The Supreme Court of Louisiana’s recent decision in Rismiller v. Gemini Ins. Co., 2020-0313 (La. 12/11/20), will impact all stages of civil litigation. In Rismiller, the Court held that, like biological and adopted children, children who have been given in adoption fall within the enumerated class of beneficiaries who may bring a wrongful death and/or survival action arising from the death of their biological family members.
Rismiller was the result of a motor vehicle collision that caused the deaths of Richard Stewart and his two minor children, George and Vera Cheyanne Stewart. Wrongful death and survival actions were filed by Mr. Stewart’s wife, Lisa Watts Stewart (who was not the biological mother of George and Vera), and their two adult children, Daniel Goins and David Watts, both of whom had been given up for adoption as minors.
The insurer of the driver who allegedly caused the accident, Gemini Insurance Company, filed an exception of no right of action as to the claims of Mr. Goins and Mr. Watts for the deaths of their biological father and half-siblings. Gemini argued that because Mr. Goins and Mr. Watts had been given in adoption and filiated to another, they did not fall within the enumerated class of beneficiaries who may bring a wrongful death or survival action under La. Civ. Code arts. 2315.1 and 2315.2. The 7th Judicial District Court overruled the exception, and the question eventually worked its way to the Supreme Court.
Supreme Court Justice Boddie, presiding ad hoc, authored the majority opinion. Applying the “clear and unambiguous wording” of La. Civ. Code arts. 2315.1 and 2315.2, the Court held that biological children given in adoption were “children of the deceased” and “brothers of the deceased” who were permitted to bring wrongful death and survival actions arising from deaths of their biological father and half-siblings.
Based on this decision, children previously given up in adoption would retain the right to bring wrongful death and survival actions for both their biological parent and their adoptive parent. This will affect the questions asked in depositions, written discovery requests, fact investigations, and signatures sought and required in settlements. Practitioners will need to inquire as to any and all children of the decedent, both biological and adopted, and should consider filing an exception of failure to join a necessary or indispensable party if any of the decedent’s children are not named plaintiffs to the suit.
One question left unanswered by the Court, but which was raised in Justice Crichton’s dissenting opinion, is how damages would be apportioned in the event that both the biological and adoptive parents of a child given in adoption are killed by the fault of others. Justice Crichton opined that the majority’s holding would “double the rights of the child,” who would collect twice the amount of damages as a child not given in adoption. According to Justice Crichton, this “absurd” outcome is contrary to the intent of the law “which is to equalize children given in adoption unless otherwise provided.” As this question was not before the Court in Rismiller, Louisiana practitioners will be left to debate it amongst themselves until such time as the Court elects to untangle that Gordian Knot.