author: PAUL A. BONIN, Judge. TOBIAS, J.,

text:
    Patricia WATKINS v. EXXON MOBIL CORPORATION.
    No. 2012-C-0477.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 29, 2013.

      Jeremiah A. Sprague, Timothy J. Falcon, Falcon Law Firm, Marrero, LA, Frank M. Buck, Jr., New Orleans, LA, for Plaintiff/Relator.
    Martin A. Stern, Raymond P. Ward, Valeria M. Sercovich, Glen M. Pilié, Adams and Reese LLP, Richard S. Pabst, Michael R. Phillips, Louis M. Grossman, Julie Par-elman Silbert, Brittany L. Buckley, Kean Miller LLP, Molly Steele, Barbara Bosset-ta, Edward L. Fenasci, Curry & Friend, PLC, Ronald A. Johnson, Bettye A. Barrios, Gavin H. Guillot, Johnson Johnson Barrios & Yacoubian, Chadwick J. Moliere, S. Suzanne Mahoney, Nichole M. Gray, Johnson Gray McNamara, LLC, Roy J. Rodney, Jr., Rodney & Etter, LLC, New Orleans, LA, Mary S. Johnson, Jill T. Losch, Johnson Gray McNamara, LLC, Mande-ville, LA, Thomas M. McNamara, Johnson Gray McNamara, LLC, Lafayette, LA, for Defendants/Respondents.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

[,We granted a writ of certiorari to consider Patricia Watkins’ challenges to the correctness of the trial court’s granting of the oil company defendants’ peremptory exceptions of peremption and of no cause of action. The defendants argued and the trial court found that Ms. Watkins’ survival action was extinguished because it was perempted and that she has no cause of action for exemplary damages in connection with either her wrongful death or her survival action claims. After a de novo review of the legal issues presented, we conclude that the one-year period to bring a survival action under La. Civil Code art. 2315.1 is a prescriptive period and not a peremptive period.

After our de novo review of the ruling on the no cause of action respecting exemplary damages, we conclude that with respect to Ms. Watkins’ claim for such damages arising in connection with her wrongful death claim the trial ruling is correct, but that with respect to her claim in connection with her survival action, |2she should be permitted to amend her petition under La. C.C.P. art. 984 to state a cause of action.

Accordingly, we vacate that portion of the judgment which sustained the exception of peremption on her survival action claim, we amend the portion of the judgment sustaining the exception of no cause of action respecting the survival action to permit Ms. Watkins on remand to amend her petition, and, as amended, affirm the portion of the judgment sustaining the exception of no cause of action. We remand the matter with an instruction to the trial court. We explain our decision in greater detail in the following Parts.

I

James Hicks, the father of Ms. Watkins, died on December 27, 1986. On June 17, 2011, she filed a survival action under La. Civil Code art. 2315.1 and a wrongful death action under La. Civil Code art. 2315.2. She also demanded exemplary damages under former La. Civil Code art. 2315.3 in connection with her claims which are based on Mr. Hicks’ alleged exposure to naturally occurring |¡¡radioactive material (NORM) while he was cleaning scale out of pipes used in the production of oil.

In response to Ms. Watkins’ petition, the oil company defendants filed, among other exceptions, a peremptory exception of per-emption against Ms. Watkins’ survival action and a peremptory exception of no cause of action against her claim for exemplary damages. As already noted, the trial court granted both exceptions.

II

In this Part we explain why the one-year period for bringing a survival action is prescriptive and not peremptive.

A

The right to recover for an injury to a person caused by an offense or quasi-offense who dies “shall survive for a period of one year from the death of the deceased.” La. Civil Code art. 2315.1 A. Ms. Watkins acknowledges that her lawsuit was not filed within the one-year period, but asserts that her suit is nonetheless timely despite the expiration of more than one year from the death of her father until her suit was filed by application of the principle contra non valentem. The oil company defendants, however, argue that the principle cannot be applied because the one-year period is peremptive. See State Through Div. of Admin, v. McInnis Bros. Const., 97-0742, p. 3 (La.10/21/97), 701 So.2d 937, 939 |4(“One type of suspension which may apply to a prescriptive period but which, by its very nature, does not apply to a peremptive period, is the doctrine of contra non valentem agere nulla currit praescriptio.”).

Ms. Watkins replies that although jurisprudence predating the 1986 amendment to the Civil Code did hold that the delay for bringing a survival action is peremp-tive, the 1986 amendment adding Article 2315.1 classifies the delay for bringing an action as a “prescriptive period” and that the change in the Article expresses the legislature’s intent to change the delay from a peremptive to a prescriptive period. The specific language in the 1986 amendment relied upon by Ms. Watkins is currently found in La. Civil Code art. 2315.1 C: “The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.” (emphasis added)

B

“Peremption is a period of time fixed by law for the existence of a right.” La. Civil Code art. 3458. “Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” Id. The most notable, and here disposi-tive, difference between prescription and peremption is that “liberative prescription merely prevents the enforcement of a right by action, it does not terminate the natural obligation; peremption, however, destroys or extinguishes the right itself.” Borel v. Young, 07-0419, p. 9 (La.11/27/07), 989 So.2d 42, 49.

| -Peremption is a construct of Louisiana jurisprudence that did not appear in the Civil Code until January 1, 1983, when it was added as La. Civil Code art. 3458 by Acts 1982, No. 187, § 1. See Needom v. Robein, 08-0318, p. 10 (La.App. 4 Cir. 2/18/09), 7 So.3d 30, 36. But the addition of Article 3458 did not change pre-existing law; it did, however, codify the existing jurisprudence. See La. Civil Code art. 3458 cmt. (a). The jurisprudential standard can be found in cases dating back to Guillory v. Avoyelles Ry. Co., 104 La. 11, 15, 28 So. 899, 901 (1900):

When a statute creates a right of action, and stipulates the delay within which that right is to be executed, the delay thus fixed is not, properly speaking, one of prescription, but it is one of peremption. Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to say, after the limit of time expires the cause of action no longer exists; it is lost.

Thus, as a general proposition, solely under a Guillory analysis, when the codal article by which the right of action is created also stipulates the delay within which the right is to be exercised is fixed, the delay would be peremptive and not prescriptive.

Notably, survival and wrongful death actions are “special legislation providing for the survival of a right of action in favor of named classes of survivors and also creating a cause of action in favor of those same classes of persons for wrongful death.” Levy v. State Through Charity Hosp. of Louisiana at New Orleans Bd. of Adm'rs, 253 La. 73, 77, 216 So.2d 818, 819 (La.1968). “That these rights are wholly the creatures of the Legislature is recognized historically and jurisprudentially.” Id. Because the right would not exist absent the legislation, Article 2315.1 creates a right of action. Article 2315.1 also stipulates that the right is to be exercised in one year.

| fiBut Guillory does not set forth the complete analysis. See Pounds v. Schori, 377 So.2d 1195, 1199-1200 (La.1979) (“We agree that each case of this nature should be considered on its merits, bearing in mind that the main consideration is the purpose sought to be achieved by the particular limitation period involved”); see also Guidry v. Theriot, 377 So.2d 319, 325 (La.1979) (stating that in Pounds the supreme court “held that per-emption, as differentiated from prescription, is a matter to be determined by legislative intent revealed by the statute in its entirety, including the purpose sought to be achieved.”). In determining whether the fixed period is prescriptive or peremp-tive, additional inquiries should be made: first, whether the statute designates itself as prescriptive or peremptive and, second, whether the statute’s purpose as a whole would be fulfilled by interpreting it as prescriptive or peremptive. See McInnis Bros. Const., 97-0742, pp. 5-7, 701 So.2d at 941-942; see also Guidry v. Theriot, 377 So.2d at 325.

Because the Civil Code in many situations remains silent as to whether a particular time limitation is prescriptive or peremptive, in order to determine whether a limitation is prescriptive or peremp-tive the courts necessarily “resort[ ] to an exploration of the legislative intent and public policy underlying a particular time limitation, for it is primarily whether the Legislature intended a particular time period to be prescriptive or peremptive that is the deciding factor.” Borel, 07-0419, p. 9, 989 So.2d at 49. “Thus, courts look to the language of the statute, the purpose behind the statute, and the public policy mitigating for or against suspension, interruption or renunciation of that time limit.” Id. And, most 17importantIy for our purposes here, “[w]hat a legislature says in the text of a statute is considered the best evidence of the legislative intent or will.” Id.

