Donna Boling VS Rodney L. Hoyt, Louisiana Service, L.L.C., Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, Travelers Casualty Company of Connecticut, Travelers Casualty Insurance Company of America, Travelers Commercial Casualty C

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NUT DESIGNATED FOR PUBLICATION i STATE OF L UISIANA COURT QF APPEAL FIRST CIRCUIT 2011 CA 2249 DONNA BOLING V VERSUS RODNEY L HOYT LOUISIANA SERVICE LLC TRAVELERS CASUALTY AND SURETY COIVLPANY TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA TRAVELERS CASUALTY COMPANY OF CONNECTICUT TRAVELERS CASUALTY INSURANCE COMPANY F AMERICA TRAVELERS MERCIAL COM CASUALTY C TRAVELERS MPANY COMMERCIAL INSURANCE COMPANY TRAVELERS HOME AND MARINE INSURANCE COMPANY THE TRAVELERS INDEMNITY COMPANY UF AMERICA THE TRAVELERS INDEMNITY COMPANY QF CONNECTICUT THE TRAVELERS INDEMNITY COMPANY TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA AND TRAVELERS PROPERTY CASUALTY INSURANCE C IVIPANY DATE OFJUDGMENT IUN 8 201 ON APPEAL FROM THE TWENTY JUDICIAL DISTRICT COURT SECOND NUMBER 2010 DIVISION G PARISH OF ST TAMMANY 14965 STATE OF LOUISIANA HONORABLE WILLIAM J CRAIN JUDGE Inemesit U Boyle O James M Williams Metairie Louisiana Edward J Womac Jr New Orleans Louisiana Counsel for Plaintiff Appellant Donna Boling Individually and on Behalf of Shelby T Boling and Cooper E Boling minor children of Donna Boling Thomas J William F Eppling Counsel for Defendants pellees A Kelly Rodney L Hoyt Louisiana Service LLC Travelers Casualty and Surety Sara P Scurlock Company Travelers Casualty and Surety Company of America Metairie Louisiana Travelers Casualty Company of Travelers Connecticut Casualty Insurance of America Company Travelers Commercial Casualty Travelers Commercial Company Insurance Company Travelers Home and Marine Insurance Company The Travelers Indemnity Company of rica Am The Travelers Indemnity of The Connecticut Company Travelers Indemnity Company Travelers Property Casualty Company of s Traveler America Property Casualty Insurance Company and Louisiana 1Vlachinery Company LLC BEFORE WHIPPLE KUHN AND GLJIDRY JJ Disposition AFFIRMED a 2 KLJHN J This appeal is taken from a judgment sustaining a peremptory exception raising the objection of no right of action and dismissing the claims of Shelby T I Boling and Cooper E Boling with prejudice Finding no error in the trial court s ruling we aff rm FACTUAL AND PROCEDURAL BACKGROUND According to the petition as amended Jessica Ricks was involved in a car multi collision that occurred in St Tammany Parish on Apri125 2010 and she ultimately died as a result of the injuries she sustained therein The chain of events leading to Ms Ricks death allegedly began when a vehicle driven by Rodney L Hoyt while in the course and scope o his employment slammed into the rear of the vehicle in which Ms Ricks was a passenger On August 4 2010 Donna Boling Ms Ricks mother filed the instant suit for wrongful death and survival action damages against multiple defendants including Mr Hoyt and Travelers Property Casualty Company of America his s mployer insurer defendants Defendants answered the suit generally denying the allegations of the petition Thereafter Ms Boling filed an amending petition in which she added as additional plaintiffs her minor children Shelby T Boling and Cooper E Boling whom she alleged were entitled to damages for th wrongful death of Ms Ricks Although not specifically alleged in the amending petition Ms Boling asserts on appeal that Shelby and Cooper are siblings of the decedent Ms Ricks In any event Mr Hoyt and Travelers filed a peremptory exception raising the objection of no right of action on the grounds that Shelby 3 and Cooper had no right of action to bring a wrongful death suit under La C art 2315 2 Following a hearing the trial court sustained the exception and dismissed the claims of Shelby and Cooper with prejudice Further the trial court refused to allow Ms Boling an opportunity to amend the pleadings in order to add a claim under La C art 2315 on behalf of Shelby and Ms Boling now Cooper appeals arguing the trial court erred both in sustaining the peremptory exception raising the objection of no right of action and in refusing to allow her an J opportunity to amend the pleadings DISCUSSION The peremptory