Watkins
v.
Exxon Mobil Corp.

Not overruled or negatively treated on appealinfoCoverage
COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANAMay 29, 2013
117 So. 3d 548 (La. Ct. App. 2013)

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  • holding that the time period is prescriptive

    Summary of this case from Coleman v. OFS, Inc.

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    Summary of this case from Watkins v. Exxon Mobil Corp.

No. 2012–C–0477.

2013-05-29

Patricia WATKINS v. EXXON MOBIL CORPORATION.

Jeremiah A. Sprague, Timothy J. Falcon, Falcon Law Firm, Marrero, LA, Frank M. Buck, Jr., New Orleans, LA, for Plaintiff/Relator. Martin A. Stern, Raymond P. Ward, Valeria M. Sercovich, Glen M. Pilié, Adams and Reese LLP, Richard S. Pabst, Michael R. Phillips, Louis M. Grossman, Julie Parelman Silbert, Brittany L. Buckley, Kean Miller LLP, Molly Steele, Barbara Bossetta, Edward L. Fenasci, Curry & Friend, PLC, Ronald A. Johnson, Bettye A. Barrios, Gavin H. Guillot, Johnson Johnson Barrios & Yacoubian, Chadwick J. Mollere, S. Suzanne Mahoney, Nichole M. Gray, Johnson Gray McNamara, LLC, Roy J. Rodney, Jr., Rodney & Etter, LLC, New Orleans, LA, Mary S. Johnson, Jill T. Losch, Johnson Gray McNamara, LLC, Mandeville, LA, Thomas M. McNamara, Johnson Gray McNamara, LLC, Lafayette, LA, for Defendants/Respondents.



Jeremiah A. Sprague, Timothy J. Falcon, Falcon Law Firm, Marrero, LA, Frank M. Buck, Jr., New Orleans, LA, for Plaintiff/Relator. Martin A. Stern, Raymond P. Ward, Valeria M. Sercovich, Glen M. Pilié, Adams and Reese LLP, Richard S. Pabst, Michael R. Phillips, Louis M. Grossman, Julie Parelman Silbert, Brittany L. Buckley, Kean Miller LLP, Molly Steele, Barbara Bossetta, Edward L. Fenasci, Curry & Friend, PLC, Ronald A. Johnson, Bettye A. Barrios, Gavin H. Guillot, Johnson Johnson Barrios & Yacoubian, Chadwick J. Mollere, S. Suzanne Mahoney, Nichole M. Gray, Johnson Gray McNamara, LLC, Roy J. Rodney, Jr., Rodney & Etter, LLC, New Orleans, LA, Mary S. Johnson, Jill T. Losch, Johnson Gray McNamara, LLC, Mandeville, LA, Thomas M. McNamara, Johnson Gray McNamara, LLC, Lafayette, LA, for Defendants/Respondents.
(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).

PAUL A. BONIN, Judge.

We granted a writ of certiorari to consider Patricia Watkins' challenges to the correctness of the trial court's granting of the oil company defendants' peremptory exceptions of peremption and of no cause of action. The defendants argued and the trial court found that Ms. Watkins' survival action was extinguished because it was perempted and that she has no cause of action for exemplary damages in connection with either her wrongful death or her survival action claims. After a de novo review of the legal issues presented, we conclude that the one-year period to bring a survival action under La. Civil Code art. 2315.1 is a prescriptive period and not a peremptive period.

The exceptions were filed by Exxon Mobil Corporation, Exxon Mobil Oil Corporation, Humble, Inc., Chevron U.S.A., Inc., Shell Oil Company, Marathon Oil Company, OXY U.S.A., Inc., and BP America Production Company.


After our de novo review of the ruling on the no cause of action respecting exemplary damages, we conclude that with respect to Ms. Watkins' claim for such damages arising in connection with her wrongful death claim the trial ruling is correct, but that with respect to her claim in connection with her survival action, she should be permitted to amend her petition under La. C.C.P. art. 934 to state a cause of action.

Accordingly, we vacate that portion of the judgment which sustained the exception of peremption on her survival action claim, we amend the portion of the judgment sustaining the exception of no cause of action respecting the survival action to permit Ms. Watkins on remand to amend her petition, and, as amended, affirm the portion of the judgment sustaining the exception of no cause of action. We remand the matter with an instruction to the trial court. We explain our decision in greater detail in the following Parts.

This is the judgment dated February 29, 2012.


This judgment was rendered on February 17, 2012 and disposed of numerous other matters as well, for none of which any party has sought review. We note, parenthetically, Ms. Watkins filed an appeal from that judgment in proceedings before us numbered 2012–CA–0918. On August 2, 2012, on the oil company defendants' motion, we dismissed that appeal “[b]ecause the judgment from which an appeal is sought is an interlocutory judgment which has not been designated as final, seeLa. C.C.P. art. 1915 B(1) and Favrot v. Favrot, 10–0986 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1103.” We, however, retained the record on appeal in connection with the issuance of the writ of certiorari.


I

James Hicks, the father of Ms. Watkins, died on December 27, 1986. On June 17, 2011, she filed a survival action under La. Civil Code art. 2315.1 and a wrongful death action under La. Civil Code art. 2315.2. She also demanded exemplary damages under former La. Civil Code art. 2315.3 in connection with her claims which are based on Mr. Hicks' alleged exposure to naturally occurring radioactive material (NORM) while he was cleaning scale out of pipes used in the production of oil.