C

Thus, we find that the explicit language in Article 2315.1 C, describing the delay as a “prescriptive period,” is the “best evidence” that the legislature intends what it says in the codal article itself. We find support in the view of Professor William Crawford. He observed that “[i]t has been a long-running question as to whether the one-year period for survival provided in C.C. art. 2315.1 is a period of prescription or one of peremption.” Crawford, 12 La. Civ. L. Treatise, Tort Law § 5:9 (2d ed.). He then instructs that “[t]hat question should be considered settled by the enactment of the 1986 version of C.C. art. 2315.1(C), which explicitly refers to the one-year period of survival as a ‘prescriptive period.’ ” Id.

The characterization by the legislature that the period fixed in Article 2315.1 is prescriptive is “clear, unambiguous, and leads to no absurd consequences.” La. Civil Code art. 9. Under such circumstances we are to apply it “as written” and may search no further for the legislature’s intent. See id.; see also Arabie v. CITGO Petroleum Corp., 10-2605, p. 5 (La.3/13/12), 89 So.3d 307, 312.

Ill

We now address with specificity the decisions upon which the oil company defendants based their contention that the one-year limitation for a survival action is per-emptive and explain why we find that the these decisions do not control the determination of the proper classification of the limitation period.

I ¡A

We acknowledge that of primary importance to the defendants’ position (and to the district judge’s decision) is our 1966 holding in Succession of Roux where we found that the limitation period for bringing survival and wrongful death actions is peremptive. See Succession of Roux v. Guidry, 182 So.2d 109, 110 (La.App. 4th Cir.1966) (“We are firmly of the opinion that it is one of peremption.”).

We note in passing that our holding in Succession of Roux relied upon the first circuit’s holding in Miller v. American Mut. Liability Ins. Co., 42 So.2d 328, 330 (La.App. 1st Cir.1949), the reasoning of which was subsequently repudiated by the supreme court’s decision in Guidry v. Theriot, supra. More importantly, however, the supreme court in Guidry v. Ther-iot decided that the one-year limitation period for a wrongful death action is prescriptive and thus by implication overruled the conclusion set forth in Succession of Roux. See Guidry v. Theriot, 377 So.2d at 325. Succession of Roux did not involve a survival action, but was restricted to a wrongful death action. Succession of Roux, 182 So.2d at 111.

We also find unpersuasive the defendants’ argument that Guidry v. Theriot, which in any event pre-dates the 1986 amendment which described the limitation period as prescriptive, holds that survival actions are subject to peremption. Guidry v. Theriot emphasized the separateness and distinctiveness between a survival action and a wrongful death action and concluded that the filing of one faction will not interrupt the running of prescription of the other. Id., 377 So.2d at 326. But Guidry v. Theriot at no point explicitly decides that the limitation period for a survival action is peremptive; the closest Guidry v. Theriot actually comes to announcing such a result is its stating that “[w]e deem it reasonable that the legislature would be concerned about the interval during which a potential defendant might be vulnerable to a survival action and therefore foreclosed the issue by providing an express limitation.” Id., 377 So.2d at 326. The Guidry v. Theriot court was careful not to rule directly on the statute’s being prescriptive or peremptive because such a determination was not necessary for the holding of the case. While deeming it reasonable for a later court to interpret the delay as a peremptive period, the court limited its holding to survival actions in which the decedent has already instituted suit during his lifetime. See Guidry v. Theriot, 377 So.2d at 325.

B

We are not unmindful that the first circuit holds that the one-year limitation in a survival action is peremptive and not prescriptive. See Barber v. Employers Ins. Co. of Wausau, 11-0357, p. 18 (La.App. 1 Cir. 6/28/12), 97 So.3d 454, 469 (holding, “we conclude that the survival actions are perempted”). And we are aware that both the second and fifth circuits have described the limitation period as peremptive in decisions in which we find such description to have been unnecessary to the outcomes. See Adams v. Asbestos Corp., 41,-028 (La.App. 2 Cir. 5/17/06), 930 So.2d 342, and Courtland v. Century Indem. Co., 00-333 (La.App. 5 Cir. 10/18/00), 772 So.2d 797. These three decisions, however, make no mention of the 1986 amendment to the Civil Code adding Article 2315.1 C and Iminstead rely on the 1979 decision Guidry v. Theriot, supra, interpreting Civil Code art. 2315 as it existed then.

The fifth circuit in Courtland referred to the delay in Article 2315.1 as peremptive; however, such reference was in passing, no authority was cited for such a position, and, from the facts as stated, it appears that the parties conceded that the delay was peremptive. The defendants argued that the claim was perempted, and the plaintiffs argued that the peremptive period did not apply. See Courtland, 00-333, pp. 5-6, 772 So.2d at 799. In Courtland, a sandblaster was diagnosed with silicosis; he filed suit in Texas; and, while his suit was pending in Texas in 1997, he died. Id., 00-333 p. 4, 772 So.2d at 798. Mr. Courtland’s widow and three children filed suit in Louisiana in 1999, citing Guidry v. Theriot, supra, and arguing that their suit was a continuation of Mr. Courtland’s original action and that the one-year period provided by Article 2315.1 was inapplicable to suits in which the tort victim instituted an action during his lifetime. Id., 00-333 pp. 4-6, 772 So.2d at 798-799. The fifth circuit reviewed the supreme court’s reasoning in Guidry v. Theriot that the 1960 enactment of the Code of Civil Procedure and the simultaneous amendment to Civil Code art. 2315 expressed a legislative intent to make tort actions no longer abate at the death of the victim when the action was instituted during the lifetime of the victim. Id., 00-333 pp. 7-8, 772 So.2d at 799-800. The court held that when a tort victim has not instituted an action in Louisiana into which his survivors can be substituted, the survivors’ action is governed by Article 2315.1, as opposed to the provisions on abandonment. Id., 00-333 pp. 8-9, 772 So.2d at 800. No mention was made of the 1986 amendment to Civil Code art. 2315.1 describing the delay as “prescriptive.”

Inin Adams, the plaintiffs’ claims had been dismissed with prejudice for failing to state a cause of action. Adams, 41,028 p. 1, 930 So.2d at 343. The appellants argued that the delay in Article 2315.1 is prescriptive rather than peremptive and that the tort victim’s filing suit in Texas served to interrupt prescription; however, the record failed to establish that the tort victim had actually filed suit in Texas. Id., 41,028 pp. 2-3, 930 So.2d at 344. The second circuit found that “[t]he one year limitation period applicable to survival actions has been held to be peremptive rather than prescriptive. Jones v. Philco-Ford Corp., 452 So.2d 370 (La.App. 1st Cir.1984), writs denied, 457 So.2d 1193 (La.1984) and 457 So.2d 1198 (La.1984); and McClendon v. State, 357 So.2d 1218 (La.App. 1st Cir.1978).” This quote is the extent of the court’s analysis, and, notably, all authority cited for the position that the delay is peremptive pre-dates the 1986 amendment adding Article 2315.1.

In Barber, the appeal dealt with the wrongful death and survival actions filed on behalf of ten deceased former employees, whose injuries were caused by exposure to toxic materials. Barber, 11-0357 p. 2, 97 So.3d at 458. There, the first circuit found that “[t]he one-year limitation period applicable to survival actions has been held to be peremptive, rather than prescriptive” and cited as authority for its position Adams, supra; Courtland, supra; Jones, supra; and McClendon, supra. Id., 11-0357 pp. 7-8, 97 So.3d at 462. As explained ante, none of the cases cited acknowledges that Article 2315.1 was amended in 1986, and Jones and McClen-don even pre-date the amendment.

