author: | .PER CURIAM. 11 WEIMER, J., pKNOLL, J., |! KIMBALL, Justice, | ^TRAYLOR, J.,

text:
    In re Kelle HINSON-LYLES.
    No. 2002-OB-2578.
    Supreme Court of Louisiana.
    Dec. 3, 2003.
    Rehearing Denied Jan. 16, 2004.

      Schiff Law Corporation, Leslie J. Schiff, Opelousas, Counsel for Applicant.
    Charles B. Plattsmier, Baton Rouge, Daniel A. Webb, New Orleans, Harry J. Philips, Jr., Baton Rouge, Counsel for Respondent.
   ON APPLICATION FOR ADMISSION TO THE BAR

| .PER CURIAM.

This matter arises from a petition by Kelle Hinson-Lyles seeking admission to the Bar of the State of Louisiana. For the reasons that follow, we deny the petition.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In her application to sit for the July 2002 Louisiana bar examination, petitioner disclosed that she was convicted of a felony-sexual offense in 1999. By letter dated June 12, 2002, the Committee on Bar Admissions (“Committee”) notified petitioner that in light of her conviction, she would not be certified for admission to the practice of law. A majority of this court subsequently granted petitioner permission to sit for the bar, subject to the condition that upon her successful completion of the exam, she apply to the court for the appointment of a commissioner to take character and fitness evidence. In re: Hinson-Lyles, 02-1805 (La.7/3/02), 819 So.2d 1027. Petitioner successfully passed the essay portion of the July 2002 bar exam. We thereafter appointed a commissioner to take evidence and report to this court whether petitioner possesses the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana. We also authorized the Office of Disciplinary | ¡>,Counsel to conduct an investigation into petitioner’s qualifications to be admitted to the bar.

Proceedings before the Commissioner

The commissioner conducted a character and fitness hearing on February 18, 2003, pursuant to Supreme Court Rule XVII, § 9(B). The commissioner received documentary evidence and heard testimony given by petitioner and her witnesses. This record reveals that in May 1996, petitioner received an undergraduate degree in business and office education. With the assistance of her father, who was then the Superintendent of the Vernon Parish School Board, petitioner obtained a teaching position at DeRidder High School in Beauregard Parish. In May 1998, as petitioner was completing her second year of teaching at DeRidder High, she began a sexual relationship with M.C., a fourteen-year old student in her ninth-grade English class. Petitioner was twenty-three years of age at this time.

Over a period of approximately six weeks, petitioner spoke with M.C. on the telephone or saw him in person nearly every day. Because M.C. was too young to have a driver’s license, petitioner arranged to pick him up in an alley behind his home and to take him back to her house, where they engaged in sexual intercourse. In addition, petitioner and M.C. drank alcohol supplied by petitioner, and on one occasion, petitioner allowed M.C. to smoke marijuana that he had brought to her home.

On the evening of July 11,1998, petitioner picked up M.C. and brought him back to her house, where they engaged in sexual intercourse. However, unbeknownst to petitioner or M.C., the Beauregard Parish Sheriffs Office had received a report from M.C.’s father that his son was “having a sexual affair with one of his school 13teachers.” The officers agreed to investigate the complaint. Upon arriving at petitioner’s home, the officers knocked on the door and announced themselves. Petitioner turned off the lights in the house and told M.C. to hide. Meanwhile, petitioner dressed and eventually opened the door, telling the officers she had not heard the knocking because she had been washing her hair. The officers asked whether M.C. was in the house; petitioner lied, said that he was not, and denied he had been inside her home. The officers then requested and obtained petitioner’s permission to search the home. M.C. was found hiding in a bedroom closet, underneath a pile of clothes.

Petitioner was arrested and charged with five counts of carnal knowledge of a juvenile and three counts of contributing to the delinquency of a juvenile. On February 25, 1999, pursuant to a plea agreement, the State filed an amended bill of information charging petitioner with two counts of felony carnal knowledge of a juvenile and one count of indecent behavior with a juvenile, also a felony. Petitioner pleaded guilty to the charges in the amended bill of information and was placed on supervised probation for a period of three years with special conditions. State v. Hinson, No. CR-598-98 on the docket of the 36th Judicial District Court for the Parish of Beauregard.

Following her conviction, petitioner was terminated from her position at DeRidder High and she was required to forfeit her teaching certificate to the Louisiana |4State Department of Education. Petitioner’s probation concluded on February 25, 2002, and she has subsequently received an automatic first offender pardon.

At the character and fitness hearing, petitioner admitted she knew her relationship with M.C. was wrong. At the conclusion of the hearing, the commissioner issued detailed findings of fact and conclusions of law and recommended that petitioner be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years.

The Committee timely objected to the commissioner’s recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(B)(3).

DISCUSSION

This court has the exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the Bar of this state. Bester v. Louisiana Supreme Court Comm. on Bar Admissions, 00-1360 (La.2/21/01), 779 So.2d 715. Among other requirements for admission to the Bar, applicants must demonstrate by competent evidence that they have “good moral character and the fitness necessary to practice law in the State of Louisiana.” Supreme Court Rule XVII, § 5(E).

The primary purpose of character and fitness screening is to assure the protection of the public and to safeguard the administration of justice. Supreme Court Rule XVII, § 5(A); In re: Singer, 01-2776 (La.6/12/02), 819 So.2d 1017. The term “good moral character” includes, but is not limited to, the qualities of honesty, fairness, candor, trustworthiness, observances of fiduciary responsibility and of the | Jaws of the State of Louisiana and of the United States of America, and a respect for the rights of other persons. Supreme Court Rule XVII, § 5(B). One of the specific factors to be considered in making a determination of good moral character and fitness is whether the applicant has been convicted, of a felony. Supreme Court Rule XVII, § 5(0(19).

This court has never taken the view that a prior felony conviction will automatically bar an applicant from admission to the practice of law, and we decline to adopt that approach at this time. Rather, we prefer to consider the facts of each case based on the totality of the circumstances which brings the applicant before us. In re: Dileo, 307 So.2d 362 (La.1975). In other words, a felony conviction is simply one of many factors to be considered in determining whether an applicant presently possesses good moral character and fitness.

After reviewing the record developed in this matter, we find that serious character and fitness concerns are present which necessitate the denial of petitioner’s application for admission to the practice of law. Setting aside for a moment the gravity of any felony sexual offense, particularly those involving a juvenile victim, we are extraordinarily troubled by the factual circumstances underlying the crimes of which petitioner was convicted. Petitioner occupied a position of trust as a teacher, yet she knowingly and intentionally breached that trust to gratify her own needs. Knowing full well that her conduct was immoral, inappropriate, and illegal, petitioner nevertheless carried on a sexual affair with her fourteen-year old student for nearly two months. Far from discouraging M.C.’s involvement in the relationship, petitioner in fact fostered and encouraged it. She candidly admitted during the character and fitness hearing that | fithe affair would have continued indefinitely but for the fact that M.C.’s father called the police. On more than one occasion, petitioner supplied alcohol for consumption by a minor child, and she countenanced and permitted his use of marijuana while in her home. Finally, when confronted by law enforcement officials, petitioner lied, denied any involvement with M.C., and hid him in a closet in an effort to avoid detection by the police and his parents. Taken as a whole, we find this conduct is not an isolated instance of poor judgment on petitioner’s part, but is rather evidence that she fundamentally lacks the character and fitness to be admitted to the practice of law. Accordingly, we must reject the commissioner’s recommendation that petitioner be granted the privilege of practicing law in Louisiana.

