By Tyler Moore Kostal

Recently, the Louisiana Supreme Court granted a writ application to the Fourth Circuit Court of Appeal in Watkins v. Exxon Mobil Corporation, et. al.—an action involving plaintiff’s damages from decedent’s potential NORM (i.e., naturally occurring radioactive material) exposure. The central issue before the court is whether the one-year period to bring a survival action under Louisiana Civil Code Article 2315.1 is peremptive or prescriptive. Prior to the Fourth Circuit’s ruling in Watkins, the First, Second, Third, and Fifth Circuits weighed in on the issue and concluded that the one-year period is peremptive and thus not subject to suspension or interruption. Because the Fourth Circuit reached the opposite conclusion, holding that the one-year period in Art. 2315.1 is prescriptive, not peremptive, there is now a clear split on the issue in the circuit courts of appeal. Should the court find the one-year period to be prescriptive, the right to bring a survival action could be extended exponentially, contrary to the longstanding interpretation of the survival statute.

Oral argument is set for Monday, January 27, 2014.