Comment by Jason R. Johanson
A case recently surfaced in the Louisiana state court system that once again brought to the forefront the underlying problems caused by the Hubgh court's decision to break with the civil law interpretative system of the French general clause and its embrace of the common law statutorily specified counterpart. It is around the facts of this case that this Comment revolves.
Joseph Mazoue was diagnosed with mesothelioma in November of 1996. Mazoue sued his employer and others in tort, alleging that his exposure to asbestos was the cause of his mesothelioma. Shortly after the commencement of litigation, Mazoue died intestate, and Jeanne Mazoue Marsh, his surviving daughter, was substituted as the proper party plaintiff. Marsh continued Mazoue's original action as a survival action under article 2315.1. In August 2001, the parties reached a settlement, and the court entered the fact of settlement into the record.
Prior to any funding of the settlement, however, Pamela Carol Leahy Salvaggio and William Edward Leahy II, both children of a predeceased child of Mazoue, filed a Petition to Intervene. Salvaggio's petition was tendered in both her capacity as administratrix of the Succession of Joseph A. Mazoue and individually, whereas Leahy petitioned to intervene solely in his individual capacity. The Petition to Intervene asserted several theories about why the intervenors were the proper parties plaintiff to continue the survival action or, in the alternative, why they needed to be involved in the litigation due to their interest in the litigation proceeds, which they argued would undoubtedly devolve upon the succession.
Two issues immediately surfaced upon the filing of the Petition to Intervene. The simpler of the two is the question of who is allowed to maintain the survival action: the succession representative or the article 2315.1 beneficiary. Under a strict interpretation of the language of article 2315.1, the answer seems obvious, and, it is true, courts have generally interpreted the article consistently with regard to the proper party plaintiff to maintain the survival action. This Comment will touch upon this issue only insofar as necessary to bring the reader up to speed with regard to current Louisiana jurisprudence.
A more problematic offshoot of the aforementioned issue, and the more important one for purposes of this Comment, is whether a succession representative is allowed to intervene in a survival action when there exists an article 2315.1 beneficiary. Even though a succession representative may not be allowed to maintain the survival action, he or she may still be allowed to intervene because of the succession's interest in the proceeds of the litigation.
This in turn raises another sub-issue: who receives the proceeds from the litigation? Does the article 2315.1 beneficiary receive the proceeds? Or does the succession? Even if the succession representative is not allowed to maintain the survival action, is he or she allowed to intervene to protect the proceeds thereof? Do the proceeds of the litigation devolve upon the succession through the succession articles, or is there some residual answer in article 2315.1 that statutorily provides for the resolution of this question? Neither the language of article 2315.1 nor that of the Civil Code succession articles provides a straightforward answer to this issue. Therefore, it will be necessary to concentrate on several competing legal theories to try to resolve this issue.
Part II of this Comment will first consider, inasmuch as it is relevant, the legislative history of article 2315.1 (and of article 2315 in general), a history that provides much insight into the intent of the Legislature as to how it has wanted the survival action to evolve. This Part will place special emphasis on the ever-changing definition of property that the Louisiana Legislature has used in relation to the rights of action that arise under both articles 2315 and 2315.1. Part III will consider the jurisprudence that has given rise to the Mazoue dilemma. Contemporaneously, it will focus on the interplay between article 2315.1 and the corresponding articles in the Louisiana Code of Civil Procedure that govern the substitution of parties in a survival action to determine whether the answer may be found therein. Part IV will wade through the relevant Civil Code articles on succession to highlight the incessant tug-of-war between these articles and article 2315.1. It is a tension that is only underscored by the overall theme of this Comment that is developed in Part V: the tension between the civilian interpretative system of the general clause, of which the survival action is but a small part, and the anglo-legislative statutory approach to the same causes of action. Should (or even can?) Louisiana simply revert to a civilian approach to negligence actions, an approach similar to that found in the country that inspired our Civil Code and embodied in its interpretation of French Code Civil article 1382? Or have we come too far along the common law path to turn back in the face of issues that may still be resolved by statute? To state it in its simplest terms: will Louisiana's article 2315.1 continue to expand statutorily every time a new issue arises, or is it possible to return to the minimalist approach of the original French Code Civil article 1382?
About the Author
Jason R. Johanson. J.D. candidate 2003, Tulane Law School; M.A. 1996, University of Virginia; B.A. 1993, University of California, Santa Barbara.
Citation
77 Tul. L. Rev. 737 (2003)