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Lindsay v. Ports America Gulfport, Inc.

Court of Appeals of Louisiana, Fourth Circuit

December 4, 2019


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-01610, DIVISION "C" Honorable Sidney H. Cates, Judge

          David R. Cannella Christopher C. Colley Jeremiah S. Boling BARON & BUDD, P.C. COUNSEL FOR PLAINTIFFS/APPELLEES

          Richard P. Sulzer Robert E. Williams, IV Nicole M. Loup SULZER & WILLIAMS, LLC Jacques P. DeGruy Constance C. Waguespack PUSATERI, JOHNSTON, GUILLOT & GREENBAUM, LLC Kevin J. LaVie Robert J. Barbier PHELPS DUNBAR LLP COUNSEL FOR DEFENDANTS/APPELLEES

          James M. Williams Inemesit U. O'Boyle Zachary R. Smith CHEHARDY SHERMAN WILLIAMS MURRAY RECILE STAKELUM & HAYES, LLP and Brian King Jason F. Giles Anthony J. Milazzo, III James E. Courtenay Justin A. Reese The King Law Firm, LLC COUNSEL FOR INTERVENORS/APPELLANTS

          Court composed of Judge Terri F. Love, Judge Regina Bartholomew-Woods, Judge Paula A. Brown


         In this wrongful death suit, intervening plaintiffs, Reginald Rivers and Lyndon Rivers ("Intervenors"), appeal the judgment of the trial court maintaining the peremptory exception of prescription in favor of defendants and plaintiffs and dismissing the petition for intervention with prejudice. Intervenors seek to relate the date of the filing of their petition back to the date of the timely filing of the original petition against defendants. The trial court granted the exception of prescription finding that based on Stenson v. City of Oberlin, 10-0826 (La. 3/15/11), 60 So.3d 1205, La. C.C.P. art. 1041 applies to the petition for intervention; and, pursuant to the statute, the prescriptive period had lapsed.

         We find Stenson does not apply and analysis under La. C.C.P. art. 1041 is not required where the parties share a single cause of action. To the extent Intervenors are able to establish with clear and convincing evidence that they are children of the decedent, we find the trial court's dismissal of the petition to intervene premature. Should Intervenors establish a familial relationship, meeting the requirements of La. C.C.P. art. 2315.2, jurisprudence directs that the wrongful death suit filed by plaintiffs interrupts prescription as to all of decedent's children. Accordingly, we vacate the judgment granting the exception of prescription and remand the matter to allow Intervenors an opportunity to establish decedent's paternity and then consistent with that determination render judgment on the exception of prescription.


         According to the pleadings, in or around 1994, Reginald Rivers met Earl T. Lindsay, Jr. and informed him that he and his brother Lyndon Rivers were the biological children of Earl T. Lindsay, Sr. From 1994 on, Earl T. Lindsay Jr. and Reginald Rivers allegedly carried on a relationship as half-siblings.

         On February 18, 2015, Earl T. Lindsay, Sr. died from asbestos-related lung cancer. His children Earl T. Lindsay, Jr. and Joycelyn Butler (collectively "Plaintiffs") filed a wrongful death action against Defendants Georgia Pacific, LLC, Hartford Accident and Indemnity Company, SSA Gulf, Inc., and Ports of America Gulfport, Inc. F/K/A P&O Ports Gulfport, Inc. (collectively "Defendants"). Plaintiffs filed their petition for damages on February 17, 2016, as the surviving descendants of the decedent.

         Reginald Rivers and Lyndon Rivers (collectively "Intervenors") subsequently became aware of the Plaintiffs' wrongful death action and attempted to join their half-siblings in the lawsuit to recover damages. Intervenors allege that Plaintiffs downplayed the existence of any litigation and/or refused to allow the Intervenors to join them in the suit. In an effort to preserve their rights, the Intervenors filed a petition for intervention on May 1, 2017, re-asserting and reaffirming the allegations, exhibits, and assertions contained in Plaintiffs' original petition for damages.[1] Intervenors also alleged that they were the biological children of the decedent.

         Defendants filed extensive exceptions to intervention, including exceptions based on prescription. Plaintiffs also filed a peremptory exception of prescription adopting and re-asserting Defendants' arguments. In December 2017, the

         Intervenors filed a First Amending and/or Supplemental Petition for Intervention and to Establish Paternity. Discovery was permitted and evidence was submitted purporting that (1) the decedent publicly held himself out as the biological father of Intervenors; (2) Plaintiffs knew of their familial relationship with Intervenors; and (3) ...

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