DECREE

After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner has failed to meet her burden of proving that she has “good moral character” to be admitted to the Louisiana State Bar. Accordingly, it is ordered that Kelle Hinson-Lyles’ petition for admission be and is denied.

WEIMER, J., concurs and assigns reasons.

CALOGERO, C.J., concurs for the reasons assigned by WEIMER, J.

KNOLL, J., additionally concurs and assigns reasons.

KIMBALL and TRAYLOR, JJ., dissent and assign reasons.

11 WEIMER, J.,

concurring.

I find the past criminal conduct of the petitioner reprehensible. However, I believe the per curiam fails to adequately document those facts that led the commissioner to recommend that petitioner be admitted to the bar. At some time in the future, after the lapse of a more substantial period of time from the termination of petitioner’s probation and following an evaluation of petitioner’s intervening conduct, this court might be called upon to consider whether petitioner has been sufficiently rehabilitated. Therefore, for the sake of completeness, the majority opinion should include the following factual findings of the commissioner which were included in a thorough, thirteen-page report to this court:

• Except for defensive postures mandated by defense counsel, petitioner never denied responsibility for the inappropriate relationship with her fourteen-year old student.
• Until the events leading up to petitioner’s guilty plea, she had led an exemplary life with no moral or legal problems whatsoever.
• Petitioner was a model probationer, cooperative, understood she had done wrong, was very remorseful, did more than necessary, wanted to make changes for the good, and owned up completely to her responsibility. Both of her probation officers and counselor confirm all issues were met, she is not a re-offender threat, and all support her application.
1Psychiatric and psychological evaluations by very competent experts in those fields concluded that at the time of the incident petitioner knew right from wrong, but in an immature way. She was a budding adolescent emotionally. She was very naive and inexperienced sexually. (This was her first sexual encounter.) Dr. Harper, psychologist, found no evidence of mental predisposition to re-offend. Dr. Ware, psychiatrist, found a very low risk to re-offend (there being no absolutes).
• All witnesses and exhibits pertinent thereto have a consensus — petitioner presents one of the best examples of how one can change, her maturity is now impressive, she actually has greater resilience than usual in facing ethical demands, she will not re-offend, and they support her application.
• Her only opportunity thus far in the field of law gained her an unqualified recommendation from her employer, a member of the judiciary.
• She is now married, expecting a child, and by all accounts available, is functioning as a normal young married professional.

The commissioner made particular note that at the time of the incident, petitioner was “alone, had no prior experience, [was] immature and at a vulnerable position in her life.” He also concluded that petitioner has done all that can be done to achieve the rehabilitation necessary for admission to the practice of law.

In conclusion, the commissioner stated:

This is a case of past conduct. Based simply on the cold record, the obvious seriousness of the charge, and the self evident interest of society, one would be likely to view with great suspicion an offender’s application to practice law some five years after commission. Therein lies the problem. What to do when, within a five year span, by clear and convincing evidence, an applicant satisfies the requirements of admission.
|3I have not found, or been cited a decision by this Court addressing our particular situation. See generally In re: Ashy, 721 So.2d 859 (La.1998). The Commissioner’s report in the matter In re: Michael Lawrence Bernoudy, Jr., No.2002-OB-2470, pending before this Court, was submitted. Though involved, carnal knowledge was only one of the complaints. Further, the recommendation was greatly influenced by a finding of lack of candor and cooperation on the part of Mr. Bernoudy, Jr., elements not found in the instant matter.
This is a 1998 incident. ... It would be ironic, to say the least, for society to admit to law school, with full disclosure, then . permanently prevent enjoyment notwithstanding passing all scholastic requisites. Further, I don’t feel the level of misconduct herein rises to the level of examples cited. Also, almost five years have elapsed. If she had been in practice and disbarred as a result, she could now apply for reinstatement.

In light of “the totality of circumstances involved,” the commissioner recommended that petitioner be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of two years. The commissioner further recommended that during the period of probation, petitioner be required to provide an affidavit to the Supreme Court Committee on Bar Admissions on a quarterly basis, stating that she has not committed or been accused of any misconduct; otherwise, her probationary period may be extended for an additional two years, or her conditional right to practice may be terminated or she may be subject to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

In summary, while I agree that petitioner should not be admitted to the practice of law at this time, I believe that it is important to chronicle all the facts, both favorable and unfavorable, reflected in the record. Therefore, I respectfully concur in the majority opinion of this court.

CALOGERO, C.J., concurs.

pKNOLL, J.,

concurring.

I agree with the majority that petitioner fundamentally lacks the character and fitness to be admitted to the practice of law. I write separately to express my concern that this case demonstrates the need for an admission rule in tandem with permanent disbarment. In my view, it is a mockery of our rules to allow someone to apply for admission when the undisputed conduct at issue is a recommended ground for permanent disbarment.

Drafting conduct rules governing the legal profession is a very difficult and grave responsibility that we exercise with great caution. However, it is clear in my mind that when conduct is so egregious that it constitutes grounds for permanent disbarment, then the person involved should likewise be permanently prohibited from applying for admission.

The petitioner before us should never be admitted to the practice of law because her admitted and egregious conduct constitutes grounds for permanent disbarment.

|! KIMBALL, Justice,

dissenting.

In my view, this case presents a tragic example of this court’s inability to formulate definitive rules to cover these difficult character and fitness issues. In this particular case, this applicant was allowed to attend law school, notwithstanding the fact that she was on active felony probation and had surrendered her teaching certificate, thereby effectively disqualifying her from her original profession. After successfully completing her studies, this court allowed the applicant to sit for the bar examination, which she passed.