exception pleading the objection of no right of action challenges whether the plaintiff has an actual interest in bringing action the See La C art 927 Estate of Mayear v Glover OS La App 1 st P 6 A 2031 Cir 1 31 So 1090 1093 writ denied 10 La 4 b 31 So 10 12 3d 0312 1 10 3d Whether a person has a right of action depends on whether the particular lOb9 plaintiff belongs to the class in whose favor the law extends a remedy In other words the exception questions whether the plaintiff has an interest in judicially enforcing the right asserted Whether a plaintiff has a right of action is a question of law Therefore it is reviewed de novo on appeal To prevail the defendant must show that the plaintiff does not possess an interest in the subject matter ofthe suit Estate ofMayeaux 31 So at 1093 3d The legislature and courts of this state have never recognized the principle that every loss of a personal relationship resulting from a delict is compensable recognizing damnum absque injuria Moreover it has been recognized both 4 historically and jurisprudentially that the wrongful death and survival actions are wholly creatures of the legislature Prior to the legislative enactment of the wrongful death and survival actions Louisiana courts held that the general tort principle embodied in La C art 2315 that e act whatever of man that very causes damage to another obliges him by whose fault it happ to repair it did ned not allow for such actions 0 Estate of Burch v Hancock Holding Company 09 1839 La App 1st Cir 5 39 So 742 745 10 7 3d 46 In order to recov on a wrongful death claim a plaintiff must fall within r the class of persons designated as a beneficiary under La C art 2315 2 Turner v Busby 03 La 9 83 So 412 416 Furtherinore courts 3444 04 2d have no authority to judicially expand the classes of beneficiaries to which the law grants the remedy of the wrongful death and survival actions Estate ofBurch 39 3d So at 749 Louisiana Civil Code article 2315 delineates the classes of A 2 individuals who have a right to bring a wrongful death action as follows 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 artd sisters of the deceased or any of them rfhe left no spouse child or parent survivrng 4 The surviving grandfathers and grandmothers of the deceased or any of them if he left no spouse child parent or sibling surviving Emphasis added n appeal Ms Boling concedes that Shelby and Cooper are precluded by La C art 231 S from bringing a wrongful death claim as a result of their sister 2 s death since Ms Ricks was survived by her mother See La C art 2315 3 A 2 S Nevertheless she argues that she should have been allowed to amend the pleadings pursuant to La C art 934 to assert a claim on their behalf for general tort P damages under La C art 2315 Specifically she alleges that Shelby and Cooper are entitled to damages for th own loss of consortium loss of service loss of ir society and emotional distress that arose due to the effect this tragedy had on their mother Ms Boling She further contends that the children damages arise s directly from the loss of their mother ability to care for them as she would have if s this tragedy had not occurred ln making this argument Ms Boling relies on Green u Southern Transplant Service Inc 97 La App 4th Cir 8 1133 97 13 698 So b99 which she claims allows the exact type of damages sought by Shelby 2d and Cooper Ms Boling raised these same arguments in the proceedings below where they were rejected by the trial court In so ruling the trial court gave the following oral reasons for judgment Interesting argument I have reviewed this the claims of the plaintiff essentially derive from either the death of the victim or ofthe predeath sic act that caused the death of the victim so th are y derivative of acts that predate the death or the death itself Those acts are covered I believe under the Code of Civil Procedure m I sorry under the Civil Code as either survival or wrongful death acts and those statutes provide exclusive categories The Supreme Court has said that the categories that are allowed under those survival and wrongful death statutes are exclusive and allow thos persons listed in the class to recover appropriate damages Louisiana Code of Civil Pracedure article 934 provides that When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition