NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
19-852
CINDY SHIRLEY MCCONNELL
VERSUS
STATE OF LOUISIANA AND/OR LOUISIANA DEPARTMENT OF SOCIAL SERVICES
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 223,844 HONORABLE GEORGE METOYER JR, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Elizabeth A. Pickett, John E. Conery, and Jonathan W. Perry, Judges.
AFFIRMED.
George L. Higgins, III Attorney at Law Post Office Box 3370 Pineville, LA 71361-3370 (318) 473-4250 COUNSEL FOR PLAINTIFF/APPELLANT: Cindy Shirley McConnell Jeff Landry Attorney General Leisa B. Lawson Assistant Attorney General 900 Murray Street, Suite B-100B Alexandria, LA 71301 (318) 487-5944 COUNSEL FOR DEFENDANT/APPELLEE: State of Louisiana Through the Department of Children and Family Services PICKETT, Judge.
Mother appeals the trial court’s judgment granting the defendant’s exception
of prescription and dismissing her claims for loss of consortium with her three
children arising from sexual and physical abuse they suffered while in the
defendant’s custody.
FACTS
In March 2006, Cindy McConnell and her children, Shawn Madison,1 Davey
Henderson, and Lyle Henderson, filed suit against the State of Louisiana through
the Department of Social Services (DSS). In their petition, the plaintiffs alleged
that the children were placed in foster care by DSS for the period January 15, 1992
through March 11, 1992. They further alleged that the foster parents neglected the
children and sexually and physically abused them during that time. Ms.
McConnell asserted that the abuse caused her to suffer a loss of consortium with
the children due to the abuse and sought damages for her loss.
DSS filed an exception of prescription to Ms. McConnell’s claims, asserting
that her claims had prescribed because they are subject to a one-year liberative
prescription. After a hearing, the trial court issued a judgment granting the
exception of prescription and dismissing Ms. McConnell’s claims. She appealed.
DISCUSSION
Ms. McConnell assigns one error with the trial court’s judgment which
requires us to determine whether the three-year and ten-year prescriptive periods
1 Ms. McConnell initially filed suit individually and on Shawn’s behalf who was still a minor. Upon attaining the age of eighteen, Shawn joined the suit as plaintiff. set forth in La.Civ.Code art. 3496.1 2 and La.R.S. 9:2800.9, 3 respectively, for
recovering damages caused by sexual and/or physical abuse to minors apply to all
claims or only to claims asserted by plaintiffs who were abused as minors.
The standard of review for reviewing the grant of an exception of
prescription is governed by whether evidence was introduced at the hearing on the
exception. Arton v. Tedesco, 14-1281 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125,
writ denied, 15-1065 (La. 9/11/15), 176 So.3d 1043. When, as in this case,
evidence was introduced at the hearing, we review the judgment to determine if the
trial court committed manifest error in granting the exception. Brooks v. Meaux,
18-980 (La.App. 3 Cir. 6/12/19), 275 So.3d 41, writ denied, 19-1135 (La. 10/8/19),
280 So.3d 590.
As a general rule, the party urging prescription bears the burden of proving
that the cause of action has prescribed. Bailey v. Khoury, 04-620 (La. 1/20/05),
891 So.2d 1268. If, however, prescription is apparent on the face of the pleadings,
the plaintiff must show that the action has not prescribed. Id. Prescriptive statutes
2 Louisiana Civil Code Article 3496.1 provides:
An action against a person for abuse of a minor is subject to liberative prescriptive period of three years. This prescription commences to run from the day the minor attains majority, and this prescription, for all purposes, shall be suspended until the minor reaches the age of majority. This prescriptive period shall be subject to any exception of peremption provided by law. 3 Louisiana Revised Statutes 9:2800.9 states, in pertinent part:
A. An action against a person for sexual abuse of a minor, or for physical abuse of a minor resulting in permanent impairment or permanent physical injury or scarring, is subject to a liberative prescriptive period of ten years. This prescription commences to run from the day the minor attains majority, and this prescription shall be suspended for all purposes until the minor reaches the age of majority. Abuse has the same meaning as provided in Louisiana Children’s Code Article 603. This prescriptive period shall be subject to any exception of peremption provided by law.