Former La. Civil Code art. 2315.3 provided: “In addition to general and special damages, exemplary damages may be awarded, if it is proved that plaintiff's injuries were caused by the defendant's wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances. As used in this Article, the term hazardous or toxic substances shall not include electricity.” This Article was in effect from September 4, 1984 until April 16, 1996. See Anderson v. Avondale Industries, Inc., 00–2799, p. 3 (La.10/16/01), 798 So.2d 93, 96.


For more extensive information about NORM or TENORM (technologically enhanced naturally occurring radioactive materials), see, generally, James R. Cox, Naturally Occurring Radioactive Materials in the Oil Field: Changing the NORM, 67 Tul. L.R. 1197 (1993); Grefer v. Alpha Technical, 02–1237 (La.App. 4 Cir. 8/8/07), 965 So.2d 511. Although the human senses cannot detect its presence, prolonged exposure to TENORM drastically increases the chances of developing certain diseases such as cancer and has devastating effects on plant and animal life. Cleaning TENORM is both expensive and dangerous. One source of TENORM is the mud that collects against the inside of pipes used for extracting oil and natural gas. When these pipes are cleaned, the mud can contaminate the land it falls onto.


In response to Ms. Watkins' petition, the oil company defendants filed, among other exceptions, a peremptory exception of peremption against Ms. Watkins' survival action and a peremptory exception of no cause of action against her claim for exemplary damages. As already noted, the trial court granted both exceptions.

II

In this Part we explain why the one-year period for bringing a survival action is prescriptive and not peremptive.

A

The right to recover for an injury to a person caused by an offense or quasi-offense who dies “shall survive for a period of one year from the death of the deceased.” La. Civil Code art. 2315.1 A. Ms. Watkins acknowledges that her lawsuit was not filed within the one-year period, but asserts that her suit is nonetheless timely despite the expiration of more than one year from the death of her father until her suit was filed by application of the principle contra non valentem. The oil company defendants, however, argue that the principle cannot be applied because the one-year period is peremptive. See State Through Div. of Admin. v. McInnis Bros. Const., 97–0742, p. 3 (La.10/21/97), 701 So.2d 937, 939 “One type of suspension which may apply to a prescriptive period but which, by its very nature, does not apply to a peremptive period, is the doctrine of contra non valentem agere nulla currit praescriptio.”).

Ms. Watkins replies that although jurisprudence predating the 1986 amendment to the Civil Code did hold that the delay for bringing a survival action is peremptive, the 1986 amendment adding Article 2315.1 classifies the delay for bringing an action as a “prescriptive period” and that the change in the Article expresses the legislature's intent to change the delay from a peremptive to a prescriptive period. The specific language in the 1986 amendmentrelied upon by Ms. Watkins is currently found in La. Civil Code art. 2315.1 C: “The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.” (emphasis added)

The current version of La. Civil Code art. 2315.1 was enacted as Article 2315.3 and then redesignated as Article 2315.1 in 1986. See Historical and Statutory Notes under La. Civil Code art. 2315.1 (West 2010). The exemplary damages provision quoted in footnote 4, ante, was enacted as Article 2315.1 and re-designated in 1986 as Article 2315.3. See id.


B

“Peremption is a period of time fixed by law for the existence of a right.” La. Civil Code art. 3458. “Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” Id. The most notable, and here dispositive, difference between prescription and peremption is that “liberative prescription merely prevents the enforcement of a right by action, it does not terminate the natural obligation; peremption, however, destroys or extinguishes the right itself.” Borel v. Young, 07–0419, p. 9 (La.11/27/07), 989 So.2d 42, 49.

Peremption is a construct of Louisiana jurisprudence that did not appear in the Civil Code until January 1, 1983, when it was added as La. Civil Code art. 3458 by Acts 1982, No. 187, § 1. See Needom v. Robein, 08–0318, p. 10 (La.App. 4 Cir. 2/18/09), 7 So.3d 30, 36. But the addition of Article 3458 did not change pre-existing law; it did, however, codify the existing jurisprudence. SeeLa. Civil Code art. 3458 cmt. (a). The jurisprudential standard can be found in cases dating back to Guillory v. Avoyelles Ry. Co., 104 La. 11, 15, 28 So. 899, 901 (1900):

When a statute creates a right of action, and stipulates the delay within which that right is to be executed, the delay thus fixed is not, properly speaking, one of prescription, but it is one of peremption. Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to say, after the limit of time expires the cause of action no longer exists; it is lost.


Thus, as a general proposition, solely under a Guillory analysis, when the codal article by which the right of action is created also stipulates the delay within which the right is to be exercised is fixed, the delay would be peremptive and not prescriptive.

Notably, survival and wrongful death actions are “special legislation providing for the survival of a right of action in favor of named classes of survivors and also creating a cause of action in favor of those same classes of persons for wrongful death.” Levy v. State Through Charity Hosp. of Louisiana at New Orleans Bd. of Adm'rs, 253 La. 73, 77, 216 So.2d 818, 819 (La.1968). “That these rights are wholly the creatures of the Legislature is recognized historically and jurisprudentially.” Id. Because the right would not exist absent the legislation, Article 2315.1 creates a right of action. Article 2315.1 also stipulates that the right is to be exercised in one year.

