Biological Father Denied Claim in Son’s Louisiana Wrongful Death LawSuit

old-country-red-barn-1633768-1024x683When someone dies because of another person’s negligence certain individuals can bring a wrongful death lawsuit against the negligent party. Normally, those who may recover under a claim for wrongful death and survival are limited to a certain class of persons. In such cases, the plaintiff can be the surviving spouse, a surviving child, the decedent’s parents, the decedent’s siblings, or the decedent’s grandparents. La. C.C. arts. 2315.1 (2016); La. C.C. arts. 2315.2 (2016). But what happens when there are multiple people who are entitled to bring the wrongful death suit? Can a biological father recover in his son’s wrongful death and survival suit when the son is presumed to be the child of another man? Recently, the Fourth Circuit Court of Appeal for the State of Louisiana addressed these issues when it decided a case involving a fatal car crash.

On March 8, 2013, Juan Joseph Hughes (“Mr. Hughes”) hit a parked car which caused his car to burst into flames. As a result of this accident, Mr. Hughes lost his life. Mr. Hughes’s parents, Joseph and Cherryn Burkette, filed a wrongful death claim, naming General Motor, LLC. and Banner Chevrolet as defendants. The Burkettes claimed that their son died as a result of the defendants’ negligence.

In response, the defendants argued that Mr. Burkette could not be part of the wrongful death suit. The defendants noted that the Burkettes and decedent did not share a last name. Ms. Burkette asserted that Mr. Burkette was Mr. Hughes’ biological father and that she was his biological mother. Ms. Burkette explained that she was in a relationship with Mr. Burkette while she was married to Jerome Hughes and that her son’s last name only reflected Ms. Burkette’s marital status at the time of Mr. Hughes’s birth.

The trial court found that the Burkettes failed to establish filiation to Mr. Hughes. Filiation is a legal relationship between a child and his or her parent and is established by proof of maternity, paternity, or adoption. La. C.C. art. 179 (2016). In Louisiana, the husband of the mother is presumed to be the father of a child born during the marriage. If the child is born within 300 days of a divorce, then the mother’s ex-husband is presumed to be the father. La. C.C. art. 185 (2016). Additionally, under Louisiana law, a man can seek to establish paternity of a child who is presumed to be the child of another man by filing an action within one year of the child’s birth. La. C.C. art. 198 (2016).

The trial court held that because the Burkettes failed to establish Mr. Burkette’s filiation within the applicable time frame (one year) that both Mr. and Ms. Burkette could not bring the wrongful death action.

The Burkettes disagreed with the trial court’s decision and appealed to the Fourth Circuit Court of Appeal for the State of Louisiana. On appeal, the Burkettes argued that because their original court pleading said “son” that they instituted the filiation in a timely matter. The Fourth Circuit disagreed. The court noted that Mr. Burkette never filed an avowal action (action by a father claiming that a child is his biological son). The Fourth Circuit additionally noted that there was no proof that the decedent’s legal relationship with Mr. Hughes’s alleged father was dissolved. Mr. Hughes was born in 1985. Mr. Burkette had one-year from 1985 to establish paternity. Mr. Burkette failed to do so. Therefore, Mr. Burkette was time-barred to establish filiation and could not bring the wrongful death suit. While the Fourth Circuit did hold that Mr. Burkette could not bring the wrongful death suit, it did reverse the trial court’s ruling barring Ms. Burkette from bringing a wrongful death suit. Because Ms. Burkette had filiation with Mr. Hughes, she was entitled under Louisiana law to bring the wrongful death suit.

Mr. Burkette was not considered a proper party to file the wrongful death suit because he could not legally establish his relationship to Mr. Hughes. When faced with a wrongful death and survival suit involving complex familial situations, an individual requires the services of a good lawyer to help him or her determine whether he or she even has the right to file a lawsuit on behalf of the deceased.


Additional Berniard Law Firm Articles on Louisiana Wrongful Death Suits: Not Over Till The Judge Says It’s Over: Appeal of One Claim Barred in Multi-Claim Case Out of Metairie

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