2 are strictly construed against prescription and in favor of the claim sought to be
proved. Barras v. O’Rourke, 19-412 (La.App. 3 Cir. 12/18/19), 287 So.3d 817.
Claims for loss of consortium prescribe in one year. La.Civ.Code art. 3492.
“This prescription commences to run from the day injury or damage is sustained.”
Id. The plaintiffs filed their petition on March 20, 2006, almost fourteen years
after the children left DSS’s custody in March 1992. Accordingly, Ms.
McConnell’s claims for loss of consortium are prescribed on the face of the
pleadings, and she has the burden of proving that her claims have not prescribed.
Ms. McConnell argues that her claims are not governed by La.Civ.Code art.
3492’s one-year prescriptive period, but by the prescriptive periods set forth in
La.Civ.Code art. 3496.1 and La.R.S. 9:2800.9. Louisiana Civil Code Article
3496.1 provides a three-year prescriptive period for actions “against a person for
abuse of a minor[,]” while La.R.S. 9:2800.9(A) provides a ten-year prescriptive
period for actions “against a person for sexual abuse of a minor, or for physical
abuse of a minor resulting in permanent impairment of permanent physical injury
or scarring[.]”
In essence, Ms. McConnell argues that these two provisions govern all
claims arising from the abuse of a minor and that her loss of consortium claim is
not prescribed because the petition was filed less than three years after her oldest
child reached the age of majority, as provided in Article 3496.1. She cites this
court’s holdings in Dugas v. Durr, 96-744 (La.App. 3 Cir. 3/6/98), 707 So.2d
1368, writ denied, 98-910 (La. 5/15/98), 719 So.2d 464, and Bowie v. Rapides
Parish School Board, 03-1369 (La.App. 3 Cir. 3/3/04), 867 So.2d 942, as support
for her claim. In both Dugas and Bowie, the issue was whether the three-year
prescriptive period in La.Civ.Code art. 3496.1 applied to claims arising from
3 sexual abuse that occurred when non-parent adults failed to exercise adequate
supervision of the abuse victim. In those cases, parents filed claims on behalf of
their minor children who had been abused. Neither case concerned a parent’s
claim for loss of consortium; accordingly, neither has any bearing on this case.
DSS argues that Ms. McConnell’s loss of consortium claim is derivative of
the children’s claims for abuse; therefore, her claim is separate and distinct from
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
19-852
CINDY SHIRLEY MCCONNELL
VERSUS
STATE OF LOUISIANA AND/OR LOUISIANA DEPARTMENT OF SOCIAL SERVICES
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 223,844 HONORABLE GEORGE METOYER JR, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Elizabeth A. Pickett, John E. Conery, and Jonathan W. Perry, Judges.
AFFIRMED.
George L. Higgins, III Attorney at Law Post Office Box 3370 Pineville, LA 71361-3370 (318) 473-4250 COUNSEL FOR PLAINTIFF/APPELLANT: Cindy Shirley McConnell Jeff Landry Attorney General Leisa B. Lawson Assistant Attorney General 900 Murray Street, Suite B-100B Alexandria, LA 71301 (318) 487-5944 COUNSEL FOR DEFENDANT/APPELLEE: State of Louisiana Through the Department of Children and Family Services PICKETT, Judge.
Mother appeals the trial court’s judgment granting the defendant’s exception
of prescription and dismissing her claims for loss of consortium with her three
children arising from sexual and physical abuse they suffered while in the
defendant’s custody.
