Recent Development by C.B. Poche
In 1982, Leon Malone was killed in a vehicular accident. Malone's mother filed a wrongful death and survival action against the driver of one of the vehicles involved in the accident, the driver's liability insurer, the Bienville Parish Police Jury, and the Department of Transportation and Development. As the decedent's parent, the plaintiff's standing to bring the action was based on Malone's having not been married at the time of his death and not having any children. The defendants filed an exception of no cause of action, alleging that Malone was the father of a child, Amber Tullis, who as a primary beneficiary under article 2315.2, and the plaintiffs were thus precluded from bringing the wrongful death and survival action. Malone allegedly fathered the child by Peggy Tullis Malone, whom Malone married after the birth of the child. Malone was not named as the child's father, either to the mother's doctor or on the birth certificate or birth announcements, and the child was not given Malone's surname. Malone did not visit the hospital or pay any of the child's medical bills. During the three months that Malone and Peggy Tullis Malone lived together after their marriage, Amber lived with her maternal grandmother. Malone never contributed to Amber's support, nor did he do the things that a parent ordinarily does with a child. When Malone was arrested for child abuse, however, he allegedly admitted to a sheriff's deputy that Amber was his child and that he would never intentionally do anything to hurt her. When Peggy Tullis filed for divorce, Malone did not contest her allegation that Amber was a child born of their marriage. Malone paid $150 for Amber's support after he was released on probation for criminal neglect of family, and after Malone's death, Amber received social security benefits by virtue of her status as a child of the deceased. Finding the evidence clear and convincing that Malone was Amber's father, the trial court maintained the exception of no right of action and dismissed the plaintiff's suit. The Louisiana Court of Appeal for the Second Circuit affirmed, holding that “a parent of a tort victim has no right of action to recover wrongful death or survival damages when the tort victim is also survived by an informally acknowledged illegitimate child, even though the child has not judicially asserted filiation timely.” Although the defendants had argued successfully in the lower courts that Amber was Malone's informally acknowledged illegitimate child, they abandoned this argument in their brief to the Louisiana Supreme Court, arguing instead that Amber was legitimated by the subsequent marriage of Malone and Amber's mother and Malone's informal acknowledgement of Amber as his child. The Louisiana Supreme Court reversed, holding that the defendants had not established by clear and convincing evidence that Malone had informally acknowledged Amber as required for legitimation by the parents' subsequent marriage, and thus, that the plaintiff's suit was not precluded. Chatelain v. State, 586 So. 2d 1373 (La. 1991).
About the Author
C.B. Poche.
Citation
66 Tul. L. Rev. 2057 (1992)