The first circuit in Barber, unlike the Adams and Courtland decisions, acknowledged that the article was amended in 1986; however, it failed to mention the plainly relevant language in Article 2315.1 C, instead finding that “the Impertinent time-limit language remained the same” and relying on the statutory interpretation found in Guidry v. Theriot interpreting Article 2315 as it existed in 1979. Id., 11-0357 p. 8, 97 So.3d at 462.

C

In our final analysis, however, we conclude that Guidry v. Theriot could not control the outcome today because of the intervening 1986 amendment to the Civil Code which explicitly describes the one-year limitation period for a survival action as prescriptive. “A long line of jurisprudence holds that those who enact statutory provisions are presumed to act deliberately and with full knowledge of existing laws on the same subject, with awareness of court cases and well-established principles of statutory construction, with knowledge of the effect of their acts and a purpose in view.” Borel, 07-0419, p. 7, 989 So.2d at 48. And that, Borel importantly continues, “when the Legislature changes the wording of a statute, it is presumed to have intended a change in the law.” Id., 07-0419, pp. 7-8, 989 So.2d at 48. As a result of and since the 1986 amendment, the limitation period for a survival action definitively accords with the limitation period for a wrongful death action, both being prescriptive periods.

_hsiv

We next turn our attention to Ms. Watkins’ assertion that her claims for exemplary damages in connection with both her survival and wrongful death claims were wrongly denied. The precise objection made by the defendants and sustained by the trial court was that of no cause of action. See La. C.C.P. art. 927 A(5). See Anderson v. Avondale Industries, Inc., 00-2799 (La.10/16/01), 798 So.2d 93.

With respect to her claim for exemplary damages in connection with her wrongful death claim, the law for us is settled that such damages are foreclosed to her. We have held that exemplary damages could not be awarded in conjunction with a wrongful death action because a wrongful death action compensates a survivor for injuries suffered by the survivor who was not exposed to the toxic materials. See Bulot v. Intracoastal Tubular Services, Inc., 04-1376, p. 6, 888 So.2d 1017, 1021 (La.App. 4 Cir.2004); see also Bailey v. Exxon Mobil Corp., 11-0177, p. 3 (La.App. 4 Cir. 8/31/11), 76 So.3d 53, 55.

With respect to her claim for exemplary damages in connection with her survival claim, we are satisfied that the factual allegations of her petition do not currently support a cause of action. But, unlike exemplary damages on the wrongful death claim, such damages are not per se foreclosed to her. With respect whether Ms. Watkins has a right to demand exemplary damages in connection with her survival action, we find that Bulot controls here. See Bulot, 04-1376, p. 8, 888 So.2d at 1021.

Because of the limited time period in which former Article 2315.3 was in effect, in order for a plaintiff to state a cause of action under the article, the plaintiff must plead facts sufficient to show that her decedent’s exposures to radioactive material on the job site between September 4, 1984 (the Article’s | Meffective date) and the date of his death resulted in his developing a disease such as cancer. See Bulot, 04-1376, p. 5, 888 So.2d at 1021.

REMAND INSTRUCTION

We remand this matter to the trial court with the following instruction:

The plaintiff shall be permitted to amend her petition under La. C.C.P. art. 934 within thirty days of the finality of this judgment in order to remove the grounds for the objection and thereby state a cause of action for exemplary damages related to her survival action under former La. Civil Code art. 2315.3.

DECREE

The portion of the February 17, 2012 trial court judgment under review which sustained the oil company defendants’ exception of no cause of action with respect to exemplary damages is amended in part to permit the plaintiff to amend her petition to remove the objection within thirty days of the date of the finality of this judgment, and, as amended, we affirm.

The judgment of February 29, 2012, which sustained the oil company defendants’ exception of peremption, is vacated.

We remand to the trial court for further proceedings in accord with our instructions.

JUDGMENT OF FEBRUARY 17, 2012 AMENDED IN PART AND, AS AMENDED, AFFIRMED AND REMANDED; JUDGMENT OF FEBRUARY 29, 2012 VACATED AND REMANDED

TOBIAS, J., concurs and assigns reasons.

TOBIAS, J.,

concurs and assigns reasons.

Iil respectfully concur and assign reasons.

I.

I first note, lest someone overlook the issue, that we are not deciding that the plaintiff can recover from any defendant for damages related to TENORM or NORM. We are only deciding the issues of whether La. C.C. art. 2315.1 provides a prescriptive or peremptive period and whether the plaintiffs petition states a cause of action for exemplary damages.

Secondly, my view of the issues before us is significantly colored by the history of article 2315.1, which, in my view, makes it clear that the issue of whether article 2315.1 is prescriptive or peremptive is an exceedingly close question.

Although it may be premature to determine whether La. C.C. art. 2315.1A is per-emptive and not prescriptive, I find the issue ripe for decision because a | ^definitive interpretation of the codal article will determine whether the parties must proceed with further extensive and expensive litigation.

II.

Although the Louisiana Supreme Court has indicated that “legislators are presumed to know the law,” State ex rel. Varnado v. Louisiana Highway Commission, 177 La. 1, 7, 147 So. 361, 362 (La.1933), I find as a general principle that when the legislature chooses one word over another in a law, the word used means exactly what an ordinary definition of that word means. A court, in my view, should generally give the generally accepted definition to a word (La. R.S. 1:2-3; La. C.C. art. 9), and if the legislature meant something else, then it can amend the law and change the word. To me, prescription should mean prescription and not mean peremption.

In my study of the issue presently before us, unlike the majority, I attach more significance to the legislative and jurisprudential history of article 2315.1. That history begins with La. C.C. art. 2315, where the survival action was first created in the Revised Civil Code of 1870.

Article 2315 of the Revised Civil Code of 1870 provided:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the minor children and widow of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, for the space of one year from the death. [Emphasis supplied.]

Amendments in 1884 amended and reenacted the article to read as follows:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the minor children or widow of the deceased, or either of them, and in default of these, in favor of the surviving father and mother, or either of them, for the space of one year from the death. The survivors above | ^mentioned may also recover the damages sustained by them by the death of the parent or child, or husband or wife, as the case may be.

A 1908 amendment amended and reenacted this article to read as follows, in pertinent part:

Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children or widow of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving brothers and sisters or either of them, for the space of one year from the death; provided, that should the deceased leave a widow together with minor children, the right of action shall accrue to both the widow and minor children; provided further, that the right of action shall accrue to the major children only in those cases where there [is] no surviving widow or minor child or children.
The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters as the [case] may be. [Emphasis supplied.]

In 1918, an amendment changed this article to read the same as the 1908 version, except that the words “widow” and “surviving widow” were replaced with “surviving spouse.”

A 1982 amendment amended and reenacted this article to read as follows:

Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children, including adopted children, or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving brothers and sisters, or either of them, for the space of one year from the death; provided that should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and minor children; provided further, that the right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children.
If the above right of action exists in favor of an adopted person, such right of action shall survive in case |4of death in favor of the children or spouse of the deceased, or either of them, and in default of these in favor of the surviving adoptive parents, or either of them, and in default of any of the above persons, then in favor of the surviving children of the adoptive parents, or either of them, and in default of these in favor of the surviving father and mother of the adopted person, or either of them, and in default of these, then in favor of the surviving brothers and sisters of the adopted person, or either of them, for the space of one year from the death.
The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters or adoptive parent, or parents, or adopted person, as the case may be. [Emphasis supplied.]

Section 2 of the amendatory Act of 1932 repealed all laws or parts of laws that may have been in conflict.

The 1948 amendment amended and reenacted this article to read as follows:

Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of his action shall survive in case of death in favor of the children, including adopted children and children given in adoption, or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving blood brothers and sisters, or either of them, for the space of one year from the death. However, should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and the minor children. The right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children.
If the above right of action exists in favor of an adopted person, it shall survive in case of death in favor of the children or spouse of the deceased, or either of them, and in default of these in favor of the surviving adoptive parents, or either of them, for the space of one year from the death. However, this right of action shall survive in favor of the blood parent or parents to the exclusion of the adoptive parent or parents when at the time of the adoption the adopted was a major, or emancipated minor whose adoption was effected without the consent of the blood parent or parents evidenced in the act of adoption. In default of these, it shall survive in favor of the surviving blood brothers and sisters of the adopted person, or either of them, for the space of one year from the death.
| -The survivors above mentioned may also recover damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters or adoptive parent, or parents, or adopted person, as the case may be. [Emphasis supplied.]

