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Porche v. Lumber

Court of Appeals of Louisiana, Third Circuit

February 13, 2019

WILBERT S. PORCHE
v.
SUTHERLANDS LUMBER AND HOME CENTER, INC., ET AL.

          APPEAL 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

          George C. Gaiennie, III Gaiennie Law Firm, L.L.C. Counsel for Plaintiffs/Appellants: Rosana Scott Vanburen Blanche P. Wallace Kimberly Yvonne Guidy

          Mark 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

          Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

          PHYLLIS M. KEATY JUDGE

         Substituted 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.

         FACTS AND PROCEDURAL HISTORY

         Wilbert 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.[1] 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") [2] 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.

         By 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."

         In 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.

         At the 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.[3] Plaintiffs appeal, arguing in their sole assignment of error that the trial court erred ...


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