ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF LAFAYETTE.
Derriel Carlton McCorvey, For Applicant.
Tara Elizabeth Clement, Christopher Rutledge Teske, GIEGER, LABORDE & LAPEROUSE, LLC; Dawn L. Morris, THE DILL FIRM; Kathy L. Smith, BORNE & WILKES, LLC, For Respondent.
HUGHES, J. Crichton, J., dissents for the reasons assigned by Justice Clark. Clark, J. dissenting with reasons.
[14-1107 La. 1] HUGHES,.[*]
The issue presented in this wrongful death and survival action is whether a putative father is entitled to seek filiation of his deceased minor child by simply alleging in his petition that he is the biological father of the child. Concluding that the appellate court erred in holding that the plaintiff/father alleged insufficient facts to constitute a filiation action, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
This case arose on March 14, 2011 when, unbeknownst to school bus driver Harold Thibeaux, six-year-old La'Derion Miller's arm became trapped in the school bus door while he was attempting to board the bus. La'Derion was dragged by the school bus some eighty feet, and, when his arm became dislodged from the door, he fell beneath the wheels of the bus and was critically injured. La'Derion died approximately forty minutes later.
La'Derion's mother, Heather Jagneaux, witnessed the accident from her front yard and heard La'Derion call out for her help, but she was unable to reach him.
[14-1107 La. 2] On May 16, 2011, Marcus Miller filed the instant action, individually and " on behalf of the estate of his deceased minor son," seeking to recover damages for the pain and suffering inflicted on La'Derion through the negligence of the bus driver, as well as for his own damages arising out of the wrongful death of his son. Named as defendants in the suit were: Mr. Thibeaux; his insurer, Colony Specialty Insurance Company (" Colony" );  his employer,
Lafayette Parish School Board (" LPSB" ); and, his employer's insurer, American Alternative Insurance Corporation (" AAIC" ).
In AAIC's May 2012 answer to this suit, and among other defenses raised, it was alleged that the plaintiff's claims were " barred or limited to the extent that [plaintiff had] not complied with the procedural formalities that would allow him to bring this action as the legal father of La'Derion Miller."
AAIC, LPSB, and Mr. Thibeaux filed peremptory exceptions, in December of 2012, pleading the objection of no right of action as to the plaintiff's claims. The defendants contended that the plaintiff failed to establish, in accordance with LSA-C.C. art. 198, that he was the father of La'Derion and that he had the right to bring the instant action for wrongful death and survival damages pursuant to LSA-C.C. arts. 2315.1 and 2315.2.
Thereafter, the plaintiff filed a motion for judgment of paternity, alleging that: (1) his deceased son, La'Derion Miller, was born on January 11, 2005 in [14-1107 La. 3] Lafayette, Louisiana; (2) two days after the birth, on January 13, 2005, he and La'Derion's mother, Heather Jagneaux, executed an acknowledgment of paternity, which stated that he was the biological father of La'Derion; (3) his name appears on La'Derion's birth certificate; and (4) in an action filed by the State of Louisiana on May 12, 2009, to establish court-ordered child support, he was judicially determined to be the legal and biological father of La'Derion. The plaintiff contended that, since he pled in his petition in the instant case that he was the biological father of La'Derion, the necessary material facts to constitute an avowal action were alleged, and the defendants were put on notice that he was seeking a judgment of paternity, even though he did not make a specific request for that relief, citing this court's decision in Udomeh v. Joseph, 11-2839 (La. 10/26/12), 103 So.3d 343.
Following a January 14, 2013 hearing on the defendants' exceptions and the plaintiff's motion for judgment of paternity, as well as on motions for partial summary judgment previously filed by the parties,
the district court denied the [14-1107 La. 4] defendants' exceptions of no right of action and granted the plaintiff's motion for judgment of paternity, issuing a judgment decreeing that " Marcus Miller is found to be the biological and legal father of the minor child, La'Derion Miller."  Further, the motions for partial summary judgment filed by the defendants were denied, and the motion for partial summary judgment presented by the plaintiff was granted.
The defendants first sought relief from the appellate court by filing writ applications; however, writs were denied by the appellate court, which found no error in the district court ruling denying the defendants' exceptions of no right of action; " no irreparable injury" was found as to the rulings on the motions for summary judgment. As to the district court's granting of the plaintiff's motion for judgment of paternity, the appellate court ruled that an adequate remedy existed on appeal. See Miller v. Thibeaux, 13-CW-0137, 13-CW-0138, 13-CW-0183, 13-CW-0184 (La.App. 3 Cir. 3/22/13) (unpublished).
[14-1107 La. 5] On subsequent appeal, the appellate court ruled that the plaintiff failed to present " sufficient allegations of fact to state a cause of action for filiation, as [his petition contained] only the bare allegation that [he] was the biological father of La'Derion." Accordingly, the appellate court reversed the judgment of the district court, which had denied the defendants' exceptions of no right of action, and rendered judgment dismissing the plaintiff's action for ...