Section 2 of the amendatory act that once again repealed all laws or parts of laws in conflict therewith.

La. Acts 1960, No. 30, § 1, amended and reenacted the article and article heading to read as follows:

Art. 2815. Liability for acts causing damage; survival action
Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
As used in this article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father and mother by adoption, respectively. [Emphasis supplied.]

Other sections of the amendatory act of 1960, in addition to specifically repealing a number of articles, again repealed all laws or parts of laws in conflict | fiof inconsistent with the act and made the act effective 1 January 1961, contingent upon the adoption of the Code of Civil Procedure [La. Acts 1960, No. 15].

La. Acts 1982, No. 202, amended Article 2315 to read as follows:

Art. 2315. Liability for acts causing damage; survival action
Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
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.
The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
As used in this article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father and mother by adoption, respectively. [Emphasis supplied.]

The 1984 amendments to article 2315 substituted “damages” for “damage” in the article heading and added in the third paragraph, a second sentence:

As used in this Paragraph, property damages may include expenses or monetary obligations necessarily incurred by the obligee on account of such offense or quasi-offense; however, if the obligee is survived by any beneficiary enumerated in the following Paragraph of this |7Article, such expenses or obligations shall be recoverable by said beneficiaries.

In the third sentence of the fourth paragraph, the word “the” following the words “right to recover” was deleted. Pursuant to the statutory revision authority of La. R.S. 24:253, the Louisiana State Law Institute made the following paragraph and subparagraph designations to Article 2315, as amended in 1984:

Art. 2315. Liability for acts causing damages; survival action
A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
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.
C. (1) The right to recover damages to property caused by an offense or quasi-offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
(2) As used in this Paragraph, property damages may include expenses or monetary obligations necessarily incurred by the obligee on account of such offense or quasi-offense; however, if the obligee is survived by any beneficiary enumerated in the following Paragraph of this Article, such expenses or obligations shall be recoverable by said beneficiaries.
D. (1) The right to recover all other damages caused by an offense or quasi-offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of:
(a) the surviving spouse and child or children of the deceased, or either such spouse or such child or children;
(b) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and
(c) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
(2) The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased.
(3) A right to recover damages under the provisions of this Paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
lnE. As used in this article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father and mother by adoption, respectively. [Emphasis supplied.]

La. Acts 1986, No. 211, amended this article and enacted new La. C.C. arts. 2315.3 (the survival action) and 2315.4 (the wrongful death action). Act 211 severed the provisions dealing with the survival action and the wrongful death action from article 2315 and transferred the language into those new articles. Pursuant to La. Acts 1986, No. 211, Article 2315.3, as originally enacted, provided the following:

Art. 2315.3. Survival Action

If a person who has been injured by an offense or quasi-offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi-offense, shall survive for a period of one year from the death of the deceased in favor of:
(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; and
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent living.
In addition, the right to recover medical expenses and funeral expenses only may be urged by the decedent’s succession representative in the absence of any class of beneficiary set out in the preceding Paragraph.
The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
As used in this Article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father, and mother, by adoption, respectively. [Emphasis supplied.]

Articles 2315.3 was redesignated as article 2315.1 pursuant to the statutory revision authority of the Louisiana State Law Institute to as follows:

Art. 2351.1. Survival Action

|;A. If a person who has been injured by an offense or quasi-offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi-offense, shall survive for a period of one year from the death of the deceased in favor of:
(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; and
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
B. In addition, the right to recover medical expenses and funeral expenses only, may be urged by the decedent’s succession representative in the absence of any class of beneficiary set out in the preceding Paragraph.
C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
D.As used in this Article, the words “child”, “brother”, “sister”, “father”, and “mother” include child, brother, sister, father, mother by adoption, respectively. [Emphasis supplied.]

This is the version of the statute that was in effect at the time of Mr. Hicks’ passing and is the law applicable to the cause of action at issue in this case.

In Louisiana courts have previously held the above emphasized language of the former article 2815 and/or the present article 2815.1 A to be peremptive. See, e.g., Barber v. Employers Ins. Co. of Wausau, 11-0357, pp. 7-9 (La.App. 1 Cir. 6/28/12), 97 So.3d 454, 462-63; Adams v. Asbestos Corp., Ltd., 41,028, pp. 4-5 (La.App. 2 Cir. 5/17/06), 930 So.2d 342, 344-45; Courtland v. Century Indemnity Co., 00-333, p. 10 (La.App. 5 Cir. 10/18/00), 772 So.2d 797, 801; Jones v. PhilcoFord Corp., 452 So.2d 370, 372 (La.App. 1st Cir.1984); Harris v. Guardian Funds, Inc., 425 So.2d 1322, 1324 (La.App. 4th Cir.1983); McClendon v. State, 357 So.2d 1218, 1223 (La.App. 1st Cir.1978); Marvin v. Toye Bros. Yellow Cab. Co., 214 So.2d 196, 197 (La.App. 4th Cir.1968); Succession of Roux v. Guidry, 182 So.2d 109, 110 (La.App. 4th Cir.1966); Miller v. American Mut. Liability Ins. Co., 42 So.2d 328, 220 (La.App. 1st Cir. 1949); see also Ashcroft v. Louisiana Coca-Cola Bottling Co., Ltd., 658 F.Supp. 772 (E.D.La.1987). This is not necessarily an unreasonable interpretation because (a) the former article 2315 did not use the word, or a derivative of the word, “prescription;” (b) the language sounds per-emptive because the legislature states that the cause of action “shall survive for a period of one year;” and (c) the cause of action for damages belonging to the decedent could have been asserted by the deceased before his death, but was not, and the decedent’s survivors by statute were granted the right to assert it for one year from the decedent’s death. Stated another way, the article suggests that a cause of action for the injured person could be asserted during the |i2injured person’s lifetime (subject to the La. C.C. 3492 prescriptive period) and the injured person’s survivors had but one year to assert the cause of action following the deceased’s death if the injured person did not timely assert the cause of action during his/her lifetime.

III.

La. C.C. art. 2315.1C states:

The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article. [Emphasis supplied.]

As noted above, it became law by virtue of by La. Acts 1986, No. 211, § 2, and became effective on 15 August 1986. Article 2315.1C appears to have been taken from La. C.C. art. 2315D (3); article 2315D was repealed when article 2315.1 was added to the Civil Code.

The question then becomes whether the legislature by using the words “prescriptive period” in article 2315.1C consciously intended to overrule the jurisprudence that had interpreted the language of article 2315A as a peremptive period?

A more extensive examination of the legislative history of La. Acts 1986, No. 211, shows the following:

First, that which became Act 211 began its legislative journey as Senate Bill No. 130. The Louisiana Legislative Council’s comments to the bill, as filed, notes in pertinent part:

New laiu retains the prior law.

Neio laiu deletes from C.C. Art. 2315 those provisions in the prior law regarding the survival of an action for damages for damages and damages for wrongful death but adds C.C. Arts. 2315.3 and 2315.4....

|13 Ambiguity exists in what the comment “Neio law retains the prior law” means. That is, does the word “law” refer solely to the statutory law or does it reference both statutory law and jurisprudential interpretation of the statutory law? If the Legislative Council meant that no change was made in the literal language of the first paragraph of article 2315.1, then one could presume that the addition of the word “prescriptive” to the third paragraph of article 2315.1 retained the old law. But if the Legislative Council meant both statutory law and jurisprudential interpretation thereof, then the addition of the word “prescriptive” in the third paragraph changed the law. One would presume that the Legislative Council researched the jurisprudence. I have personal doubts as to whether the Legislative Council knew when drafting the comment that the prior interpretation of article 2315D(1) was that the one year period was peremptive; I think the author of the comment merely meant that no change was made in the literal language of the law. By using the words “prescriptive period defined in this Article,” I think the author of the bill understood the one year period to be merely prescriptive without consideration of the jurisprudence that interpreted the language as peremptive. My review of the published comments and summaries attached to the bill as at it proceeded through the legislative process sheds no light on the issue.