This court’s rules relating to admission to the bar of the State of Louisiana exist to protect the public and to safeguard the administration of justice. The required assessment of moral character and fitness looks to an applicant’s record of past conduct. Admission may be denied on the basis of an applicant’s record of past conduct when such record manifests “a significant deficiency in the honesty, trustworthiness, diligence or reliability of an applicant.” Supreme Court Rule XVII, § 5(B). When an applicant is found to have engaged in conduct which at that time would have constituted grounds for an unfavorable recommendation, then that applicant bears the burden of proof to affirmatively show character rehabilitation and that such inclination or instability is unlikely to recur in the future. Supreme Court Rule XVII, § 5(D).

|PIn the instant case, the record clearly reveals that the applicant overwhelmingly proved that her character has been rehabilitated and that such inclination or instability is unlikely to recur in the future. For example, the supervisor of applicant’s first five months of probation described the applicant as a model probationer and recommended her for admission to the bar. Additionally, the attorney who previously represented applicant in connection with the criminal charges that are the subject of this investigation testified that applicant took responsibility for her actions from the outset and, because the attorney had “the utmost confidence in her,” wrote a strong letter of recommendation to Southern University Law Center and, later, the National Conference of Bar Examiners. He also assisted the applicant in obtaining a position as a law clerk in the Ninth Judicial District Court. A Shreveport psychiatrist who evaluated the applicant opined there is a very low risk that the applicant will commit a sexual offense in the future. The director of the clinical education department at Southern University Law Center who supervised the applicant’s class work testified that the applicant was very dedicated, extremely committed, and worked all the time to make “sure that it’s right.” The judge for whom applicant worked as a law clerk reported that her work has been excellent, that she is very conscientious, and that she gets along well with others in the court. The judge highly recommended the applicant for admission to the bar “regardless of her past situation or the circumstances.” After hearing all the evidence in this case, the commissioner found the applicant understood her past behavior was wrong, was remorseful, and wanted to make positive changes in her life. The commissioner found that psychiatric and psychological evaluations showed applicant knew right from wrong, but in an immature way such that she was emotionally a budding adolescent when the behavior at issue occurred. Finally, the commissioner found that the applicant is now married, expecting a child, and by all ¡¡¡accounts is functioning as a normal young married professional.

Although this appears to be an unusual case with extraordinary facts, it is clear to me that the applicant has produced an impressive amount of evidence proving that she has good moral character and the fitness necessary to practice law in the State of Louisiana. The medical evidence consistently reveals that there is a very low risk the applicant will re-offend. In concluding that this case presents serious character and fitness concerns that necessitate the denial of the petitioner’s application for admission to the practice of law, the majority disingenuously focuses solely on the applicant’s past deplorable conduct and fails to consider or even mention the overwhelming evidence that the applicant has turned her life around. The retired judge appointed as a commissioner by this court to hear evidence in this case found as a matter of fact that the applicant has done all that can be done to achieve the rehabilitation necessary for admission to the practice of law. In reaching its decision to deny the applicant admission, the majority simply ignores the factual findings made by the appointed commissioner.

The case before us illustrates the need for clear rules detailing what conduct will likely prevent an applicant from being admitted to the bar of our state. In my view, potential law students should be given notice of the types of conduct that will probably preclude them from practicing law before they undertake the challenge of law school and, in many cases, incur substantial debt to acquire a legal education. This court should work with Louisiana’s law schools to ensure potential students are given clear information so they can make informed choices.

Under the facts of this particular case, I believe the applicant should be conditionally admitted to the practice of law, subject to a probationary period of two years. As the commissioner found, the applicant has done everything she can to show|4the necessary rehabilitation. Because the applicant has complied with every requirement presently contained in our rules, it is simply unjust to deny her admission at this juncture.

| ^TRAYLOR, J.,

dissenting.

In July of last year, Kelle Hinson-Lyles applied to sit for the Louisiana Bar Examination. Her application was opposed by the Committee on Bar Admissions based upon her three 1999 felony convictions. This Court, in its collective wisdom, allowed the petitioner to take the bar examination, upon the condition that she apply to the court for the appointment of a commissioner to take character and fitness evidence. I opposed allowing the petitioner to take the examination and voted, along with Justices Kimball' and Knoll, to deny her application.

Ms. Hinson-Lyles took and passed the bar examination and subsequently requested the appointment of a commissioner to take character and fitness evidence. The commissioner held a hearing, took evidence, and found that petitioner possessed the -requisite character and fitness to be conditionally admitted to the bar based upon her rehabilitation. This Court now determines that the petitioner should not be admitted to the bar,, even though the only new evidence we have before us supports her conditional admission, as recommended by the commissioner that this Court appointed for that purpose.

I do not take the position that Ms. Hin-son-Lyles possesses the character and fitness required to be admitted to the bar and, in fact, adhere to my previous determination that she should not have been allowed to sit for the bar examination. I do, however, believe that when this Court allows a person to take the bar examination upon condition, and then that person passes the examination and meets the conditions set before them, it is disingenuous for the Court to then, decide that more conditions must be met, especially without stating what those conditions are.

In this case what can the petitioner do that she has not done? Wait and apply later? When or what is the “magic moment” which will show that rehabilitation has | ¡¡occurred? If Ms. Hinson-Lyles applies five years from now, will that be long enough? Ten years? Will she ever be able to show successful rehabilitation? If not, why was she allowed to take the bar examination at all?

Supreme Court Rule XVII contains the factors to be considered when assessing past conduct and rehabilitation in relation to an applicant’s character and fitness to practice law. These factors include the applicant’s age since the conduct, the time elapsed since the conduct, the reliability of the information concerning the conduct, the seriousness of the conduct, factors underlying the conduct, the cumulative effect of the conduct, the applicant’s social contributions, the applicant’s candor and cooperation, the materiality of any omissions or misrepresentations, and the evidence of rehabilitation. Sup.Ct. R. XVII, § 5(D). None of these factors is determinative and all are subjective and give little guidance to either applicants for admission to the bar or to the commissioners we appoint to make findings of fact and determinations of law. In fact, according to these factors, no conduct, including murder, disqualifies a candidate from admission to the bar. This Court must develop definitive rules as to what conduct may be rehabilitated and what conduct is a bar to admission, both to give useful guidance to applicants and to avoid wasting valuable time and resources.

      . In cases in which the Committee has declined to recommend admission based on character and fitness concerns, it has been the court's customary practice to permit the applicant to sit for the bar examination subject to a later determination respecting character and fitness. It will frequently be necessary for this court to appoint a commissioner for the purpose of developing a record upon which we can proceed to make such a determination. The appointment of a commissioner in no way represents a finding by this court that the applicant does, in fact, possess good moral character and fitness.

      .The carnal knowledge of a juvenile charges relate to five separate occasions on which petitioner had sexual relations with M.C.; however, petitioner candidly admitted in a sworn statement that "there’s probably seven or eight, maybe even nine” occasions on which she and M.C. had sex. The contributing to the delinquency of a juvenile charges relate to the occasions on which petitioner gave alcohol to M.C. and allowed him to smoke marijuana in her presence.

      . The indecent behavior charge relates to an occasion on which petitioner and M.C. engaged in oral sexual relations. The district attorney's office dropped the contributing to the delinquency of a juvenile charges.

      . It appears from the record that no administrative proceeding was conducted; rather, petitioner surrendered her teaching certificate as a condition of her guilty plea.

      . We observe that sexual misconduct resulting in a felony criminal conviction is a ground for the permanent disbarment of an attorney who is licensed to practice law in Louisiana. See Guideline 4 of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E.