the judgment sustaining the exception shall order such amendment within the delay allowed by the court If the grounds of the abjection raised through the exception carulot be so removed or if the plaintiff fails to comply with the order ta amend the action claim demand issue or theory shall be dismissed 6 to the exclusion of any other class or if a person is in a class above s they exclude as to all people below I think that what this case involves ve You cited the Green allow La C art 2315 In the Green case that court did damages But as I read the Green case case those damages derived from a post death act of mishandling the corpse basically So that is a that a separate and distinct act that s occurred after the death that I think distinguishes it from the facts of this case Therefore I believe that the exception of no right of action has merit I going to grant that m I do not see because the law precludes these claimants from making the claims that are asserted I do not see any reason why time should b allowed to amend so I not going to do that I going m m to grant the exception of no right of action Based on our review ofthe law and facts we adopt the trial court analysis and find s no error in its ruling sustaining the peremptory exception raising the objection of no right ofaction and denying Ms Boling an opportunity to amend As conceded by appellant on appeal Shelby and Cooper the purported siblings of Ms Ricks have no right of action for her wrongful death because Ms Ricks was survived by her mother Under La C art 2315 siblings ofthe 3 A 2 decedent have a right to recover wrongful death damages only in instances where the decedent is not survived by a spouse child or parent Nor is there any merit in Ms Boling argument that she should have been s allowed to amend the pleadings pursuant to La C P art 934 Ms Boling contends that if allowed to amend she can assert a viable loss of consortium claim on behalf of her children due to her diminished ability to provide them with parental attention services and society as a result of Ms Ricks death However we reject 7 this argument because such a loss of consortium claim on behalf of Shelby and Cooper is derivative of Ms Boling wrongful death claim s Consequently allowing the siblings of Ms Ricks the right to recover loss of consortium damages under these circumstanc would in effect be allowing an s additional layer of recovery for her wrongful death to a class of beneficiaries precluded from recovery circumvent the intent beneficiaries entitled r to La C art by A 2 2315 Hence such recovery would legislature of the bring wrongful in providing exclusive classes of Courts lack the authority to death claims expand the classes of ben to which the law grants the remedy of the ficiaries wrongful death action Estate of Burch 39 So at 749 Accordingly the trial 3d court was not required to allow Ms Boling an opportunity to amend the pleadings given that there is no means by which a right of action for loss of consortium on behalf of Shelby and Cooper allow amendment would be 0 a can be established under the facts of this vain and useless act case To See American InternationaC Gaming Associatron Inc v Louisiana River Gaming Commrssion 00 boat 2864 La App Z 1 st Cir 9 11 02 83 2d So S 18 By their nature derivative claims do not come inta existence until someone else is injured See Ferrell v s zd Fireman Fu Insurance Company 302 96 La 97 1 7 696 2d So 569 574 As a matter of law loss of consortium claims are derivative of the primary victim injuries See s Ferrell 696 So at 576 Guidry v Millers Casualty Insurance Company O l 2d 0001 La App 1 st Cir 6822 So 675 680 n see alsa La R 13 Loss of consortium 21IO2 2d 5 S 5106 4 D in the context of the parent relationship means loss of aid assistance and companionship child or loss of affection saciety and service See Lee v IISAA Casualty Insurance Company 540 Sa2d IQ83 1092 La App lst Cir writs denied 542 So 514 515 La 1989 Turner v 93 2d Lyons 03 La App 4th Cir 1 867 So 13 21 writ denied 04 La 0185 04 28 2d 0741 04 14 5872 So 530 2d 8 v CONCLUSION For the reasons assigned the judgment ofthe trial court is affirmed All costs of this appeal are to be paid by appellant Donna Boling AFFIRMED 0 a 9

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