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Guidry v. Theriot - 377 So. 2d 319 (La. 1979)


Regardless of whether an action is brought for damages sustained by the tort victim, before or after the victim expires, the prescriptive period of bringing the wrongful death action is one year after date of the demise or within one year of interruption of the prescriptive period if an interruption is shown.


Plaintiffs, a patient and her husband, had initiated a malpractice action during her lifetime in 1974. Four years later, following the patient's death, the husband, Mr. Guidry filed a supplemental petition in the pending action in which he sought to substitute himself as party plaintiff in a survival action. Mr. Guidry's supplemental petition also asserted a wrongful death action on his own behalf. Three days later, a second supplemental petition was filed asserting survivorship and wrongful death claims on behalf of decedent patient's three children. Defendants, physician and insurer, responded to the pleadings by filing exceptions and no cause of action. The trial court sustained the exceptions as to the children and dismissed both their survival and wrongful death demands. The exceptions filed in opposition to the husband's claims were dismissed, which dismissal is a non-appealable interlocutory judgment. On appeal, the Court of Appeal, First Circuit, held that the survival action had been improperly dismissed because the one year period was inapplicable when the tort victim files suit prior to his or her death. The appellate court so held upon finding that once the victim files suit on his or her own behalf and later dies, the beneficiaries named under  to La.C.C. Article 2315 are required only to substitute themselves as party plaintiffs in accordance with Article 801 within the five year abandonment period stipulated in LSA-C.C.P. Article 561. The Court of Appeal also held that the one year prescriptive period of La.C.C. Article 3536, applied to the children's wrongful death action, and dismissed their wrongful action as prescribed. From this ruling the children have appealed. Defendants have also appealed seeking reversal of the Court of Appeal judgment which refused to dismiss the survival action of the children.


Were the actions barred by the prescriptive period?




The Supreme Court of Louisiana found that the survival and wrongful death actions were separate a distinct causes of actions. Although both actions arose from a common tort, they were separate because they arose at a different time. The survival action occurred at the commission of the tort, and therefore, survived as a valid action for up to five years. The wrongful death action did not arise until the patient died, and therefore, the children were required to institute suit within one year. The oCurt affirmed the appellate court's refusal to dismiss the wrongful death action because once the initial malpractice action was instituted by the patient, the prescriptive period one-year period no longer applied and the applicable abatement and substitution were controlling.

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