FACTS
In March 2006, Cindy McConnell and her children, Shawn Madison,1 Davey
Henderson, and Lyle Henderson, filed suit against the State of Louisiana through
the Department of Social Services (DSS). In their petition, the plaintiffs alleged
that the children were placed in foster care by DSS for the period January 15, 1992
through March 11, 1992. They further alleged that the foster parents neglected the
children and sexually and physically abused them during that time. Ms.
McConnell asserted that the abuse caused her to suffer a loss of consortium with
the children due to the abuse and sought damages for her loss.
DSS filed an exception of prescription to Ms. McConnell’s claims, asserting
that her claims had prescribed because they are subject to a one-year liberative
prescription. After a hearing, the trial court issued a judgment granting the
exception of prescription and dismissing Ms. McConnell’s claims. She appealed.
DISCUSSION
Ms. McConnell assigns one error with the trial court’s judgment which
requires us to determine whether the three-year and ten-year prescriptive periods
1 Ms. McConnell initially filed suit individually and on Shawn’s behalf who was still a minor. Upon attaining the age of eighteen, Shawn joined the suit as plaintiff. set forth in La.Civ.Code art. 3496.1 2 and La.R.S. 9:2800.9, 3 respectively, for
recovering damages caused by sexual and/or physical abuse to minors apply to all
claims or only to claims asserted by plaintiffs who were abused as minors.
The standard of review for reviewing the grant of an exception of
prescription is governed by whether evidence was introduced at the hearing on the
exception. Arton v. Tedesco, 14-1281 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125,
writ denied, 15-1065 (La. 9/11/15), 176 So.3d 1043. When, as in this case,
evidence was introduced at the hearing, we review the judgment to determine if the
trial court committed manifest error in granting the exception. Brooks v. Meaux,
18-980 (La.App. 3 Cir. 6/12/19), 275 So.3d 41, writ denied, 19-1135 (La. 10/8/19),
280 So.3d 590.
As a general rule, the party urging prescription bears the burden of proving
that the cause of action has prescribed. Bailey v. Khoury, 04-620 (La. 1/20/05),
891 So.2d 1268. If, however, prescription is apparent on the face of the pleadings,
the plaintiff must show that the action has not prescribed. Id. Prescriptive statutes
2 Louisiana Civil Code Article 3496.1 provides:
An action against a person for abuse of a minor is subject to liberative prescriptive period of three years. This prescription commences to run from the day the minor attains majority, and this prescription, for all purposes, shall be suspended until the minor reaches the age of majority. This prescriptive period shall be subject to any exception of peremption provided by law. 3 Louisiana Revised Statutes 9:2800.9 states, in pertinent part:
A. An action against a person for sexual abuse of a minor, or for physical abuse of a minor resulting in permanent impairment or permanent physical injury or scarring, is subject to a liberative prescriptive period of ten years. This prescription commences to run from the day the minor attains majority, and this prescription shall be suspended for all purposes until the minor reaches the age of majority. Abuse has the same meaning as provided in Louisiana Children’s Code Article 603. This prescriptive period shall be subject to any exception of peremption provided by law.
2 are strictly construed against prescription and in favor of the claim sought to be
proved. Barras v. O’Rourke, 19-412 (La.App. 3 Cir. 12/18/19), 287 So.3d 817.
Claims for loss of consortium prescribe in one year. La.Civ.Code art. 3492.
“This prescription commences to run from the day injury or damage is sustained.”
Id. The plaintiffs filed their petition on March 20, 2006, almost fourteen years
after the children left DSS’s custody in March 1992. Accordingly, Ms.
McConnell’s claims for loss of consortium are prescribed on the face of the
pleadings, and she has the burden of proving that her claims have not prescribed.
Ms. McConnell argues that her claims are not governed by La.Civ.Code art.
3492’s one-year prescriptive period, but by the prescriptive periods set forth in
La.Civ.Code art. 3496.1 and La.R.S. 9:2800.9. Louisiana Civil Code Article
3496.1 provides a three-year prescriptive period for actions “against a person for
abuse of a minor[,]” while La.R.S. 9:2800.9(A) provides a ten-year prescriptive
period for actions “against a person for sexual abuse of a minor, or for physical
abuse of a minor resulting in permanent impairment of permanent physical injury
or scarring[.]”
