WILBERT S. PORCHE
SUTHERLANDS LUMBER AND HOME CENTER, INC., ET AL.
FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
236, 156 HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE
Christopher J. Roy, Sr. Chris J. Roy, Sr. Law Office, L.L.C.
Counsel for Plaintiffs/Appellants: Rosana Scott Vanburen
Blanche P. Wallace Kimberly Yvonne Guidy
C. Gaiennie, III Gaiennie Law Firm, L.L.C. Counsel for
Plaintiffs/Appellants: Rosana Scott Vanburen Blanche P.
Wallace Kimberly Yvonne Guidy
F. Vilar Aaron L. Green Paul Boudreaux, Jr. Vilar &
Green, L.L.C. Counsel for Defendants/Appellees: Sutherland
Building Material Centers, L.P. Wesco Insurance Company
composed of Sylvia R. Cooks, Shannon J. Gremillion, and
Phyllis M. Keaty, Judges.
PHYLLIS M. KEATY JUDGE
party plaintiffs appeal a trial court judgment granting
defendants' exception of prescription and dismissing
their wrongful death claims as prescribed. For the following
reasons, we affirm.
AND PROCEDURAL HISTORY
Porche was injured on September 8, 2008, when he fell at a
lumber store after tripping on the fork portion of a forklift
that was partially obstructing an aisle. He filed suit
against Sutherland Building Material Centers, L.P., and its
liability insurer, Wesco Insurance Company on September 4,
2009, to recover for the damages he sustained a result of the
accident. Porche died on May 23, 2012, and in
January 2013, his mother, Blanche Smith; two sisters, Rosana
Vanburen and Blanche Wallace; and niece, Kimberly Guidry,
filed a motion to be substituted as parties plaintiff in
Porche's personal injury lawsuit. The trial court allowed
the substitution by order dated January 9, 2013. The
substituted plaintiffs (hereafter referred to as
"Plaintiffs")  filed an Amending and Supplemental
Petition in September 2013 wherein they disclosed that Porche
had no children and was not married at the time of his death.
In that pleading, Plaintiffs further alleged that Smith had
assigned to the remaining Plaintiffs:
[A] one fourth undivided interest each in her cause of
action for the damages incurred by the deceased as a result
of the accident alleged in the original petition, and each
of the petitioners now owns a one fourth undivided interest
in the cause of action set forth in the original petition.
order dated September 9, 2013, the trial court allowed the
Amending and Supplemental Petition to be filed and granted
Plaintiffs' request to strike from their motion to
substitute parties the allegation that Porche died "from
natural causes unrelated to the injuries for which he claimed
damages in his Petition."
November 2017, Defendants filed peremptory exceptions of
peremption and prescription in which they asserted that any
potential wrongful death cause of action arising in favor of
Plaintiffs with regard to Porche had prescribed, as no such
claim had been brought within one year of his May 2012 death.
In response, Plaintiffs filed a Third Amending and
Supplemental Petition in which they alleged that the injuries
Porche suffered in the accident made subject of this lawsuit
"caused or contributed to" his death and that
Porche's mother, Smith, suffered damages and incurred
expenses as a result of Porche's death. Therein,
Plaintiffs disclosed that Smith died testate in 2014 and that
by a judgment rendered in her succession, they were sent into
possession of Smith's "right, title, and interest in
the survival action and the wrongful death action which
Blanche Scott Smith had arising out of the injuries sustained
by Wilbert S. Porche at the Sutherland store on or about
September 8, 2008." Plaintiffs also filed a memorandum
in opposition to Defendants' exceptions wherein they
alleged that they had amended and supplemented their petition
to set forth a wrongful death claim that was not prescribed
because it arose from the accident that served as the basis
for Porche's timely filed original petition.
conclusion of a March 5, 2018 contradictory hearing, the
trial court granted Defendants' exception of prescription
in open court and dismissed Plaintiffs' wrongful death
claim. Plaintiffs appeal, arguing in their sole
assignment of error that the trial court erred ...