I choose to rely on the literal language used in the law, to-wit, “prescriptive” meant prescriptive and not peremptive. The law was changed.

_kiv.

Regardless of whether article 2315.1 is prescriptive or peremptive, the error of the trial court once it sustained the exception of no cause of action was not following the mandates of La. C.C.P. art. 934 and directing that the plaintiff be permitted to amend the petition to allege when Mr. Hicks’ cancer was diagnosed, when Mr. Hicks came into contact with TENORM, and the source of the TENORM after 3 September 1984, the date that the former Civil Code article on exemplary damages became effective. I agree with the remand of this matter to the trial court to require the plaintiff to allege more facts concerning Mr. Hicks’ diagnosis of cancer and the dates between 4 September 1984 and 27 December 1986 when Mr. Hicks could have come into contact with TE-NORM.

      . The exceptions were filed by Exxon Mobil Corporation, Exxon Mobil Oil Corporation, Humble, Inc., Chevron U.S.A., Inc., Shell Oil Company, Marathon Oil Company, OXY U.S.A., Inc., and BP America Production Company.

      . This is the judgment dated February 29, 2012.

      . This judgment was rendered on February 17, 2012 and disposed of numerous other matters as well, for none of which any party has sought review. We note, parenthetically, Ms. Watkins filed an appeal from that judgment in proceedings before us numbered 2012-CA-0918. On August 2, 2012, on the oil company defendants' motion, we dismissed that appeal "[bjecause the judgment from which an appeal is sought is an interlocutory judgment which has not been designated as final, see La. C.C.P. art. 1915 B( 1) and Favrot v. Favrot, 10-0986 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1103.” We, however, retained the record on appeal in connection with the issuance of the writ of certiorari.

      . Former La. Civil Code art. 2315.3 provided: "In addition to general and special damages, exemplary damages may be awarded, if it is proved that plaintiff's injuries were caused by the defendant’s wanton or reckless disregard for public safety in tire storage, handling, or transportation of hazardous or toxic substances. As used in this Article, the term hazardous or toxic substances shall not include electricity.” This Article was in effect from September 4, 1984 until April 16, 1996. See Anderson v. Avondale Industries, Inc., 00-2799, p. 3 (La. 10/16/01), 798 So.2d 93, 96.

      . For more extensive information about NORM or TENORM (technologically enhanced naturally occurring radioactive materials), see, generally, James R. Cox, Naturally Occurring Radioactive Materials in the Oil Field: Changing the NORM, 67 Tul. L.R. 1197 (1993); Grefer v. Alpha Technical, 02-1237 (La.App. 4 Cir. 8/8/07), 965 So.2d 511. Although the human senses cannot detect its presence, prolonged exposure to TENORM drastically increases the chances of developing certain diseases such as cancer and has devastating effects on plant and animal life. Cleaning TENORM is both expensive and dangerous. One source of TENORM is the mud that collects against the inside of pipes used for extracting oil and natural gas. When these pipes are cleaned, the mud can contaminate the land it falls onto.

      .The current version of La. Civil Code art. 2315.1 was enacted as Article 2315.3 and then redesignated as Article 2315.1 in 1986. See Historical and Statutory Notes under La. Civil Code art. 2315.1 (West 2010). The exemplary damages provision quoted in footnote 4, ante, was enacted as Article 2315.1 and re-designated in 1986 as Article 2315.3. See id.

      . For the sake of completeness but so as to not distract from the discussion we point out that Guidry v. Theriot was expressly repudiated on other grounds by Louviere v. Shell Oil Co., 440 So.2d 93, 97 (La. 1983) with respect to language regarding the interpretation of a prescriptive period for a wrongful death action.

      . Notably, when 1986 Acts No. 211 emerged from the legislature (and was initially designated as Article 2315.3) there were no identifiable paragraph subsections such as A, B, or C. These designations were added by the Louisiana State Law Institute under its statutory revisions authority.

      . The case was resolved on abandonment grounds, not on whether the statute called for prescription or peremption. The facts of Miller are substantially similar to the facts in Guidry v. Theriot: in each case, the victim of a tort who filed suit, died before the suit was resolved, and the tort victim’s survivors waited more than one year before continuing the decedent’s suit. Miller held that the new plaintiffs' attempt to substitute themselves as plaintiffs, less than three years after the death of the decedent, was perempted. See Miller, 42 So.2d at 331. Guidry v. Theriot, however, held that the substituted plaintiffs in a suit brought by the decedent were entitled to the abandonment period found in La. C.C.P. art. 561 within which to take a step in the prosecution of the suit. 377 So.2d at 324.

      . We note that it is not necessary for us to decide definitively whether the pre-amendment time limitation on a survival action was peremptive in order to reach the result in this matter. Ms. Watkins’ survival action only came into being on the date of her father's death which occurred post-amendment. Of course, if Mr. Hicks' right to recover damages for the offense or quasi-offense under La. Civil Code art. 2315 had already prescribed by the time of his death, then Ms. Watkins has no survival action to enforce. See Taylor v. Giddens, 618 So.2d 834, 842 (La. 1993); see also In re Brewer, 05-0666, p. 5 (La.App. 1 Cir. 5/5/06), 934 So.2d 823, 827. And there can be no question that that the one-year limitation on Mr. Hicks’ action to recover damages under La. Civil Code art. 2315 is a prescriptive and not a peremptive period. See La. Civil Code art. 3492.

      . Noting the history of the discovery of TE-NORM as set forth in Grefer v. Alpha Technical, 02-1237, pp. 1-6 (La.App. 4 Cir. 3/31/05), 901 So.2d 1117, 1124-26, it appears that the plaintiff will have a difficult time proving that it is more likely than not that Mr. Hicks came into contact with TENORM while working at an oilfield pipe cleaning operation before his 1986 death. Approximately 27 years after Mr. Hicks’ death, it is certainly questionable that records still exist to show that oilfield TENORM-contaminated pipe was cleaned at a site that Mr. Hicks frequented and that Mr. Hicks' illness was more likely than not caused by TENORM and not some other thing or reason.

      . For completeness, the post-1986 amendments are as follows:
      A 1987 amendment to article 2315.1, in paragraph B, substituted "all damages for injury to the decedent, his property or otherwise, caused by the offense or quasi offense,” for "medical expenses and funeral expenses only”.
      Art. 2351.1. Survival Action
      A. If a person who has been injured by an offense or quasi-offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi-offense, shall survive for a period of one year from the death of the deceased in favor of:
      (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; and
      (3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
      B. In addition, the right to recover all damages for injury to the decedent, his property or otherwise, caused by the offense or quasi offense, may be urged by the decedent’s succession representative in the absence of any class of beneficiary set out in the preceding Paragraph.
      C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
      D. As used in this Article, the words "child”, "brother”, "sister", "father”, "mother" include child, brother, sister, father, mother by adoption, respectively. Article 2315.1 was last amended in 1997.
      The 1997 amendments include: (a) in paragraph A, dehyphenated "quasi offense” following "offense or” twice in the introductory paragraph, in subparagraph A(3), substituted "; and” for the period at the end of the subparagraph, and added subparagraph (4); (b) in paragraph B, substituted "deceased” for "decedent” and "deceased's” for "decedent’s”; (c) in paragraph D, deleted “and” preceding "mother” and inserted ", 'grandfather', and ‘grandmother’ ” following "mother” in two instances; and (d) added paragraph E. Additionally, pursuant to the statutory revision authority of the Louisiana State Law Institute, a period was substituted for the punctuation at the end of subparagraphs A(l) to (3) and "and” was deleted from the end of subparagraph A(3); and in paragraph B, "Paragraph A” was substituted for "the preceding Paragraph”. Article 2315.1 currently reads:
      Art. 2315.1. Survival Action
      A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
      (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 and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
      (4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or child surviving.