      . While we afford some deference to the commissioner’s recommendation, making due allowance for the commissioner’s opportunity to observe and evaluate the demeanor of the applicant and the witnesses, the ultimate decision regarding admission rests with this court.


source: Caselaw Access Project

author:
11 VICTORY, J. [, CALOGERO, Chief Justice,
      | VVICTORY, J.,

license: Public Domain

text:
    Raleigh LANDRY and Clailee Aucoin Landry v. AVONDALE INDUSTRIES, INC., et al.
    Nos. 2003-CC-0719, 2003-CC-0993, 2003-CC-1002.
    Supreme Court of Louisiana.
    Dec. 3, 2003.
    Opinion Concurring in Denial of Rehearing Jan. 30, 2004.

      David S- Blank, Scott T. Winstead, Beau E. LeBlanc, King, LeBlanc & Bland, New Orleans, Counsel for Applicant in No. 2003-CC-1002.
    ' Stephen N. Elliott, Francine M. Giugno, Robert A. Knight, Bernard, Cassisa, Elliott & Davis, Metairie, Counsel for Applicant in No. 2003-CC-0993.
    Wendy K. Lappenga, Andrew L. Plauche, Jr., Plauche, Maselli, Landry & Parkerson, New Orleans, Johanna G. King, Richard M. Perles, Gary A. Lee, Lee, Fut-rell & Perles, New Orleans, Samuel M. Rosamond, III, Thomas W. Aycock, Crawford & Lewis, Baton Rouge, Counsel for Applicant in No. 2003-CC-0719.
    Stephen N. Elliott, Francine M. Giugno, Robert A. Knight, Bernard, Cassisa, Elliott & Davis, Metairie, Wendy K. Lappen-ga, Andrew L. Plauche, Jr., Plauche, Ma-selli, Landry & Parkerson, New Orleans, Johanna G. King, Richard M. Perles, Gary A. Lee, Lee, Futrell & Perles, New Orleans, Samuel M. Rosamond, III, Thomas W. Aycock, Crawford & Lewis, Baton Rouge, Geoffrey P. Clement, Gary M. Zwain, Dana D. Anderson-Carson, Du-plass, Zwain, Bourgeois & Morton, Lynn M. Luker, James F. d’Entremont, Arthur W. Stout, III, Deutsch, Kerrigan & Stiles, New Orleans, Susan B. Kohn, Simon, Per-agine, Smith & Redfearn, New Orleans, Brian C. Bossier, Blue, Williams, Metairie, Christopher K. Lightfoot, Valerie T. Schexnayder, Hailey, McNamara, Hall, Larmann & Papale, Metairie, E. Scott Hackenberg, Henchy, Verbois, Futrell & Foil, Baton Rouge, Troy N. Bell, Aultman, Tyner, Ruffin & Yarbrough, New Orleans, Lawrence G. Pugh, III, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, Charles V. Giordano, Miranda, Warwick & Milazzo, Metairie, Larry G. Canada, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, Gregory E. Bodin, Taylor, Porter, Brooks & Phillips, Baton Rouge, Gerolyn P. Roussel, Perry J. Roussel, Jr., Roussel & Roussel, LaPlace, Gordon P. Wilson, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, Scott P. Yount, Walter S. Brown, Preston & Cowan, John B. Edwards, III, Dogan & Wilkinson, John D. Cosmich, Forman, Perry, Watkins, Krutz & Tardy, Laurie J. Hutchings, Dawn E. Fulce, Ken-an S. Rand, Jr., New Orleans, Counsel for Respondent in No. 2003-CC-1002.
    Wendy K. Lappenga, Andrew L. Plauche, Jr., Plauche, Maselli, Landry & Parkerson, New Orleans, Johanna G. King, Richard M. Perles, Gary A. Lee, Lee, Futrell & Perles, New Orleans, Samuel M. Rosamond, III, Thomas W. Aycock, Crawford & Lewis, Baton Rouge, David S. Bland, Scott T. Winstead, Beau E. LeBlanc, King, LeBlanc & Bland, New Orleans, Geoffrey P. Clement, Gary M. Zwain, Dana D. Anderson-Carson, Du-plass, Zwain, Bourgeois & Morton, Me-tairie, Lynn M. Luker, James F. D’Entre-mont, Arthur W. Stout, III, Deutsch, Kerrigan & Stiles, New Orleans, Susan B. Kohn, Simon, Peragine, Smith & Red-fearn, New Orleans, Brian C. Bossier, Blue, Williams, Metairie, Christopher K. Lightfoot, Valerie T. Schexnayder, Hailey, McNamara, Hall, Larmann & Papale, Me-tairie, E. Scott Hackenberg, Henchy, Ver-bois, Futrell & Foil, Baton Rouge, Troy N. Bell, Aultman, Tyner, Ruffin & Yar-brough, New Orleans, Lawrence G. Pugh, III, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, Charles V. Giordano, Miranda, Warwick & Milazzo, Metairie, Larry G. Canada, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, Gregory E. Bodin, Taylor, Porter, Brooks & Phillips, Baton Rouge, Gerolyn P. Roussel, Perry J. Roussel, Jr., Roussel & Roussel, LaPlace, Gordon P. Wilson, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, Scott P. Yount, Walter S. Brown, Preston & Cowan, John B. Edwards, III, Dogan & Wilkinson, John D. Cosmich, Forman, Perry, Watkins, Krutz & Tardy, Laurie J. Hutchings, Dawn E. Fulce, Kenan S. Rand, Jr., New Orleans, Counsel for Respondent in No. 2003-CC-0993.
    Stephen N. Elliott, Francine M. Giugno, Robert A. Knight, Bernard, Cassisa, Elliott & Davis, Metairie, David S. Bland, Scott T. Winstead, Beau E. LeBlanc, King, LeBlanc & Bland, New Orleans, Geoffrey P. Clement, Gary M. Zwain, Dana D. Anderson-Carson, Duplass, Zwain, Bourgeois & Morton, Metairie, Lynn M. Luker, James F. d’Entremont, Arthur W. Stout, III, Deutsch, Kerrigan & Stiles, New Orleans, Susan B. Kohn, Simon, Peragine, Smith & Redfearn, New Orleans, Brian C. Bossier, Blue, Williams, Metairie, Christopher K. Lightfoot, Valerie T. Schexnayder, Hailey, McNamara, Hall, Larmann & Pa-pale, Metairie, E. Scott Hackenberg, Henchy, Verbois, Futrell & Foil, Baton Rouge, Troy N. Bell, Aultman, Tyner, Ruf-fin & Yarbrough, New Orleans, Lawrence G. Pugh, III, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, Charles V. Giordano, Miranda, Warwick & Milazzo, Metairie, Larry G. Canada, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, Gregory E. Bodin, Taylor, Porter, Brooks & Phillips, Baton Rouge, Gerolyn P. Roussel, Perry J. Roussel, Jr., Roussel & Roussel, LaPlace, Gordon P. Wilson, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, Scott P. Yount, Walter S. Brown, Preston & Cowan, John B. Edwards, III, Dogan & Wilkinson, John D. Cosmich, Forman, Perry, Watkins, Krutz & Tardy, Laurie J. Hutchings, Dawn E. Fulce, Kenan S. Rand, Jr., New Orleans, Counsel for Respondent in No. 2003-CC-719.
   11 VICTORY, J.