In essence, Ms. McConnell argues that these two provisions govern all
claims arising from the abuse of a minor and that her loss of consortium claim is
not prescribed because the petition was filed less than three years after her oldest
child reached the age of majority, as provided in Article 3496.1. She cites this
court’s holdings in Dugas v. Durr, 96-744 (La.App. 3 Cir. 3/6/98), 707 So.2d
1368, writ denied, 98-910 (La. 5/15/98), 719 So.2d 464, and Bowie v. Rapides
Parish School Board, 03-1369 (La.App. 3 Cir. 3/3/04), 867 So.2d 942, as support
for her claim. In both Dugas and Bowie, the issue was whether the three-year
prescriptive period in La.Civ.Code art. 3496.1 applied to claims arising from
3 sexual abuse that occurred when non-parent adults failed to exercise adequate
supervision of the abuse victim. In those cases, parents filed claims on behalf of
their minor children who had been abused. Neither case concerned a parent’s
claim for loss of consortium; accordingly, neither has any bearing on this case.
DSS argues that Ms. McConnell’s loss of consortium claim is derivative of
the children’s claims for abuse; therefore, her claim is separate and distinct from
her children’s tort claims and prescribed one year after the children were abused.
In Landry v. Avondale Industries, Inc., 03-719 (La. 12/3/03), 864 So.2d 117, the
supreme court considered the issue of when a claim for loss of consortium accrues.
In doing so, the court discussed at length the nature of loss of consortium claims,
observing, in part, that a loss of consortium claim, like a wrongful death claim, is a
derivative claim that is “dependent on a primary tort to another person” but
“separate from any claim of the primary victim”; therefore, it is not “the assertion
of the primary victim’s cause of action itself, as in the case with a survival action.”
Landry, 864 So.2d at 126 (quoting William E. Crawford, Developments in the Law
1993-1994, [55 La. L.Rev. 657, 658 (1995)]). The court then noted that “A 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[,]” and concluded:
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.
Id.
The first circuit addressed an argument similar to Ms. McConnell’s in Peters
v. Layrisson, 05-1713 (La.App. 1 Cir. 10/18/06), 961 So.2d 1, in the context of
4 La.R.S. 9:2800.1. In Peters, the plaintiffs, parents of a deceased infant, sought to
defeat an exception of prescription regarding their wrongful death and survival
actions that arose from abuse which arguably caused their infant’s death, arguing
that the statute is an exception to La.Civ.Code art. 3492’s one year prescriptive
period. The court determined, however, that the language of La.R.S. 9:2800.1
“specifically preserves the injured child’s right, and not the parents, to bring suit
once he reaches majority.” Peters, 961 So.2d at 5. The court also observed that
La.R.S. 9:2800.1 “does not contain any language purporting to extend this right to
the surviving parents . . . of a child who is injured by abuse.” Id.
Pursuant to Landry, 864 So.2d 117, Peters, 961 So.2d 1, and La.Civ.Code
art. 3492, Ms. McConnell had one year to assert her claims for loss of consortium.
She has not asserted or presented any evidence that shows prescription of her
claims was suspended, interrupted, or renounced. See, e.g., Bouterie v. Crane, 616
So.2d 657 (La.1993). Nor has she shown that the theory of contra non valentem
prevented her from filing suit on her claims earlier. See N. G. v. A. C., 19-307
(La.App. 3 Cir. 10/2/19), 281 So.3d 727. Accordingly, we find no error with the
trial court’s granting DSS’s exception of prescription and dismissing Ms.
McConnell’s claims.
DISPOSITION
For the reasons discussed above, the trial court’s judgment is affirmed. All
costs of this appeal are assessed to Cynthia McConnell.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.