But Guillory does not set forth the complete analysis. See Pounds v. Schori, 377 So.2d 1195, 1199–1200 (La.1979) (“We agree that each case of this nature should be considered on its merits, bearing in mind that the main consideration is the purpose sought to be achieved by the particular limitation period involved”); see also Guidry v. Theriot, 377 So.2d 319, 325 (La.1979) (stating that in Pounds the supreme court “held that peremption,as differentiated from prescription, is a matter to be determined by legislative intent revealed by the statute in its entirety, including the purpose sought to be achieved.”). In determining whether the fixed period is prescriptive or peremptive, additional inquiries should be made: first, whether the statute designates itself as prescriptive or peremptive and, second, whether the statute's purpose as a whole would be fulfilled by interpreting it as prescriptive or peremptive. See McInnis Bros. Const., 97–0742, pp. 5–7, 701 So.2d at 941–942;see also Guidry v. Theriot, 377 So.2d at 325.

For the sake of completeness but so as to not distract from the discussion we point out that Guidry v. Theriot was expressly repudiated on other grounds by Louviere v. Shell Oil Co., 440 So.2d 93, 97 (La.1983) with respect to language regarding the interpretation of a prescriptive period for a wrongful death action.


Because the Civil Code in many situations remains silent as to whether a particular time limitation is prescriptive or peremptive, in order to determine whether a limitation is prescriptive or peremptive the courts necessarily “resort[ ] to an exploration of the legislative intent and public policy underlying a particular time limitation, for it is primarily whether the Legislature intended a particular time period to be prescriptive or peremptive that is the deciding factor.” Borel, 07–0419, p. 9, 989 So.2d at 49. “Thus, courts look to the language of the statute, the purpose behind the statute, and the public policy mitigating for or against suspension, interruption or renunciation of that time limit.” Id. And, most importantly for our purposes here, “[w]hat a legislature says in the text of a statute is considered the best evidence of the legislative intent or will.” Id.

C

Thus, we find that the explicit language in Article 2315.1 C, describing the delay as a “prescriptive period,” is the “best evidence” that the legislature intends what it says in the codal article itself. We find support in the view of Professor William Crawford. He observed that “[i]t has been a long-running question as to whether the one-year period for survival provided in C.C. art. 2315.1 is a period of prescription or one of peremption.” Crawford, 12 La. Civ. L. Treatise, Tort Law § 5:9 (2d ed.). He then instructs that “[t]hat question should be considered settled by the enactment of the 1986 version of C.C. art. 2315.1(C), which explicitly refers to the one-year period of survival as a ‘prescriptive period.’ ” Id.

Notably, when 1986 Acts No. 211 emerged from the legislature (and was initially designated as Article 2315.3) there were no identifiable paragraph subsections such as A, B, or C. These designations were added by the Louisiana State Law Institute under its statutory revisions authority.


The characterization by the legislature that the period fixed in Article 2315.1 is prescriptive is “clear, unambiguous, and leads to no absurd consequences.” La. Civil Code art. 9. Under such circumstances we are to apply it “as written” and may search no further for the legislature's intent. See id.; see also Arabie v. CITGO Petroleum Corp., 10–2605, p. 5 (La.3/13/12), 89 So.3d 307, 312.

III

We now address with specificity the decisions upon which the oil company defendants based their contention that the one-year limitation for a survival action is peremptive and explain why we find that the these decisions do not control the determination of the proper classification of the limitation period.

A

We acknowledge that of primary importance to the defendants' position (and to the district judge's decision) is our 1966 holding in Succession of Roux where we found that the limitation period for bringing survival and wrongful death actions is peremptive. See Succession of Roux v. Guidry, 182 So.2d 109, 110 (La.App. 4th Cir.1966) (“We are firmly of the opinion that it is one of peremption.”).

We note in passing that our holding in Succession of Roux relied upon the first circuit's holding in Miller v. American Mut. Liability Ins. Co., 42 So.2d 328, 330 (La.App. 1st Cir.1949), the reasoning of which was subsequently repudiated by the supreme court's decision in Guidry v. Theriot, supra. More importantly, however, the supreme court in Guidry v. Theriot decided that the one-year limitation period for a wrongful death action is prescriptive and thus by implication overruled the conclusion set forth in Succession of Roux. See Guidry v. Theriot, 377 So.2d at 325.Succession of Roux did not involve a survival action, but was restricted to a wrongful death action. Succession of Roux, 182 So.2d at 111.

The case was resolved on abandonment grounds, not on whether the statute called for prescription or peremption. The facts of Miller are substantially similar to the facts in Guidry v. Theriot: in each case, the victim of a tort who filed suit, died before the suit was resolved, and the tort victim's survivors waited more than one year before continuing the decedent's suit. Miller held that the new plaintiffs' attempt to substitute themselves as plaintiffs, less than three years after the death of the decedent, was perempted. See Miller, 42 So.2d at 331.Guidry v. Theriot, however, held that the substituted plaintiffs in a suit brought by the decedent were entitled to the abandonment period found in La. C.C.P. art. 561 within which to take a step in the prosecution of the suit. 377 So.2d at 324.