We granted this writ application to determine whether the wife of a worker who was exposed to asbestos at various intervals from 1959 to 1974, and who was diagnosed with and died from mesothelioma in 2002: (1) has a claim for pre-death loss of consortium under La. C.C. art. 2315; and, if so, (2) whether the worker’s employers and executive officers and directors of the employers are immune from this claim by virtue of La. R.S. 23:1032. After reviewing the record and the applicable law, we find that to allow the loss of consortium claim would be an impermissible retroactive application of La. C.C. art. 2315, and also, we find that the employers and executive officers and directors are immune from this claim. Therefore, we grant the defendants’ exceptions of no cause of action.

FACTS AND PROCEDURAL HISTORY

Raleigh Landry worked for Avondale Industries from 1965 to 1967 and for McDermott, Inc., from 1959 to 1961, 1964 to 1965, and from 1973 to 1974. Plaintiffs allege he was exposed to asbestos during these employments, and that as a result, he contracted mesothelioma, which was diagnosed in January of 2002, and which caused his death on November 21, 2002. Raleigh Landry and his wife, Clailee Landry, filed suit against Avondale and its executive officers, McDermott and its executive officers, Land several manufacturers of asbestos products for damages arising from his contraction of mesothelioma, including, but not limited to, loss of consortium claims filed on behalf of Mrs. Landry. By supplemental and amending petition, Jamie Landry and Glen Landry, children of Raleigh Landry, were substituted for Mr. Landry’s survival damages, and, along with their mother, asserted survival and wrongful death actions which arose due to the injury and death of Raleigh Landry.

Peremptory exceptions of no cause of action for the loss of consortium claim were filed by the executive officer defendants of Avondale and by McDermott, and separate exceptions of these issues were filed by the manufacturing defendants, Reilly-Benton Company, Inc., and Liberty Mutual Insurance Co. These exceptions were denied by the trial court on October 29, 2002, and November 21, 2002. The trial court gave the following reasons for his judgments:

In Coates v. Owens-Corning Fiberglass[Fiberglas] Corp., 444 So.2d 788 (La.App. 4 Cir.1984) the court held that a cause of action for loss of consortium does not arise until the plaintiff actually suffers the loss. See also Delphen v. Dept. of Transp., 657 So.2d 328 (La.App. 4 Cir.1995) for the proposition that until an injured party’s condition deteriorates to such an extent that his family is actually deprived of his consortium, society and service, they have suffered no injury.
For similar reasons, this court finds that the instant case involves alleged asbestos-related injuries, which can result in a slowly developing condition which is not even noticeable, much less disabling, until this condition progresses to a point in time wherein a medical diagnosis can be made. Therefore, petitioner Clailee Landry would suffer no injury until her husband’s asbestos-related cancer progressed to such an extent that she was actually deprived of his consortium, society and service. Prior to Mr. Landry’s diagnosis with mesothelioma in January 2002, any loss of consortium claim by Mrs. Landry would have been speculative and premature. Accordingly, as Mrs. Landry’s loss of consortium arose after September 10, 1982, the effective date of Act 202 allowing for loss of consortium, the court finds that Mrs. Landry can assert her claim against defendants, including those executive officer defendants.
Since Mrs. Landry’s claim for loss of consortium is a derivative claim, it is not subject to the exclusive remedy provisions of the workers’ compensation statute since the primary claim of Mr. Landry arises due to an injury (meso-thelioma) that is outside of the exclusive remedy of the workers’ compensation act. Only when the primary claim falls within the exclusive remedy of the workers compensation statute are the derivative claims also barred or governed by the workers’ compensation act. Walls v. American Optical Corp., 740 So.2d 1262 (La.1999) and Vallery v. Southern Baptist Hospital, 680 So.2d 861 (La.App. 4 Cir.1993).

LThe court of appeal, in 2-1 decisions, denied the defendants’ writ applications, ruling that “[o]n the showing made, we decline to exercise our supervisory jurisdiction.” Landry v. Avondale Industries, Inc., et al., 02-2341 (La.App. 4 Cir. 2/11/03), 02-2372 (La.App. 4 Cir. 3/6/03), 02-2373 (La.App. 4 Cir. 3/6/03). We granted and consolidated the defendants’ writ applications. Landry v. Avondale Industries, Inc., et al., 03-0719 (La.6/20/03), 847 So.2d 1248 (filed by Peter Territo, Edward Blanchard, J. Melton Garrett, Albert Bossier, Jr., Commercial Union Insurance Company, Addison Daigle, Francis C. Naquin and H.W. Bailey), c/w 03-0993 (La.6/20/03), 847 So.2d 1247 (filed by Reilly-Benton Co., Inc. and Liberty Mutual Insurance Co.), c/w 03-1002 (La.6/20/03), 847 So.2d 1247 (filed by McDermott).

DISCUSSION

Application of the 1982 Amendment to La. C.C. art. 2315

The executive officers and directors of Avondale and McDermott argue that Mrs. Landry’s loss of consortium claim did not arise until Mr. Landry was diagnosed with mesothelioma, but that under our holding in Anderson v. Avondale Industries, 00-2799 (La.10/16/01), 798 So.2d 93, the 1982 amendment to La. C.C. art. 2315 providing a loss of consortium claim cannot be retroactively applied to conduct which occurred prior to 1982. Plaintiffs agree that the loss of consortium claim did not arise until 2002, but argue that Anderson does not prohibit the application of 2315. Interestingly, the manufacturing defendants argue that under the “exposure theory” adopted by this court in Austin v. Abney Mills, 01-1598 (La.9/4/02), 824 So.2d 1137, the loss of consortium claim arose at the time of exposure to asbestos, at which time our laws did not allow a claim for loss of consortium.

Thus, as an initial matter, we address the issue of when a cause of action for loss of consortium accrues. “Under Louisiana law, a cause of action accrues when a party has the right to sue.” Bourgeois v. A.P. Green Indus., Inc., 00-1528 (La.4/3/01), 783 So.2d 1251, 1259; Falgout v. Dealers Truck Equip. Co., 98-3150 (La.10/19/99), 748 So.2d 399. As even the plaintiffs recognize, it is well-settled that a cause of action for loss of consortium does not accrue until a plaintiff suffers the actual loss of consortium, which has been held to occur at the time an injured party’s condition deteriorates to such an extent that his family is actually deprived of his consortium, service or society. William E. Crawford, Developments in the Law 1993-1991, 55 La. L.Rev. 657, 658 (1995); Coates v. Owens-Corning Fiberglas Corp., 444 So.2d 788 (La.App. 4 Cir.1984); Faraldo v. Hanover Ins. Co., 600 So.2d 81 (La.App. 4 Cir.1992); Ewing v. Armstrong World Industries, Inc., 02-918 (La.App. 3 Cir. 2/19/03), 846 So.2d 813; Abadie v. Commercial Union Ins. Co., 464 So.2d 979 (La.App. 4 Cir.1985); McDuffie v. ACandS, Inc., 00-2745 (La.App. 4 Cir. 2/14/01), 781 So.2d 623; but see Ferguson v. Burkett, 454 So.2d 413 (La.App. 3 Cir. 1984) (refusing to allow a loss of consortium claim because the acts or negligence of defendants occurred prior to the 1982 amendment). There has been no allegation that Mrs. Landry suffered a loss of consortium prior to 1982, and in fact plaintiffs assert that the loss of consortium claims did not accrue until after Raleigh Landry was diagnosed with mesothelioma on January 15, 2002. We agree, and hold that, because Mrs. Landry did not have a right to sue for loss of consortium until January of 2002, her cause of action did not accrue until that time.

|fiIn 1982, by Acts 1982, No. 202, § 1, La. C.C. art. 2315 was amended to add a cause of action for loss of consortium, as follows:

B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person....