        B. In addition, the right to recover medical expenses and funeral expenses only, may be urged by the deceased’s succession representative in the absence of any class of beneficiary set out in Paragraph A.
      C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
      D. As used in this Article, the words ''child”, "brother”, "sister”, "father”, “mother”, "grandfather”, and "grandmother” include child, brother, sister, father, mother, grandfather, grandmother by adoption, respectively.
      E.For purposes of this Article, the words “child”, "brother", "sister”, "father”, "mother”, "grandfather”, and "grandmother” include child, brother, sister, father, mother, grandfather, grandmother by adoption, respectively.

      . See Guillory v. Avoyelles Ry. Co., 104 La. 11, 15, 28 So. 899, 901 (1900); and Guidiy v. Theriot, 377 So.2d 319, 325 (La.1979) (repudiated on other grounds in Louviere v. Shell Oil Co., 440 So.2d 93, 97 (La.1983)).

      . Actually, article 2315.3 in the act.

      . Ibid.

        . When the Louisiana State Law Institute re-designated the originally enacted article 2315.3 as article 2315.1, it added the letter designations to the paragraphs, which obfuscated the interconnection of the four paragraphs in the original article. This reinforces the argument that a change was made in the law to make article 2315.1 prescriptive as opposed to peremptive.

      . Of course, such information can be simply determined in discovery and the matter addressed in a motion for partial summary judgment without impacting or implicating the issues of prescription or preemption.


source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge.

license: Public Domain

text:
    Joyce WHETSTONE v. JEFFERSON PARISH SCHOOL BOARD.
    No. 12-CA-639.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2013.
    Rehearing Denied June 26, 2013.

      Michael A. Britt, Attorney at Law, Ken-ner, LA, for Plaintiff/Appellant.
    Olden C. Toups, Jr., Grant & Barrow, Attorney at Law, Gretna, LA, for Defen-danVAppellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

Claimant, Joyce Whetstone, appeals a determination of the Office of Workers’ Compensation that denied her continued benefits for an alleged mental injury caused by post-traumatic stress related to an assault sustained within the course and scope of her employment. For the reasons that follow, we affirm.

Facts

In February 2001, claimant was an employee of the Jefferson Parish School Board, assigned as a special education teacher at T.H. Harris Middle School. Specifically, claimant, with the help of an assistant, taught four autistic children, including a 12-year old male. On February 22, 2001, claimant observed the 12-year old boy slap her assistant, Teresa Brown. Claimant attempted to render aid to her assistant and in the process was also physically assaulted by the boy. Other members of the staff witnessed the assault. Claimant returned to work immediately, but complained of and sought medical treatment for pain resulting from the assault; namely in her neck, shoulder, arm, breast and back. Claimant continued to work until March 15, 2001, and did not return to work again until October 27, 2001, when she worked only half the day. Claimant did not return to T.H. Harris, claiming she suffered from post-traumatic stress disorder. Claimant received assault pay pursuant to La. R.S. 17:1201 from March 15, 2001, until October 15, 2005, as well as medical benefits. Upon the termination of assault pay in 2005, claimant filed the instant workers’ compensation action against the school board for continued benefits.

At trial, it was learned that claimant received treatment from several doctors over the course of several years following the February 2001 assault.

Upon conclusion of the trial, the workers’ compensation court ruled in favor of the school board and dismissed claimant’s petition with prejudice. Specifically, the workers’ compensation judge did not find claimant to be credible and did not find any merit to her claim. On appeal, claimant asks this Court to reverse the credibility determinations and factual findings of the workers’ compensation judge.

Discussion of the Law

To prove entitlement to benefits for a mental injury resulting from mental stress, a claimant must prove that the mental injury was caused by “sudden, unexpected, and extraordinary stress related to employment” and must prove it by clear and convincing evidence. Renter v. Willis-Knighton Medical Center, 28,589 (La.App. 2 Cir. 8/23/96), 679 So.2d 603; Cressionnie v. Fisk Elec., 93-931 (La.App. 5 Cir. 2/14/96), 671 So.2d 3; Jeansonne v. Wick Publishing Co., 94-462 (La.App. 5 Cir. 11/29/94), 646 So.2d 1212.

La. R.S. 23:1021(8)(b) and (d) state:

(8)(b) Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

Not only must the stress be extraordinary, it must be sudden and unexpected. Favorite v. Louisiana Health Care Authority, 98-721 (La.App. 5 Cir. 12/16/98), 725 So.2d 556; Bass v. Farmer & Cheatham, 94-1281 (La.App. 1 Cir. 6/30/95), 658 So.2d 324. Also, the statute requires that the extraordinary stress cause the mental injury. Joseph v. Jefferson Parish Fire Dept., 99-1300 (La.App. 5 Cir. 5/30/00), 761 So.2d 801, 802.

Moreover, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Dean v. Southmark Construction, 03-1051 (La.7/6/04), 879 So.2d 112, 117; Brown v. Coastal Construction Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir. 6/27/03), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 105.

Assignments of Error Nos. 1 & 2

In her first and second assignments of error, claimant asserts that the workers’ compensation judge’s credibility determinations were manifestly erroneous. Specifically, claimant asserts that the judge erred in finding that she was not credible and in determining that Ms. Old-ham and Ms. Guidry’s testimony regarding the events surrounding the February 2001 incident to be more credible than claimant’s testimony.

As to the claimant’s credibility, the worker’s compensation judge made clear that he did not find claimant to be a credible witness. This finding is amply supported by the record. Claimant’s testimony at trial was inconsistent, evasive, and repeatedly impeached with her prior deposition testimony. One such major inconsistency included her inconsistent reporting of fibromyalgia to different doctors. At one point during trial, claimant testified that she never told doctors that she had fibromyalgia. She then stated that she may have told doctors that she had fibro-myalgia. Finally, she testified that she did tell doctors that she suffered from fibro-myalgia for 20 years. Furthermore, claimant’s testimony regarding the course of her treatment and dealings with the school board was consistently contradicted and impeached by witness after witness.

Regarding the credibility of Ms. Karen Oldham and Ms. Brenda Guidry regarding the events of February 2001, the workers’ compensation judge found their testimony credible. Ms. Oldham and Ms. Guidry are Special Education Co-Chairs at T.H. Harris. Although they did not witness the February 2001 assault, both witnesses testified as to what claimant told them regarding the assault.

Ms. Oldham testified that claimant told her that the boy pushed on her shoulders. She also testified that claimant complained that her right hand was numb in the midst of holding a coffee cup in her right hand. And, she testified that the boy was likely in high school in October 2001 when claimant testified that the child was still in her class and refused to take him to community service day based on the assault.

Ms. Guidry testified that claimant told her that the assault brought on increased pain from her pre-existing fibromyalgia. Claimant told her that the boy struck her on her shoulders and upper chest. Ms. Guidry testified that claimant’s assistant, Teresa Brown, did not leave the school immediately after the assault, as claimant testified, but that Ms. Brown stayed until Hurricane Katrina. She also testified that Ms. Eli, claimant’s substitute assistant, did not leave the school as a result of a biting incident in March 2001, as claimant testified, but stayed until the end of the year as a permanent substitute.

Again, we do not find that the judge’s credibility determinations regarding Ms. Oldham and Ms. Guidry’s testimony to be unreasonable. As previously stated, claimant’s credibility was put into question by her own inconsistent testimony and nothing in the record exists to contradict or impeach Ms. Oldham and Ms. Guidry’s version of events other than claimant’s testimony.

As stated above, where there is a conflict in testimony, reasonable evaluations of credibility will not be disturbed on review. Robinson, 865 So.2d 98 at 105. Here, we do not find that the workers’ compensation judge’s credibility determinations to be unreasonable or clearly wrong; therefore, we will not disturb such determinations on review.

Assignment of Error No. 3

In her third assignment of error, claimant asserts that the workers’ compensation judge’s findings of fact were erroneous, namely its determination that the claimant did not sustain a disabling mental injury. Again, the findings of the workers’ compensation judge will not be set aside by a reviewing court unless’ they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Viewing the record in its entirety, we do not find that the judge’s finding is clearing wrong.

Pursuant to La. R.S. 23:1021, the claimant bears the burden of proving, through clear and convincing evidence, that she sustained a mental injury resulting from sudden, unexpected, and extraordinary stress relating to her employment. Instantly, claimant avers that she suffers from post-traumatic stress disorder resulting from the February 22, 2001, assault that left her disabled and unable to return to work in the Jefferson Parish School System.

