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Herman, Herman & Katz, L.L.C.
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In December 2020, the Louisiana Supreme Court issued an important decision pertaining to the rights of Louisiana children given up for adoption. The Court ruled that these children have legal standing to pursue wrongful death/survival claims stemming from the death of their biological parents. However, this issue has not been totally put to rest. Recently, the Court granted a rehearing of this issue. As such, the Court may ultimately decide to change its decision on this issue.

What Is A Wrongful Death/Survival Action Under Louisiana Law?

In Louisiana, if a person dies due to the fault of another, a lawsuit may be brought by certain family members to recover damages sustained as a result of the death. Those family members include:

  • The surviving spouse and children of the deceased;
  • The surviving parents of the deceased if he/she left no surviving spouse or children;
  • The surviving siblings of the deceased if he/she left no surviving spouse, children, or parents; and
  • The surviving grandparents of the deceased if he/she left no surviving spouse, children, parents, or siblings.

In a Louisiana wrongful death/survival action, a qualifying family member may recover damages that include:

  • Pre-death medical expenses of the deceased;
  • Pre-death physical pain and suffering of the deceased;
  • Pre-death mental/emotional pain and suffering of the deceased;
  • Burial/funeral expenses of the deceased;
  • Loss of financial support provided to surviving family members by the deceased;
  • Mental/emotional pain and suffering of the surviving family member;

Recent Decision Concerning The Louisiana Wrongful Death/Survival Action  

The Louisiana Supreme Court’s recent decision on the applicability of the wrongful death/survival action to children given up for adoption came within the context of a tragic 18-wheeler crash wherein a life was lost following a head-on collision.  

The deceased driver was survived by two adult biological children, who were given up for adoption as minors. Following the death of their biological father, the children filed a wrongful death/survival action in Concordia Parish against the trucking company that owned the 18-wheeler that caused the crash.

After the lawsuit was filed, the trucking company filed a motion requesting that the district court in Concordia find that the biological children, given up for adoption, could not pursue a wrongful death/survival claim. The trucking company pointed to Louisiana legal precedent that children given up for adoption are divested of their legal rights except as to inheritance.

The Concordia Parish court sided with the biological children. The trucking company appealed to the Louisiana Third Circuit Court of Appeal. The Third Circuit ruled in favor of the trucking company. The children appealed to the Louisiana Supreme Court.  

In analyzing the issue, the majority of the Supreme Court looked to the phrase “child or children of the deceased” in the applicable wrongful death law. The Court concluded that a common, or generally prevailing meaning of that phrase, clearly includes the deceased’s biological children. The Court noted that while relevant Louisiana law expanded the phrase “child or children of the deceased” to include non-biological children that the deceased adopted, the law did not narrow the term to exclude biological children of the deceased given up for adoption.             

Louisiana Justices Weimer and Crichton dissented from the majority’s opinion. The dissenting justices pointed to the historical evolution of the relevant wrongful death/survival action law. Specifically, the justices noted that at one time, the law included “children given in adoption” as a type of family member that could pursue a wrongful death/survival action. The phrase was eliminated by the Louisiana legislature in a 1960 amendment. Thus, the justices concluded that this was an intentional expression by the legislature that such children were no longer to be included as a beneficiary of the wrongful death/survival claims of their biological parents.   

The dissenting justices also pointed to another aspect of Louisiana law that establishes that upon adoption, the adopting parent becomes the parent of the child for all purposes, and the blood relationship between the child and biological parent is terminated, except as otherwise provided by law.   

This ruling by a somewhat divided Louisiana Supreme Court marks an important confirmation of the rights of children given up for adoption. Court watchers anxiously await a decision by the Supreme Court following its rehearing of this issue. 

For over 70 years, the Louisiana law firm of Herman, Herman & Katz has represented families in wrongful death/survival actions. If you or someone you know has lost a loved one due to the fault of another, our experienced Louisiana lawyers can help you navigate the complexities of a wrongful death/survival action. For more information or a free case consultation, contact us online or call us toll-free at 844-943-7626. 

Rismiller v. Gemini Ins. Co., 2020-0313 (La. 12/11/20) 2020 WL 7310506.  

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