At issue is whether that article as amended in 1982 applies in this case where the negligent conduct, i.e., the exposure to asbestos, occurred prior to 1982, but the cause of action arose after that date. In Anderson, we faced a similar issue of whether former La. C.C. art. 2315.3, allowing recovery of punitive damages in certain cases involving hazardous substances, applied to a wrongful death case in which the cause of action arose after the effective date of former La. C:C. art. 2315.3, but the conduct giving rise to the injuries occurred before that date. The analysis used in Anderson is also appropriate in this case.

In enacting Acts 1982, No. 202, § 1, the legislature did not express its intent with regard to its application, thus we look to La. C.C. art. 6, which provides:

In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both | fiprospectively and retroactively, unless there is a legislative expression to the contrary.

“ ‘Substantive laws,’ for purposes of determining whether a law should be applied retroactively, are those which establish new rules, rights, and duties, or change existing ones.” Anderson, supra at 97; Aucoin v. State Through Dept. of Transp. and Dev’t, 97-1938, 97-1967 (La.4/24/98), 712 So.2d 62, 67. As with the law allowing for punitive damages in Anderson, the 1982 amendment to La. C.C. art. 2315 for the first time' allowing the recovery for damages for loss of consortium prior to death was clearly a substantive law in that it established a new right of action. Because the amendment to La. C.C. art. 2315 was a substantive law and the legislature did not expressly provide that it should be applied retroactively, La. C.C. art. 6 requires that it be given prospective application only. See also Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741, 744 n. 1 (remarking about a 1980 claim for loss of consortium that “[a] right to claim damages for loss of consortium was not recognized until a 1982 amendment to [La. C.C.] art. 2315, and that amendment was not applied retroactively.”)

Mrs. Landry argues that since her cause of action for loss of consortium arose after the 1982 amendment allowing pre-death loss of consortium claims, that amendment applies prospectively to allow her claim. However, the accrual of a cause of action during the time a law is in effect does not necessarily determine the law’s application to the claim. Anderson, supra at 99. Rather, this Court has adopted the formula set out by Planiol “for identifying the only two situations in which a law operates retroactively:

[a] law is retroactive when it goes back to the past either to evaluate the conditions of the legality of an act, or to modify or suppress the effects of a right already acquired. Outside of those conditions, there is no retroactivity.”

Anderson, supra at 97-98 (citing Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262, 1267 (citing 1 M. Planiol, Treatise on the Civil Law, § 243 (La.St.L.Inst.Trans.1959))). “Under Planiol’s first situation in which a law operates retroactively, when a intervening law creates a cause of action, and thus attaches new consequences to past events, the ret-roactivity event is the conduct or activity 17regulated.” Anderson, supra at 99. Thus, as in Anderson, because the amendment to La. C.C. art. 2315 created a cause of action for loss of consortium, the application of that article to the facts of this case would be an impermissible retroactive application of the law because it would go back to the past to evaluate the conditions of the legality of the defendants’ conduct, which occurred before the 1982 amendment. This result was also urged by recently departed Chief Judge Byrnes in his well reasoned eight-page dissent to the denials of the writs in these cases. Landry v. Avondale, Byrnes, dissenting.

Immunity Defense

The employer defendants also argue that even if Mrs. Landry can assert her cause of action for loss of consortium, because that cause of action did not arise until January of 2002, they are immune from tort liability by virtue of La. R.S. 23:1032. The employers argue they are immune because mesothelioma was recognized as a covered occupational disease in 1975, and the executive officers and directors argue they are immune because La. R.S. 23:1032 was amended in 1976 to extend tort immunity to them.

In Walls, this Court held that applying the 1976 amendment to La. R.S. 23:1032 to silicosis exposure that predated the statute, resulting in death after the effective date of the statute, did not result in an impermissible application of La. R.S. 23:1032. Therefore, we held that the plaintiffs could not assert a wrongful death action against the employers’ executive officers because they were immune from suit. Crucial to our holding was a finding that a wrongful death cause of action does not accrue until death, because where a new substantive law essentially extinguishes a cause of action, lathe date that the cause of action accrues is a crucial determining point in considering the second condition of retroactivity of Plainiol’s formula, i.e., whether the law modifies or suppresses the effects of a right already acquired. We clarified earlier in this opinion that a cause of action for loss of consortium does not accrue until the plaintiff suffers an actual loss of consortium, service or society. Indeed in Walls we stated that “[a] negligence cause of action will arise only upon the happening of a wrongful act and the existence of an injury resulting in legally cognizable damages.” 740 So.2d at 1269. Just as “the wrongful death action arises at the death of the victim, and compensates the beneficiaries for them injuries that occur at the moment of the victim’s death and thereafter,” 740 So.2d at 1270, a loss of consortium action arises at the time an injured party’s condition deteriorates to such an extent that his family is actually deprived of his consortium, service, or society and compensates the beneficiaries for their injuries at that moment and thereafter. Thus, since Mrs. Landry could not have been injured until Mr. Landry’s condition deteriorated to that extent, which by all accounts was well after 1976, and her cause of action for loss of consortium did not arise prior to that date, it necessarily follows that she could not have acquired a “right” in their cause of action for loss of consortium prior to 1976.