As indicated above, there is no dispute between the parties that claimant was assaulted by a student while in the course and scope of her employment with the school board. Therefore, we need only determine whether claimant sustained a mental injury resulting from sudden, unexpected, and extraordinary stress resulting from the assault. The deposition and trial testimony reveal the following sequence of events regarding claimant’s diagnoses and treatment:

The day following the assault, February 23, 2001, claimant testified that she saw chiropractor, Jeffery Burns. That following Monday, she testified that she went to the emergency room, where she saw Dr. Raymond, an internist, who advised that she see an orthopedist for pain.

Beginning in March 2001, on referral of Dr. Raymond and with approval of the school board, claimant saw Dr. Sketchier, an orthopedist. In May 2001, Dr. Sketchier indicated in a report that it was a good idea that claimant see Dr. Bianchini, Ph.D. for psychological treatment as suggested by the school board.

Dr. Bianchini, neuropsychologist, administered several psychiatric tests to claimant, ultimately reporting that claimant did not have disabling psychological problems and was capable of returning to any job for which she was qualified. However, Dr. Bianchini recommended that claimant go to an outpatient program such as the Medical Musculoskeletal Institute (“MMI”) for a multi-disciplinary approach to claimant’s continued complaints.

Moreover, in June 2001, Dr. Sketchier indicated that he probably could not help claimant any further and agreed with Dr. Bianchini’s formal recommendation that claimant be referred to MMI for treatment and would continue to see claimant only as needed.

Notwithstanding, before approving a multi-disciplinary approach such as MMI, the school board referred claimant to Dr. Aiken, another orthopedist, for a second opinion. Claimant saw Dr. Aiken in October 2001, November 2003, and June 2006. Dr. Aiken testified at trial that upon physical examination of claimant, his findings were inconsistent with her physical complaints and that her reactions to the physical exam were exaggerated. Upon completion of claimant’s second visit, Dr. Aiken concluded that she was no longer suffering any ill-effects of the assault and reported that pain management was no longer necessary. Dr. Aiken testified that there was no physical limitation keeping claimant from returning to work as a special education teacher.

Also in October 2001, upon returning to work for a half day, claimant experienced a spike in blood pressure and consulted Dr. Roberts, her OB/GYN, regarding her blood pressure and pain in her breast. Dr. Roberts issued a doctor’s note for two missed work days, although claimant never returned to work thereafter.

Furthermore, despite Dr. Aiken’s opinion that there was no physical limitation keeping claimant from work, Dr. Sketchier, Dr. Bianchini and claimant’s attorney continued to recommend to the school board that it approve the outpatient multidisciplinary treatment at MMI, which was ultimately approved in a final effort by the school board to return claimant to work. Therefore, in December 2001, claimant began treatment at MMI, where she saw a physical and occupational therapist, clinical psychologist Dr. Bushman, and Dr. Orten-berg, M.D. By March 2002, Dr. Orten-berg was of the opinion that claimant was at maximum medical improvement and was capable of returning to work with the accommodations recommended based upon the jobsite analysis performed by Jeffrey Carlisle. Upon learning that she was released to return to work, claimant told Dr. Bushman that although the school board was making it easy for her to return to work, she had made up her mind not to return to the classroom and that she was going to get other doctors to say she could not return to work, while continuing to complain of pain and anxiety.

Meanwhile, Dr. Sketchier continued to treat claimant but recommended that she see a psychiatrist and indicated that he wished to discharge her as a patient. It appears that authorizations were in place for claimant to see a Dr. Walsh and a Dr. Guile, but claimant did not keep her appointments with either psychiatrist. Meanwhile, MMI continued to issue reports, including a November 2002 report indicating that claimant suffered from anxiety and depression requiring psychiatric management. However, the report indicated that claimant’s personality and adjustment difficulties likely pre-existed her work-related injury.

In November 2003, claimant returned to Dr. Bianchini, who reported claimant to be malingering and that he continued to believe that claimant could return to work. Dr. Aiken additionally saw claimant in November 2003, again maintaining his opinion that she could return to work. Moreover, MMI gave a second evaluation in April 2004, finding claimant at maximum medical improvement.

Claimant additionally saw several other psychiatrists through her private insurance, including Dr. Roniger in 2003. Claimant admitted seeing Dr. Roniger only three times and did not discuss the 2001 assault, seeking treatment for depression only. Moreover, Dr. Roniger’s diagnosis was pain disorder and stated that claimant did not present as having post-traumatic stress disorder. Ultimately, claimant decided Dr. Roniger’s office was not conveniently located and began seeing Dr. Chester upon the continued advice to see a psychiatrist. Moreover, due to insurance reasons, claimant stopped seeing Dr. Chester and began seeing Dr. Henderson in 2006.

Claimant saw Dr. Henderson from July 2006 through November 2010. Dr. Henderson testified at trial on claimant’s behalf. He testified that at the initial visit, his impressions and final diagnosis were post-traumatic stress disorder, depression and chronic pain disorder, but noted that her mood and anxiety level, although significant, were not disabling. He admitted that his diagnosis was based upon Dr. Chester’s impressions. Dr. Henderson thought it unadvisable that she return to her former employment, although she could return to teaching in some fashion. Dr. Henderson testified that claimant was diagnosed with cancer only a couple of weeks after her initial visit. Dr. Henderson stated that as a result, claimant’s cancer diagnosis overshadowed the February 2001 incident and that his work with claimant was mainly focused on her physical illness and not her post-traumatic stress symptoms. Moreover, Dr. Henderson also added that other stressors in her life, namely her marriage and Hurricane Katrina, contributed to claimant’s overall level of stress.

Claimant also saw John Muggivan, a licensed clinical social worker, from 2003 through 2006. Mr. Muggivan testified that he believed that claimant suffered from post-traumatic stress disorder directly resulting from the 2001 incident and that claimant could not return to work in a classroom despite Dr. Ortenberg’s release of claimant. Mr. Muggivan further testified that his role as a counselor eventually developed into the role of claimant’s advocate in her dealings with the Jefferson Parish School Board and admitted that he advised claimant to refuse a functional capacity evaluation. On cross-examination, Mr. Muggivan admitted that he and his wife previously were employed by the Jefferson Parish School Board. He further admitted that his wife was dismissed from employment and that both filed a lawsuit against the school board.

Because of Mr. Muggivan’s new role in claimant’s dealings with the school board, claimant discontinued her counseling with Mr. Muggivan and began seeing psychologist Dr. Fiaola, who was her treating psychologist at the time of trial.

In September 2006, claimant also saw psychiatrist Dr. Culver at the request of the school board. Tendered as an expert in psychiatry and neurology, Dr. Culver testified that he did not believe the assault was the kind of incident that could trigger post-traumatic stress disorder and completely ruled out that diagnosis after claimant’s second visit. He testified that he believed claimant suffered from a mild adjustment disorder with some anxiety and depression and believed her to be malingering.

As stated above, claimant must prove her alleged mental injury, post-traumatic stress disorder, by clear and convincing evidence. We find that the workers’ compensation did not manifestly err in finding that she did not. We find there was ample testimony, both lay and medical, directly contradicting claimant’s assertions and recitations of fact upon which the court could rely in denying claimant’s claim. Claimant saw a minimum of 15 health care professionals from 2001 through 2010. Only in 2005 was a post-traumatic stress diagnosis given by Dr. Chester and John Muggivan, a social worker. As early as March 2002, four doctors, including her own treating physician, were in agreement that claimant reached maximum medical improvement and she could return to work. Despite that finding, claimant continued to receive assault pay through October 2005, as a continued effort by the Jefferson Parish School Board to return claimant to work. Finally, after two and a half more years passed without claimant making any effort to return to work, the school board terminated her benefits. Considering the law and evidence, we do not find that the workers’ compensation judge’s factual finding, that claimant did not sustain a disabling mental injury resulting from work-related stress, was manifestly erroneous.

