim’s wrongful death.  In Jenkins v. Mangano Corporation, the Court held that the decedent was survived by a daughter who did not timely file a filiation action.  Nonetheless the defendant is not precluded from raising the existence of the child as a defense as long as the defense proves by clear and convincing evidence that the child was acknowledged by the tort victim before death.

The trial judge’s granting defendant’s exception was affirmed, dismissing the mother’s action.

E.        Settlement and Subsequent Death of Parent

According to the Louisiana Supreme Court, the settlement or compromise and release of the tort victim’s action does not bar the victim’s beneficiaries instituting a wrongful death claim against the responsible parties on the same issues.  Brown v. Drillers, Inc., 630 So.2d 741 (La. 1994).  In Brown, deceased worker’s widow brought a wrongful death claim after husband died after settling the personal injury claim.  The defendant, tortfeasor moved to dismiss based on the predeath release executed by plaintiff. The court of appeals held that surviving spouse could not have compromised the death claim before the worker died.  The Louisiana Supreme Court held that the general release executed by worker and worker’s wife was not intended to cover wrongful death claims that occurred to wife upon injured worker’s death.

F.     Loss of Services for Homemaker Parent

• Replacement value of housework; (maid and housekeeping     services);
• Tutoring the children: (educational tutoring);
• Transportation for children to school and after school function;
• Value of replacement services requires “measurable proof”;
• Economic calculation supported by vocational testimony;     and
• Costs for loss services on open market.

G.    Illegitimate Children
Art. 209 of Civil Code requires that the illegitimate child establish filiation with the deceased parent by “clear and convincing evidence” in order to qualify and pursue a wrongful death and survival action.  The mere existence of an illegitimate child precludes the parents of the deceased from recovering under Louisiana’s wrongful death statute.  See Jenkins v. Long Term Care Managers, Inc., 99-386 (La. App. 5 Cir. 2000); 758 So.2d 863.

H.    Checklist for Establishing Paternity

• Identify potential heirs early on if you are in the second or third class of beneficiaries;
• Obtain all documents evidencing father’s acknowledgment of the child in formal writings;
• Identify any acknowledgement in public or private conversations;
• Confirm whether the parents were living in open concubinage at time of conception;
• Evidence of rearing child in parent’s home;
• Documents naming child in parent’s will;
• Has the parent given the child parent’s surname;
• Has the parent held the child out in community as parent’s own;
• Testimony of child’s mother confirming parentage;
• Gifts given on birthdays and holidays;
• Receipt of Social Security benefits under putative parent’s name;
• Testimony of child as to its parentage;
• Child’s relationship with putative grandparents;
• Obituary notice confirming parentage; and
• Evidence of financial support.

I.    Factors to be Considered and Developed in Evaluating     Wrongful Death Quantum:

• Time spent with parent and child;
• Affect death has had on family;
• Only child or one of many children;
• Interdependency of parent and child; and
• Ability to have other children.

J.    Factors Used to Determine Loss of Support of Wage Earning     Parent:

• Decedent’s present earnings;
• Age at death and life expectancy;
• Potential increases and decreases in earnings;
• Work life expectancy;
• Decedent’s job security;
• Decedent’s health before injury;
• Past work record;
• Personal expenses of decedent (may be deducted from award); and
• Fringe benefits package.

K.    Survival Action Checklist

• Funds derived from Survival Action are divided equally among all members of the class of beneficiaries;
• Pain and suffering from moment of injury to moment of death;
• Victims loss of earnings are included and predeath pain and suffering if there is any evidence of predeath pain and suffering includes preimpact fear; and
• Severity of injury is a factor.

L.    Inadequate Insurance and Competition for Funds

Unlike the survival action, damages recovered in a wrongful death action belong to the individual class member and encompasses their damages suffered from the moment of the victim’s death and thereafter.  The damages are the persons sum losses, both economic and emotional.

When representing several members of the class and there are limited funds available, class members may be placed in a situation where each member of the class is in competition with other members for the settlement funds.  If the case goes to trial and a jury or judge awards damages then no conflict arises.  However, when one lawyer represents more than one class member and attempts to negotiate settlement for each party’s wrongful death a conflict may arise when there are limited settlement funds available.

Generally this competition for funds will not present a problem when the surviving spouse is also the mother of the children of the deceased.  However, if there are strained relations between a second wife and her children versus the children of the deceased from a previous marriage then this potential competition among plaintiffs may place the lawyer in an awkward position.  The deceased’s children may not agree to an equal split of the available funds.

There is no bright line rule for handling this potential competition for funds.  Each case will depend on the parties involved and the lawyer’s ability to effectively advise and control the various personalities involved.
M.    Evidence To Compile To Help Establish Closeness of Family     Relationship (Checklist)

•    Cards (Birthday, Wedding, Father’s Day)
•    Letters (To and From)
•    Pictures (Everyday family life) (Video Tapes)
•    Copy of Eulogy at Funeral
•    Statement made by family at funeral
•    Photographs chronologically of major life events
•    Email messages
•    Gifts given (cell and phone records)
•    Support (Cancelled checks and bills)
•    Trips taken together
•    Marriage Certificate