Plaintiffs argue that our holding in Walls was based on a specific finding that a wrongful death action was not a derivative action. 740 So.2d at 1274. Plaintiffs argue that derivative claims, such as loss of consortium claims, are by their very nature governed by the status of the primary victim’s claim. They argue that Mr. Landry’s claims are not governed by the Workers’ Compensation Act under the “exposure theory” of Austin v. Abney Mills, and that therefore, the derivative loss of consortium claim is not either. They cite Walls for the proposition that “only when the primary victim’s claim falls within the exclusive remedy of the worker’s compensation statute are the derivative claims also barred or governed by the workers’ compensation act.”

|9In Walls, we addressed an identical argument made by the plaintiffs in that case by finding that a wrongful death action was not a derivative action. In so doing, we stated that this Court had “characterized the consortium claim as derivative of a primary victim’s injury in Ferrell v. Fireman’s Fund Ins. Co., 96-3028, p. 2 (La.7/1/97), 696 So.2d 569, 574.” 740 So.2d at 1274. In Ferrell, we were interpreting the single person policy limits of an insurance policy and held that, because the loss of consortium claim was “derivative of the primary victim’s injury,” it was restricted to the single person policy limits of the defendant’s policy. As one commentator has aptly explained, “this limitation to the single person policy limits occurs because of the construction the courts have given the relevant liability insurance policy provisions, not because the derivative nature of the loss of consortium claim makes it merely a part of a single claim or cause of action (i.e., the primary victim’s)”. Crawford, Developments in the Law 1993-1994, supra at 658. As further explained:

The claim for loss of consortium is almost indistinguishable from the claim for wrongful death in that both causes of action are dependent on a primary tort to another person. Nonetheless, both claims are, beyond question, causes of action separate from any claim of the primary victim. The loss of consortium and wrongful death claims are thus derivative only in the sense that the damages suffered by these claimants flow from their relationship with the primary tort victim. Neither claim, however, is the assertion of the primary victim’s cause of action itself, as in the case with a survival action.

Id. We agree with Professor Crawford’s conclusion that loss of consortium claims are derivative “only in the sense that the damages suffered by these claimants flow from their relationship with the primary tort victim.” However, this does not mean that the loss of consortium claim is governed by the status of the primary victim’s claim. |inA loss of consortium claim, like a wrongful death claim, clearly compensates the beneficiaries for their own injuries, separate and distinct from the victim’s injuries. Both are unlike a survival action, which we stated in Taylor v. Giddens, “comes into existence simultaneously with the existence of the tort and is transmitted to beneficiaries upon the victim’s death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death. It is in the nature of a succession right.” 618 So.2d 834 (La.1993).

Therefore, in spite of the fact that a loss of consortium claim is characterized as a derivative claim in the sense discussed above, that does not prevent the application of the holding in Walls in this case. Accordingly, we hold that because the loss of consortium claim arose after the 1976 amendment to La. R.S. 23:1032 granting tort immunity to executive officers and directors and after the 1975 amendment to La. R.S. 23:1032 to include all occupational diseases, both Avondale and McDermott, as well as the executive officer defendants, are immune from the loss of consortium claim in this case.

CONCLUSION

A claim for loss of consortium accrues at the time a plaintiff suffers an actual loss of consortium, which is the point at which an injured party’s condition deteriorates to such an extent that his family is actually deprived of his consortium, service, or society. In this case, as plaintiffs allege, Mrs. Landry’s loss of consortium claim accrued at the earliest in 2001 or 2002, at around the time Mr. Landry was diagnosed with mesothelioma, but the exposure that resulted in this diagnosis occurred from 1959 to 1974. Under our holding in Anderson, because a cause of action for loss of consortium did not exist under our laws until La. C.C. art. 2315 was amended in 1982, the application of that article to this case would be an impermissible retroactive application of the law because it would go back to the past to evaluate the conditions of the legality of the defendants’ conduct. Therefore, Mrs. Landry cannot assert a claim for pre-death loss of consortium under La. C.C. art. 2315. In addition, because Mrs. Landry’s loss of consortium did not occur until 2001 or 2002, the employer defendants are immune from that claim by virtue of La. R.S. 23:1032.

| ^DECREE

For the reasons stated herein, the judgments of the court of appeal are reversed, the exceptions of no cause of action on the loss of consortium claim are granted, Mrs. Landry’s pre-death loss of consortium claims are dismissed with prejudice, and the case is remanded for further proceedings.

REVERSED AND REMANDED.

JOHNSON, Justice concurs in the result.

KNOLL, J., concurs in the result only.

CALOGERO, C.J., concurs in part and assigns reasons.

[, CALOGERO, Chief Justice,

concurs in part.

I concur in that portion of the majority decision disallowing Ms. Landry’s claim for loss of consortium. Because all of Mr. Landry’s exposure to asbestos occurred between 1959 and 1974, before the legislature in 1982 amended La. Civ.Code art. 2315 to provide for loss of consortium claims, allowing her consortium claim against the employer defendants would be an impermissible retroactive application of the amendment. As I noted in my concurrence in Anderson v. Avondale Industries, Inc., 00-2799 (La.10/16/01), 798 So.2d 93, 103, with respect to punitive damages, this is not a situation wherein the legislature extinguished a cause of action before the plaintiffs claims accrued, but one wherein the legislature created a cause of action after the plaintiff suffered harm. Id. at 11, 798 So.2d at 103.

On the' other hand, I believe that the majority’s decision to find that the executive officers' and directors are immune ■from liability for Ms. Landry’s loss of consortium damages under La.Rev.Stat. 23:1032 is both unnecessary and confusing under the facts of this case. The majority posed the issues before us as (1) whether Ms. Landry “has a claim for pre-death loss of consortium under [La. Civ.Code] art. [ ¡>2315, and, if so, (2) whether the worker’s employers and executive officers and directors of the employers are immune from this claim by virtue of La. [Rev. Stat.] 23:1032.” Ante, p. 120 (emphasis supplied). Therefore, by answering in the negative the first question, i.e., by finding that Ms. Landry has no cause of action for loss of consortium, the majority disposed of the case and did not have to reach the second question posed. Therefore, the majority’s gratuitous finding that the executive officers and directors are immune is pure dicta. Furthermore, the majority’s reasoning in this regard is confusing because its present finding that loss of consortium claims are not derivative claims, but separate claims, conflicts with the court’s statements in Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262, a decision in which I was not on the panel, and its former holding in Ferrell v. Fireman’s Fund Ins. Co., 96-3028 (La.7/1/97), 696 So.2d 569, a decision written by the author of the majority opinion today.

ON APPLICATION FOR REHEARING ON BEHALF OF REILLY-BENTON COMPANY, INC. AND LIBERTY MUTUAL INSURANCE COMPANY

Rehearing denied.

| VVICTORY, J.,

concurring in the denial of rehearing.

On page 120 of the majority opinion, we referred to Reilly-Benton Company, Inc. (“Reilly-Benton”) as “manufacturing defendants.” It is clear the majority did not hold that Reilly-Benton was a manufacturing defendant, but was merely alleged to be a manufacturing defendant.

      . This identical issue has presented itself in three recent writ applications to this Court. In Ewing v. Armstrong World Industries, Inc., 02-0918 (La.App. 3 Cir. 2/19/03), 846 So.2d 813, the court of appeal held that the loss of consortium claims were barred, holding as follows:
      [T]he time of the exposure or onset of the injury causing asbestosis is not the event that determines the applicable law governing the separate loss of consortium claim, as defendants argue. Instead, it is the loss to the spouse or relative of those elements comprising consortium that is the decisive factor. The claim for loss of consortium and the impact of the 1982 amendment to La. C.C. art. 2315 should be deciphered independently from the date on which the cause of action accrued for the injured spouse. Thus, the survivors’ loss did not occur until 1996 when Ewing was diagnosed with mesothelioma, well after La. Civ.Code art. 2315 was amended to add a cause of action for loss of consortium.
      Defendants assert, however, that the immunity granted to executive officers by the 1976 amendment to La. R.S. 23:1032 forecloses plaintiffs' loss of consortium claim. We agree.