We also find unpersuasive the defendants' argument that Guidry v. Theriot, which in any event pre-dates the 1986 amendment which described the limitation period as prescriptive, holds that survival actions are subject to peremption. Guidry v. Theriot emphasized the separateness and distinctiveness between a survival action and a wrongful death action and concluded that the filing of one action will not interrupt the running of prescription of the other. Id., 377 So.2d at 326. But Guidry v. Theriot at no point explicitly decides that the limitation period for a survival action is peremptive; the closest Guidry v. Theriot actually comes to announcing such a result is its stating that “[w]e deem it reasonable that the legislature would be concerned about the interval during which a potential defendant might be vulnerable to a survival action and therefore foreclosed the issue by providing an express limitation.” Id., 377 So.2d at 326. The Guidry v. Theriot court was careful not to rule directly on the statute's being prescriptive or peremptive because such a determination was not necessary for the holding of the case. While deeming it reasonable for a later court to interpret the delay as a peremptive period, the court limited its holding to survival actions in which the decedent has already instituted suit during his lifetime. See Guidry v. Theriot, 377 So.2d at 325.

B

We are not unmindful that the first circuit holds that the one-year limitation in a survival action is peremptive and not prescriptive. See Barber v. Employers Ins. Co. of Wausau, 11–0357, p. 18 (La.App. 1 Cir. 6/28/12), 97 So.3d 454, 469 (holding, “we conclude that the survival actions are perempted”). And we are aware that both the second and fifth circuits have described the limitation period as peremptive in decisions in which we find such description to have been unnecessary to the outcomes. See Adams v. Asbestos Corp., 41,028 (La.App. 2 Cir. 5/17/06), 930 So.2d 342, and Courtland v. Century Indem. Co., 00–333 (La.App. 5 Cir. 10/18/00), 772 So.2d 797. These three decisions, however, make no mention of the 1986 amendment to the Civil Code adding Article 2315.1 C and instead rely on the 1979 decision Guidry v. Theriot, supra, interpreting Civil Code art. 2315 as it existed then.

The fifth circuit in Courtland referred to the delay in Article 2315.1 as peremptive; however, such reference was in passing, no authority was cited for such a position, and, from the facts as stated, it appears that the parties conceded that the delay was peremptive. The defendants argued that the claim was perempted, and the plaintiffs argued that the peremptive period did not apply. See Courtland, 00–333, pp. 5–6, 772 So.2d at 799. In Courtland, a sandblaster was diagnosed with silicosis; he filed suit in Texas; and, while his suit was pending in Texas in 1997, he died. Id., 00–333 p. 4, 772 So.2d at 798. Mr. Courtland's widow and three children filed suit in Louisiana in 1999, citing Guidry v. Theriot, supra, and arguing that their suit was a continuation of Mr. Courtland's original action and that the one-year period provided by Article 2315.1 was inapplicable to suits in which the tort victim instituted an action during his lifetime. Id., 00–333 pp. 4–6, 772 So.2d at 798–799. The fifth circuit reviewed the supreme court's reasoning in Guidry v. Theriot that the 1960 enactment of the Code of Civil Procedure and the simultaneous amendment to Civil Code art. 2315 expressed a legislative intent to make tort actions no longer abate at the death of the victim when the action was instituted during the lifetime of the victim. Id., 00–333 pp. 7–8, 772 So.2d at 799–800. The court held that when a tort victim has not instituted an action in Louisiana into which his survivors can be substituted, the survivors' action is governed by Article 2315.1, as opposed to the provisions on abandonment. Id., 00–333 pp. 8–9, 772 So.2d at 800. No mention was made of the 1986 amendment to Civil Code art. 2315.1 describing the delay as “prescriptive.”

In Adams, the plaintiffs' claims had been dismissed with prejudice for failing to state a cause of action. Adams, 41,028 p. 1, 930 So.2d at 343. The appellants argued that the delay in Article 2315.1 is prescriptive rather than peremptive and that the tort victim's filing suit in Texas served to interrupt prescription; however, the record failed to establish that the tort victim had actually filed suit in Texas. Id., 41,028 pp. 2–3, 930 So.2d at 344. The second circuit found that “[t]he one year limitation period applicable to survival actions has been held to be peremptive rather than prescriptive. Jones v. Philco–Ford Corp., 452 So.2d 370 (La.App. 1st Cir.1984), writs denied,457 So.2d 1193 (La.1984)and457 So.2d 1198 (La.1984); and McClendon v. State, 357 So.2d 1218 (La.App. 1st Cir.1978).” This quote is the extent of the court's analysis, and, notably, all authority cited for the position that the delay is peremptive pre-dates the 1986 amendment adding Article 2315.1.

In Barber, the appeal dealt with the wrongful death and survival actions filed on behalf of ten deceased former employees, whose injuries were caused by exposure to toxic materials. Barber, 11–0357 p. 2, 97 So.3d at 458. There, the first circuit found that “[t]he one-year limitation period applicable to survival actions has been held to be peremptive, rather than prescriptive” and cited as authority for its position Adams, supra;Courtland, supra;Jones, supra; and McClendon, supra. Id., 11–0357 pp. 7–8, 97 So.3d at 462. As explained ante, none of the cases cited acknowledges that Article 2315.1 was amended in 1986, and Jones and McClendon even pre-date the amendment.

The first circuit in Barber, unlike the Adams and Courtland decisions, acknowledgedthat the article was amended in 1986; however, it failed to mention the plainly relevant language in Article 2315.1 C, instead finding that “the pertinent time-limit language remained the same” and relying on the statutory interpretation found in Guidry v. Theriot interpreting Article 2315 as it existed in 1979. Id., 11–0357 p. 8, 97 So.3d at 462.

