CARTER v. STEAK HOUSE STEAKS, INC. No. 12-394.
107 So.3d 97 (2012)
Darnell and Michelle CARTER, Individually and as Natural Parents of Kyris Carter (Deceased) v. STEAK HOUSE STEAKS, INC., James Nations, Jr., and XYZ Insurance Company.
Court of Appeal of Louisiana, Third Circuit.
Rehearing Denied November 28, 2012.
Pius A. Obioha, Alistair A. Adkinson, Michal J. Harris, Law Offices of Pius A. Obioha & Associates, LLC, New Orleans, LA, for Plaintiffs/Appellants, Darnell and Michelle Carter.
Richard E. King, Jennifer L. Simmons, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendants/Appellees, James Nations, Jr. and Steak House Steaks, Inc.
Matthew J. Ungarino, Ungarino & Eckert L.L.C., Metairie, LA, J. Michael Nash, Ungarino & Eckert L.L.C., Shreveport, LA, for Defendant/Appellee, Steak House Steaks, Inc.
Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
Plaintiffs, Darnell and Michelle Carter, individually and as natural parents of Kyris Carter (deceased), appeal the judgment of the trial court sustaining an exception of no right of action in favor of Defendants, James Nations, Jr. and Steak House Steaks, Inc. For the following reasons, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
This matter is before the court on an exception of no right of action. On April 25, 2011, Darnell and Michelle Carter (Plaintiffs) filed a petition for wrongful death and survival action damages against James Nations, Jr., Steak House Steaks, Inc., and XYZ Insurance Company (Defendants). Plaintiffs' petition alleged damages in connection with the drowning of their son, Kyris Carter, on October 3, 2010.
ASSIGNMENTS OF ERROR
On appeal, Plaintiffs complain that the trial court erred: (1) in sustaining Defendants' exception of no right of action because they "are the proper parties to bring the claims that were asserted in this lawsuit[,]" and, (2) in dismissing Defendants from this suit.
Plaintiffs' petition asserted that when Kyris drowned while attending a party, he was not married and had no children. Therefore, as Kyris' parents, Plaintiffs asserted that they are the proper parties to bring wrongful death and survival actions pursuant to La.Civ.Code arts. 2315.1 and 2315.2.
Defendants, however, asserted that they neither hosted the ill-fated party nor owned the property where said party was held. Therefore, Defendants argued through their filing of a peremptory exception of no right of action that they are not the proper parties to be named as Defendants in these actions.
Louisiana Code of Civil Procedure Article 681 provides that "an action can be brought only by a person having a real or actual interest which he asserts." Pursuant to La.Code Civ.P. art. 927(A)(6), a defendant may challenge whether a plaintiff has such a real or actual interest in an action.
The classes of beneficiaries for wrongful death and survival actions are granted by special statute to specified survivors in order of exclusionary preference. Louisiana Civil Code Articles 2315.1 and 2315.2 state that, along with certain other relatives, the parents of a person who is unmarried and childless, and whose death was caused by the fault, offense, or quasi-offense of another, may bring wrongful death and survival actions within one year of the decedent's death. Specifically, La. Civ.Code art. 2315.1 provides:
Further, La.Civ.Code art. 2315.2 provides:
Our supreme court explained the peremptory exception of no right of action in Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-2272, 10-2275, 10-2279, 10-2289, pp. 6-7 (La.10/25/11),
The peremptory exception of no right of action is a procedural device to challenge whether a plaintiff is the proper party to file an action, not whether a defendant is the property party against whom an action can be filed. Plaintiffs clearly have a right of action pursuant to La.Civ.Code arts. 2315.1(A)(2) and 2315.2(A)(2). Plaintiffs are the proper parties to bring these wrongful death and survival actions. We find that the trial court legally erred in sustaining Defendants' peremptory exception of no right of action.
For the foregoing reasons, the judgment of the trial court is reversed. The case is remanded to the trial court for further proceedings. Costs are assessed to Defendants/Appellees, James Nations, Jr. and Steak House Steaks, Inc.
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