Assignment of Error No. 4

Last, claimant maintains that the workers’ compensation judge erroneously prohibited John Muggivan, claimant’s private licensed clinical social worker, from providing a diagnosis of mental injury at trial and from giving his opinion of psychological testing administered to claimant by psychiatrists and/or psychologists. As outlined above, La. R.S. 23:1021 provides that “no mental injury or illness resulting from work-related stress shall be compen-sable unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist.” Mr. Muggivan testified that he is a licensed clinical social worker, not a psychiatrist or psychologist. Therefore, Mr. Muggivan’s diagnosis or opinions regarding that diagnosis are irrelevant within the context of claimant’s workers’ compensation claim. Moreover, Dr. Henderson, claimant’s treating psychiatrist, testified at trial. Claimant could have easily elicited the same information from Dr. Henderson as she sought to elicit from Mr. Muggivan. Accordingly, we do not find that the workers’ compensation judge’s ruling, limiting the scope of Mr. Muggivan’s testimony, to be manifestly erroneous.

Decree

Considering the foregoing, we affirm the judgment of the Office of Workers’ Compensation in favor of the Jefferson Parish School Board.

AFFIRMED

      . Jane Patton, of the Jefferson Parish School Board, explained at trial that assault pay encompassed claimant's full salary and was paid in lieu of workers’ compensation benefits. Ms. Patton explained that claimant was paid as if she was actually working, accruing sick and annual leave. It was stipulated that claimant received $92,732 in assault pay during the period of March 15, 2001, and October 15, 2005.

      . On March 15, 2001, claimant and Ms. Eli took two students to community service day at a local Sav-A-Center, where one of the students bit claimant’s finger.

      . Claimant continued her chiropractic treatment with Jeffeiy Burns through October 2001 with the approval of the school board, having gaps in sessions when claimant went on vacation.

      .Dr. Sketchier continued to treat claimant’s physical complaints through July 2006.

      . Such accommodations included assigning claimant to higher functioning level students who are verbal and not prone to behavioral problems and the removal of any student prone to behavioral problems from the classroom.


author: LOLLEY, J.

text:
    Mark A. CIMINO, M.D., Plaintiff-Appellant, v. Amy CAPPS, Defendant-Appellee.
    Nos. 48,122-CA, 48,123-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Mark A. Cimino, M.D., Pro se.
    Amy Capps, Pro se.
    Before MOORE, LOLLEY and GARRETT, JJ.
   LOLLEY, J.

| ,Mark A. Cimino, appearing pro se, appeals a judgment of the Shreveport City Court, Parish of Caddo, State of Louisiana, a portion of which was in favor of Amy Capps, also appearing on appeal pro se. For the following reasons, we affirm the trial court’s judgment.

Facts

Cimino and Capps were involved in a romantic relationship from approximately September 2005 until February 2009, when Capps discovered that Cimino had initiated relations with another woman, identified at trial only as “Lawanda.” Capps testified at trial that she and Cimino ended their relationship primarily as a result of Lawanda. Although Cimino denied that Lawanda brought the end to his relationship with Capps, he admitted that Capps caught him being unfaithful and he felt bad about it.

Nonetheless, despite his admitted regret for having hurt Capps by his improper behavior, Cimino brought two lawsuits against her: one for the recovery of $9,836.65 incurred from charges on his Discover Card credit card by Capps (the “Discover Card suit”) and the second for $22,645.44 in connection with a 2009 Toyota Corolla (the “vehicle suit”). In the vehicle suit, Cimino claimed he purchased the vehicle for Capps’ personal use and enjoyment. Cimino also alleged that the funds expended by him on the Discover Card and the vehicle were always intended as loans, and Capps had agreed to reimburse him those amounts. The matters were consolidated at the trial court. Regarding the Discover Card suit, Capps responded that 12the parties had no verbal agreement regarding repayment of the credit card, and that the money spent on the credit card was meant as a personal gift. On the vehicle suit, she answered that the use of the vehicle was a gift intended for her personal use, and Cimino was not entitled to reimbursement.

A trial was conducted in Shreveport City Court on July 21, 2011, presided over by the Honorable Randy Collins. Before rendering judgment on the matter, Judge Collins died. Cimino filed a motion for new trial, which was denied by the Honorable Sheva Sims, who had been elected to fill Judge Collins’ seat. When the parties reconvened on July 31, 2012, Judge Sims noted that she had listened to the audio tapes of the trial, read the transcript, and reviewed all the evidence. Based on that, she determined that the primary issue was whether the charges to the Discover Card and the money expended on the vehicle were gifts or not. She ultimately determined that regarding the Discover Card, because of checks written by Capps to Cimino for repayment of charges, those charges evidently were not intended as gifts. Thus, she awarded Cimino $8,018.00 (with legal interest from the date of judicial demand until paid) on the Discover Card suit. As to the vehicle, however, the trial court noted there was no evidence indicating that it was anything other than a gift. Accordingly, Capps prevailed, Cim-ino’s claim was dismissed, and Capps was awarded attorney fees in the amount of $7,580.00. Cimino now appeals.

| ¡¡Discussion

To date, significant judicial resources have been used in deciding this matter regarding whether monies expended during a romantic relationship gone bad were intended to be gifts of the heart or monetary loans resulting from mere business transactions between the parties. At the trial court, two judges (one now deceased) considered the facts of this case before reaching a judgment, which Cimino argues was partially in error. Now on appeal, three judges are called to consider whether Capps proved that Cimino had the requisite donative intent when he allowed Capps, his former girlfriend, to drive a vehicle he picked out and purchased solely for her benefit. On that issue, we conclude the trial court did not err.

In order to show that a manual gift was made, there must exist strong and convincing proof that a donor had the intent to irrevocably divest himself of a thing and that delivery was made. Crawford v. Reagan, 34,417 (La.App.2d Cir.02/28/01), 779 So.2d 1116; Terrell v. Terrell, 26,863 (La.App.2d Cir.05/10/95), 655 So.2d 600. The donee has the burden of proving dona-tive intent, which is a factual issue. Terrell, supra at 602. Important in proving a manual donation are the donor’s outward acts, together with any admissible evidence of the relationship of the parties. Crawford, supra at 1121-22. The determination of the existence of donative intent is subject to the manifest error standard of appellate review. Terrell, supra.

Here, we conclude that the trial court made the proper determination regarding whether Cimino had the requisite donative intent to make a gift of 14 the vehicle’s use to Capps. Capps’ testimony regarding the situation surrounding the vehicle certainly indicated that Cimino’s outward acts, considering their close and longstanding relationship, showed he intended to make a donation to her. According to Capps, Cimino was concerned for her safety and wanted her to have a newer model car, especially since she was driving a lot in order to see him. Whereas Cimino claimed that Capps made payments on the car, he offered no proof other than his self-serving testimony. Considering the evidence before it, the trial court did not err in finding that Capps met her burden of proof and the use of the vehicle by Capps and amounts spent by Cimino in that vein were indeed gifts. This finding is more evident when contrasted with the trial court’s conclusion regarding the Discover Card. There, physical evidence existed showing that Capps made some attempt to repay Cimino for the Discover Card, indicating that he may have had some expectation of reimbursement and the charges were not a gift. As to the vehicle, there was no such evidence, and this assignment of error has no merit.

Additionally, Cimino argues that the trial court erred in failing to award him attorney fees in the Discover Card lawsuit, presumably because he was the prevailing party. As a general rule, attorney fees may not be awarded to a successful litigant unless specifically provided for by statute or contract. Campbell v. Melton, 2001-2578 (La.05/14/02), 817 So.2d 69, 80. Here, there was no contract between the parties providing for an award of | ¡¡attorney fees and Cimino is not entitled to such despite being the successful litigant on that claim. This assignment of error is without merit.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Mark A. Cimi-no.

AFFIRMED.

      . Notably, the trial court awarded Capps attorney fees in the vehicle lawsuit, even though there was no stated basis for such an award. Although Cimino has appealed the judgment, he failed to raise the issue of Capps’ award of attorney fees as an assignment of error. Thus, he did not preserve that issue for appeal, and it will not be considered. Accordingly, that portion of the judgment granting attorney fees to Capps is final.