C

In our final analysis, however, we conclude that Guidry v. Theriot could not control the outcome today because of the intervening 1986 amendment to the Civil Code which explicitly describes the one-year limitation period for a survival action as prescriptive. “A long line of jurisprudence holds that those who enact statutory provisions are presumed to act deliberately and with full knowledge of existing laws on the same subject, with awareness of court cases and well-established principles of statutory construction, with knowledge of the effect of their acts and a purpose in view.” Borel, 07–0419, p. 7, 989 So.2d at 48. And that, Borel importantly continues, “when the Legislature changes the wording of a statute, it is presumed to have intended a change in the law.” Id., 07–0419, pp. 7–8, 989 So.2d at 48. As a result of and since the 1986 amendment, the limitation period for a survival action definitively accords with the limitation period for a wrongful death action, both being prescriptive periods.

We note that it is not necessary for us to decide definitively whether the pre-amendment time limitation on a survival action was peremptive in order to reach the result in this matter. Ms. Watkins' survival action only came into being on the date of her father's death which occurred post-amendment. Of course, if Mr. Hicks' right to recover damages for the offense or quasi-offense under La. Civil Code art. 2315 had already prescribed by the time of his death, then Ms. Watkins has no survival action to enforce. See Taylor v. Giddens, 618 So.2d 834, 842 (La.1993); see also In re Brewer, 05–0666, p. 5 (La.App. 1 Cir. 5/5/06), 934 So.2d 823, 827. And there can be no question that that the one-year limitation on Mr. Hicks' action to recover damages under La. Civil Code art. 2315 is a prescriptive and not a peremptive period. SeeLa. Civil Code art. 3492.


IV

We next turn our attention to Ms. Watkins' assertion that her claims for exemplary damages in connection with both her survival and wrongful death claims were wrongly denied. The precise objection made by the defendants and sustained by the trial court was that of no cause of action. SeeLa. C.C.P. art. 927 A(5). See Anderson v. Avondale Industries, Inc., 00–2799 (La.10/16/01), 798 So.2d 93.

With respect to her claim for exemplary damages in connection with her wrongful death claim, the law for us is settled that such damages are foreclosed to her. We have held that exemplary damages could not be awarded in conjunction with a wrongful death action because a wrongful death action compensates a survivor for injuries suffered by the survivor who was not exposed to the toxic materials. See Bulot v. Intracoastal Tubular Services, Inc., 04–1376, p. 6, 888 So.2d 1017, 1021 (La.App. 4 Cir.2004);see also Bailey v. Exxon Mobil Corp., 11–0177, p. 3 (La.App. 4 Cir. 8/31/11), 76 So.3d 53, 55.

With respect to her claim for exemplary damages in connection with her survival claim, we are satisfied that the factual allegations of her petition do not currently support a cause of action. But, unlike exemplary damages on the wrongful death claim, such damages are not per se foreclosed to her. With respect whether Ms. Watkins has a right to demand exemplary damages in connection with her survival action, we find that Bulot controls here. See Bulot, 04–1376, p. 8, 888 So.2d at 1021.

Because of the limited time period in which former Article 2315.3 was in effect, in order for a plaintiff to state a cause of action under the article, the plaintiff must plead facts sufficient to show that her decedent's exposures to radioactive material on the job site between September 4, 1984 (the Article's effective date) and the date of his death resulted in his developing a disease such as cancer. See Bulot, 04–1376, p. 5, 888 So.2d at 1021.

REMAND INSTRUCTION

We remand this matter to the trial court with the following instruction:

The plaintiff shall be permitted to amend her petition under La. C.C.P. art. 934 within thirty days of the finality of this judgment in order to remove the grounds for the objection and thereby state a cause of action for exemplary damages related to her survival action under former La. Civil Code art. 2315.3.

DECREE

The portion of the February 17, 2012 trial court judgment under review which sustained the oil company defendants' exception of no cause of action with respect to exemplary damages is amended in part to permit the plaintiff to amend her petition to remove the objection within thirty days of the date of the finality of this judgment, and, as amended, we affirm.

The judgment of February 29, 2012, which sustained the oil company defendants' exception of peremption, is vacated.

We remand to the trial court for further proceedings in accord with our instructions.

JUDGMENT OF FEBRUARY 17, 2012 AMENDED IN PART AND, AS AMENDED, AFFIRMED AND REMANDED; JUDGMENT OF FEBRUARY 29, 2012 VACATED AND REMANDED TOBIAS, J., concurs and assigns reasons.
TOBIAS, J., concurs and assigns reasons.


I respectfully concur and assign reasons.

I.

I first note, lest someone overlook the issue, that we are not deciding that the plaintiff can recover from any defendant for damages related to TENORM or NORM. We are only deciding the issues of whether La. C.C. art. 2315.1 provides a prescriptive or peremptive period and whether the plaintiff's petition states a cause of action for exemplary damages.

Noting the history of the discovery of TENORM as set forth in Grefer v. Alpha Technical, 02–1237, pp. 1–6 (La.App. 4 Cir. 3/31/05), 901 So.2d 1117, 1124–26, it appears that the plaintiff will have a difficult time proving that it is more likely than not that Mr. Hicks came into contact with TENORM while working at an oilfield pipe cleaning operation before his 1986 death. Approximately 27 years after Mr. Hicks' death, it is certainly questionable that records still exist to show that oilfield TENORM-contaminated pipe was cleaned at a site that Mr. Hicks frequented and that Mr. Hicks' illness was more likely than not caused by TENORM and not some other thing or reason.