      It follows that since plaintiffs' loss of consortium claims arose long after 1976, the year in which La. R.S. 23:1032 was amended, the exclusive provisions of the Workers' Compensation Act grants the defendants immunity from loss of consortium claims. Thus, the plaintiffs do not have a cause of action for loss of consortium against defendants.
      This Court has not yet acted on that writ application. In both Weber v. A.P. Green Industries, 02-2593 and Weber v. Avondale Industries, 02-2594, the trial court granted summary judgment in favor of the defendants as to the plaintiffs’ loss of consortium claims and the Fourth Circuit denied writs. On December 12, 2002, this Court denied plaintiffs’ writ applications. Weber v. A.P. Green Industries, 02-2593 (La.12/13/02), 831 So.2d 989; Weber v. Avondale Industries, 02-2594 (La.12/13/02), 831 So.2d 990.

        . Plaintiffs argue that the legislature has expressed its intent that the 1982 amendment to La. C.C. art. 2315 be given retroactive effect, but their reasoning is misleading and wrong. They argue that on August 15, 1999, Act 989 of 1999 became effective and re-enacted La. C.C. art. 2315 such that the entire statute be applicable to all actions pending or claims filed after its effective date of August 15, 1999. Act 989 amended La. C.C. art. 2315 to add to paragraph B the following:
      [ ]Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or diseased ]
      La. C.C. art. 2315(B). Sections 2 and 3 of the Act provide:
      Section 2. The provisions of this Act are interpretative of Civil Code Article 2315 and are intended to explain its original intent, notwithstanding the contrary interpretation given in Bourgeois v. A.P. Green Indus., Inc., 97-3188 (La.7/8/98), 716 So.2d 355 [(holding that Art. 2315 encompassed claims for medical monitoring by individuals with no demonstrable injury)], and all cases consistent therewith.
      Section 3. The provisions of this Act shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date.
      Act 989 of 1999 was enacted with the exclusive purpose of excluding medical monitoring from the types of damages recoverable under Art. 2315 unless said medical monitoring is directly related to a manifest physical or mental injury or disease. Clearly, the language in Sections 2 and 3 applies only to the language included in Act 989, and not the entire statute. Ewing, supra. See also Naquin v. Titan Indem. Co., 00-1585 (La.2/21/01), 779 So.2d 704. In addition, in Bourgeois II, this Court held that Act 989 could not effect a retroactive change in the substantive law even though the legislature specifically stated that Act 989 was intended to explain the original intent of Art. 2315, and even though Act 989 specifically stated that it was to be applicable to all claims existing on its effective date. Bourgeois v. A.P. Green Indus., Inc., 00-1528 (La.4/3/01), 783 So.2d 1251.

      . We reject plaintiffs' argument that because the defendants' conduct was illegal prior to and after the 1982 amendment, application of the article does not have retroactive effect for the same reasons we rejected that argument in Anderson. As the United States Supreme Court has held "even when the conduct in question is morally reprehensible or illegal, a degree of unfairness is inherent whenever the law imposes additional burdens based on conduct that occurred in the past." Anderson, supra at 101 n. 8 (citing Landgraf v. USI Film Products, 511 U.S. 244, 284 n. 36, 114 S.Ct. 1483, 1507 n. 36, 128 L.Ed.2d 229 (1994)).

      . McDermott argues it is immune from the loss of consortium claim because in 1976 the LWCA was amended to extend employer immunity to include mesothelioma, and, although they assert they were immune from the date the act was originally passed, they adopt 1976 as the date for the purposes of this brief because there is no question that meso-thelioma is covered after that. The executive officers claim they are immune because in 1976, immunity was extended to executive officers. The manufacturing defendants have no immunity claim.

      . In Walls, we summarized plaintiffs' argument in this regard as follows:
      The plaintiffs' urge this Court to find that the wrongful death action is a derivative action “deriving from the wrongful act and injury to the victim whose eventual death results in further injury to the survivors.” The plaintiffs argue that the right to recover, or the "right of action,” arises with the wrongful conduct under La. C.C. art. 2315 that provides: “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” It is the "act" that causes the injury and gives rise to the right to recover damages, and the wrongful death is derivative of the victim’s underlying injury. Thus the argument continues, the wrongful death plaintiff’s "right of action” arises at the time of injury to the victim and is thus governed under the same law as that which governs the victim’s action. The law in effect on the date of the tortious conduct applies in both the tort victim’s action and the wrongful death claim because La. C.C. art. 2315 “regulates” conduct by holding people accountable for their "acts causing damage.”


text:
    STATE of Louisiana v. Deonta GRAY, et al.
    No. 2003-KK-2604.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Gray, Deonta et al.; Gray, Jonta;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, Nos. 433-357; to the Court of Appeal, Fourth Circuit, No. 2003-K-1240.

Writ granted.

CALOGERO, C.J. concurs not because he has decided the merits of the defense motion to suppress, but because he would prefer to have this court grant and docket and decide the matter rather than send it back to the court of appeal.


author: CALOGERO, C.J.,

text:
    STATE ex rel. Sylvester ROLLINS v. STATE of Louisiana.
    No. 2003-KP-1050.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Rollins, Sylvester;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, Nos. 237-498.

Writ denied.

CALOGERO, C.J., would grant the writ and assigns reasons.

JOHNSON, J., would grant the writ.

CALOGERO, C.J.,

would grant and assigns reasons.

Relator has filed an application with a claim based on facts “not known to him or his attorney” at trial. So the court can find the application time-barred only if the state demonstrates that “delay has prejudiced its ability to respond to the application as the result of events not within its control.” La.C.Cr.P. art. 930.8(B): Carlin v. Cain, 97-2390 (La.3/13/98), 706 So.2d 968. The district court should hold a hearing at which the state would have the opportunity to demonstrate that prejudice. If the state were unable to make such a showing, the district court would be able to review the merits of relator’s claim and rule as is warranted. See State v. Conway, 01-2808 (La.4/12/02), 816 So.2d 290.


author: CALOGERO, Chief Justice

text:
    STATE of Louisiana v. Michael LOTT.
    No. 2003-KO-499.
    Supreme Court of Louisiana.
    Jan. 9, 2004.
   In re Michael Lott;—Defendant; Applying for Reconsideration of an Order of this Court Dated October 17, 2003, Parish of Jefferson, 24th Judicial District Court, Div. I, Nos 97-0229; Court of Appeal, Fifth Circuit, No. 02-KA-702.

Reconsideration denied.

CALOGERO, C.J., concurs with reasons.

CALOGERO, Chief Justice

concurring.

I concur in the denial of the defendant’s application for reconsideration. The appropriate remedy is through an application for post-conviction relief, filed initially in the trial court where a full evidentiary hearing can be conducted.