Secondly, my view of the issues before us is significantly colored by the history of article 2315.1, which, in my view, makes it clear that the issue of whether article 2315.1 is prescriptive or peremptive is an exceedingly close question.

Although it may be premature to determine whether La. C.C. art. 2315.1A is peremptive and not prescriptive, I find the issue ripe for decision because a definitive interpretation of the codal article will determine whether the parties must proceed with further extensive and expensive litigation.

II.

Although the Louisiana Supreme Court has indicated that “legislators are presumed to know the law,” State ex rel. Varnado v. Louisiana Highway Commission, 177 La. 1, 7, 147 So. 361, 362 (La.1933), I find as a general principle that when the legislature chooses one word over another in a law, the word used means exactly what an ordinary definition of that word means. A court, in my view, should generally give the generally accepted definition to a word (La. R.S. 1:2–3; La. C.C. art. 9), and if the legislature meant something else, then it can amend the law and change the word. To me, prescription should mean prescription and not mean peremption.

In my study of the issue presently before us, unlike the majority, I attach more significance to the legislative and jurisprudential history of article 2315.1. That history begins with La. C.C. art. 2315, where the survival action was first created in the Revised Civil Code of 1870.

Article 2315 of the Revised Civil Code of 1870 provided:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the minor children and widow of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, for the space of one year from the death. [Emphasis supplied.]
Amendments in 1884 amended and reenacted the article to read as follows:


Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the minor children or widow of the deceased, or either of them, and in default of these, in favor of the surviving father and mother, or either of them, for the space of one year from the death. The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child, or husband or wife, as the case may be.


A 1908 amendment amended and reenacted this article to read as follows, in pertinent part:

Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children or widow of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving brothers and sisters or either of them, for the space of one year from the death; provided, that should the deceased leave a widow together with minor children, the right of action shall accrue to both the widow and minor children; provided further, that the right of action shall accrue to the major children only in those cases where there [is] no surviving widow or minor child or children.


The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters as the [case] may be. [Emphasis supplied.]


In 1918, an amendment changed this article to read the same as the 1908 version, except that the words “widow” and “surviving widow” were replaced with “surviving spouse.”

A 1932 amendment amended and reenacted this article to read as follows:

Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children, including adopted children, or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving brothers and sisters, or either of them, for the space of one year from the death; provided that should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and minor children; provided further, that the right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children.


If the above right of action exists in favor of an adopted person, such right of action shall survive in case of death in favor of the children or spouse of the deceased, or either of them, and in default of these in favor of the surviving adoptive parents, or either of them, and in default of any of the above persons, then in favor of the surviving children of the adoptive parents, or either of them, and in default of these in favor of the surviving father and mother of the adopted person, or either of them, and in default of these, then in favor of the surviving brothers and sisters of the adopted person, or either of them, for the space of one year from the death.


The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters or adoptive parent, or parents, or adopted person, as the case may be. [Emphasis supplied.]


Section 2 of the amendatory Act of 1932 repealed all laws or parts of laws that may have been in conflict.

The 1948 amendment amended and reenacted this article to read as follows:

Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of his action shall survive in case of death in favor of the children, including adopted children and children given in adoption, or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving blood brothers and sisters, or either of them, for the space of one year from the death. However, should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and the minor children. The right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children.


If the above right of action exists in favor of an adopted person, it shall survive in case of death in favor of the children or spouse of the deceased, or either of them, and in default of these in favor of the surviving adoptive parents, or either of them, for the space of one year from the death. However, this right of action shall survive in favor of the blood parent or parents to the exclusionof the adoptive parent or parents when at the time of the adoption the adopted was a major, or emancipated minor whose adoption was effected without the consent of the blood parent or parents evidenced in the act of adoption. In default of these, it shall survive in favor of the surviving blood brothers and sisters of the adopted person, or either of them, for the space of one year from the death.


The survivors above mentioned may also recover damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters or adoptive parent, or parents, or adopted person, as the case may be. [Emphasis supplied.]


Section 2 of the amendatory act that once again repealed all laws or parts of laws in conflict therewith.

La. Acts 1960, No. 30, § 1, amended and reenacted the article and article heading to read as follows:

Art. 2315. Liability for acts causing damage; survival action


Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.


The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.


The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.


As used in this article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father and mother by adoption, respectively. [Emphasis supplied.]


Other sections of the amendatory act of 1960, in addition to specifically repealing a number of articles, again repealed all laws or parts of laws in conflict of inconsistent with the act and made the act effective 1 January 1961, contingent upon the adoption of the Code of Civil Procedure [La. Acts 1960, No. 15].

La. Acts 1982, No. 202, amended Article 2315 to read as follows:

Art. 2315. Liability for acts causing damage; survival action


Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.


Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person.


The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.


The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.


As used in this article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father and mother by adoption, respectively. [Emphasis supplied.]


The 1984 amendments to article 2315 substituted “damages” for “damage” in the article heading and added in the third paragraph, a second sentence:

As used in this Paragraph, property damages may include expenses or monetary obligations necessarily incurred by the obligee on account of such offense or quasi-offense; however, if the obligee is survived by any beneficiary enumerated in the following Paragraph of this Article, such expenses or obligations shall be recoverable by said beneficiaries.
In the third sentence of the fourth paragraph, the word “the” following the words “right to recover” was deleted. Pursuant to the statutory revision authority of La. R.S. 24:253, the Louisiana State Law Institute made the following paragraph and subparagraph designations to Article 2315, as amended in 1984:


Art. 2315. Liability for acts causing damages; survival action


A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.


B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person.


C. (1) The right to recover damages to property caused by an offense or quasi-offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.


(2) As used in this Paragraph, property damages may include expenses or monetary obligations necessarily incurred by the obligee on account of such offense or quasi-offense; however, if the obligee is survived by any beneficiary enumerated in the following Paragraph of this Article, such expenses or obligations shall be recoverable by said beneficiaries.


D. (1) The right to recover all other damages caused by an offense or quasi-offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of:

(a) the surviving spouse and child or children of the deceased, or either such spouse or such child or children;


(b) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and


(c) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.


(2) The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased.


(3) A right to recover damages under the provisions of this Paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.


E. As used in this article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father and mother by adoption, respectively. [Emphasis supplied.]


La. Acts 1986, No. 211, amended this article and enacted new La. C.C. arts. 2315.3 (the survival action) and 2315.4 (the wrongful death action). Act 211 severed the provisions dealing with the survival action and the wrongful death action from article 2315 and transferred the language into those new articles. Pursuant to La. Acts 1986, No. 211, Article 2315.3, as originally enacted, provided the following:

Art. 2315.3. Survival Action


If a person who has been injured by an offense or quasi-offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi-offense, shall survive for a period of one year from the death of the deceased in favor of:


(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children;


(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving; and


(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent living.


In addition, the right to recover medical expenses and funeral expenses only may be urged by the decedent's succession representative in the absence of any class of beneficiary set out in the preceding Paragraph.


The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.


As used in this Article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father, and mother, by adoption, respectively. [Emphasis supplied.]


Articles 2315.3 was redesignated as article 2315.1 pursuant to the statutory revision authority of the Louisiana State Law Institute to as follows:

Art. 2351.1. Survival Action


A.
If a person who has been injured by an offense or quasi-offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi-offense, shall survive for a period of one year from the death of the deceased in favor of:


(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children;


(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving; and

(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.


B.
In addition, the right to recover medical expenses and funeral expenses only, may be urged by the decedent's succession representative in the absence of any class of beneficiary set out in the preceding Paragraph.


C.
The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.


D.
As used in this Article, the words “child”, “brother”, “sister”, “father”, and “mother” include child, brother, sister, father, mother by adoption, respectively. [Emphasis supplied.]


This is the version of the statute that was in effect at the time of Mr. Hicks' passing and is the law applicable to the cause of action at issue in this case.

For completeness, the post–1986 amendments are as follows:
A 1987 amendment to article 2315.1, in paragraph B, substituted “all damages for injury to the decedent, his property or otherwise, caused by the offense or quasi offense,” for “medical expenses and funeral expenses only”.
Art. 2351.1. Survival Action
A. If a person who has been injured by an offense or quasi-offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi-offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children;
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving; and
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
B. In addition, the right to recover all damages for injury to the decedent, his property or otherwise, caused by the offense or quasi offense, may be urged by the decedent's succession representative in the absence of any class of beneficiary set out in the preceding Paragraph.
C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
D. As used in this Article, the words “child”, “brother”, “sister”, “father”, “mother” include child, brother, sister, father, mother by adoption, respectively.
Article 2315.1 was last amended in 1997. The 1997 amendments include: (a) in paragraph A, dehyphenated “quasi offense” following “offense or” twice in the introductory paragraph, in subparagraph A(3), substituted “; and” for the period at the end of the subparagraph, and added subparagraph (4); (b) in paragraph B, substituted “deceased” for “decedent” and “deceased's” for “decedent's”; (c) in paragraph D, deleted “and” preceding “mother” and inserted “, ‘grandfather’, and ‘grandmother’ ” following “mother” in two instances; and (d) added paragraph E. Additionally, pursuant to the statutory revision authority of the Louisiana State Law Institute, a period was substituted for the punctuation at the end of subparagraphs A(1) to (3) and “and” was deleted from the end of subparagraph A(3); and in paragraph B, “Paragraph A” was substituted for “the preceding Paragraph”. Article 2315.1 currently reads:
Art. 2315.1. Survival Action
A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or child surviving.
B. In addition, the right to recover medical expenses and funeral expenses only, may be urged by the deceased's succession representative in the absence of any class of beneficiary set out in Paragraph A.
C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
D. As used in this Article, the words “child”, “brother”, “sister”, “father”, “mother”, “grandfather”, and “grandmother” include child, brother, sister, father, mother, grandfather, grandmother by adoption, respectively.
E. For purposes of this Article, the words “child”, “brother”, “sister”, “father”, “mother”, “grandfather”, and “grandmother” include child, brother, sister, father, mother, grandfather, grandmother by adoption, respectively.

Louisiana courts have previously held the above emphasized language of the former article 2315 and/or the present article 2315.1 A to be peremptive. See, e.g., Barber v. Employers Ins. Co. of Wausau, 11–0357, pp. 7–9 (La.App. 1 Cir. 6/28/12), 97 So.3d 454, 462–63;Adams v. Asbestos Corp., Ltd., 41,028, pp. 4–5 (La.App. 2 Cir. 5/17/06), 930 So.2d 342, 344–45;Courtland v. Century Indemnity Co., 00–333, p. 10 (La.App. 5 Cir. 10/18/00), 772 So.2d 797, 801;Jones v. PhilcoFord Corp., 452 So.2d 370, 372 (La.App. 1st Cir.1984); Harris v. Guardian Funds, Inc., 425 So.2d 1322, 1324 (La.App. 4th Cir.1983); McClendon v. State, 357 So.2d 1218, 1223 (La.App. 1st Cir.1978); Marvin v. Toye Bros. Yellow Cab. Co., 214 So.2d 196, 197 (La.App. 4th Cir.1968); Succession of Roux v. Guidry, 182 So.2d 109, 110 (La.App. 4th Cir.1966); Miller v. American Mut. Liability Ins. Co., 42 So.2d 328, 220 (La.App. 1st Cir.1949); see also Ashcroft v. Louisiana Coca–Cola Bottling Co., Ltd., 658 F.Supp. 772 (E.D.La.1987). This is not necessarily an unreasonable interpretation because (a) the former article 2315 did not use the word, or a derivative of the word, “prescription;” (b) the language sounds peremptive because the legislature states that the cause of action “shall survive for a period of one year;” and (c) the cause of action for damages belonging to the decedent could have been asserted by the deceased before his death, but was not, and the decedent's survivors by statute were granted the right to assert it for one year from the decedent's death. Stated another way, the article suggests that a cause of action for the injured person could be asserted during the injured person's lifetime (subject to the La. C.C. 3492 prescriptive period) and the injured person's survivors had but one year to assert the cause of action following the deceased's death if the injured person did not timely assert the cause of action during his/her lifetime.

See Guillory v. Avoyelles Ry. Co., 104 La. 11, 15, 28 So. 899, 901 (1900); and Guidry v. Theriot, 377 So.2d 319, 325 (La.1979) (repudiated on other grounds in Louviere v. Shell Oil Co., 440 So.2d 93, 97 (La.1983)).

III.

La. C.C. art. 2315.1C states:

The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article. [Emphasis supplied.]
As noted above, it became law by virtue of by La. Acts 1986, No. 211, § 2, and became effective on 15 August 1986. Article 2315.1C appears to have been taken from La. C.C. art. 2315D (3); article 2315D was repealed when article 2315.1 was added to the Civil Code.


The question then becomes whether the legislature by using the words “prescriptive period” in article 2315.1C consciously intended to overrule the jurisprudence that had interpreted the language of article 2315A as a peremptive period?

A more extensive examination of the legislative history of La. Acts 1986, No. 211, shows the following:

First, that which became Act 211 began its legislative journey as Senate Bill No. 130. The Louisiana Legislative Council's comments to the bill, as filed, notes in pertinent part:

New law retains the prior law.


* * *

New law deletes from C.C. Art. 2315 those provisions in the prior law regarding the survival of an action for damages for damages and damages for wrongful death but adds C.C. Arts. 2315.3 and 2315.4....


Ambiguity exists in what the comment “ New law retains the prior law” means. That is, does the word “law” refer solely to the statutory law or does it reference both statutory law and jurisprudential interpretation of the statutory law? If the Legislative Council meant that no change was made in the literal language of the first paragraph of article 2315.1, then one could presume that the addition of the word “prescriptive” to the third paragraph of article 2315.1 retained the old law. But if the Legislative Council meant both statutory law and jurisprudential interpretation thereof, then the addition of the word “prescriptive” in the third paragraph changed the law. One would presume that the Legislative Council researched the jurisprudence. I have personal doubts as to whether the Legislative Council knew when drafting the comment that the prior interpretation of article 2315D(1) was that the one year period was peremptive; I think the author of the comment merely meant that no change was made in the literal language of the law. By using the words “prescriptive period defined in this Article,” I think the author of the bill understood the one year period to be merely prescriptive without consideration of the jurisprudence that interpreted the language as peremptive. My review of the published comments and summaries attached to the bill as at it proceeded through the legislative process sheds no light on the issue.

Actually, article 2315.3 in the act.

Ibid.

I choose to rely on the literal language used in the law, to-wit, “prescriptive” meant prescriptive and not peremptive. The law was changed.

When the Louisiana State Law Institute redesignated the originally enacted article 2315.3 as article 2315.1, it added the letter designations to the paragraphs, which obfuscated the interconnection of the four paragraphs in the original article. This reinforces the argument that a change was made in the law to make article 2315.1 prescriptive as opposed to peremptive.

IV.

Regardless of whether article 2315.1 is prescriptive or peremptive, the error of the trial court once it sustained the exception of no cause of action was not following the mandates of La. C.C.P. art. 934 and directing that the plaintiff be permitted to amend the petition to allege when Mr. Hicks' cancer was diagnosed, when Mr. Hicks came into contact with TENORM, and the source of the TENORM after 3 September 1984, the date that the former Civil Code article on exemplary damages became effective. I agree with the remand of this matter to the trial court to require the plaintiff to allege more facts concerning Mr. Hicks' diagnosis of cancer and the dates between 4 September 1984 and 27 December 1986 when Mr. Hicks 566could have come into contact with TENORM.