Rismiller v. Gemini Ins. Co.

Supreme Court of Louisiana

Rismiller v. Gemini Ins. Co.

263 So. 3d 1145

CourtSupreme Court of Louisiana

DecidedFebruary 18, 2019

DocketNO. 2018-CC-2089

StatusPublished

This text of 263 So. 3d 1145 (Rismiller v. Gemini Ins. Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rismiller v. Gemini Ins. Co., 263 So. 3d 1145 (La. 2019).

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Opinion

PER CURIAM

Granted. In their application to this court, relators ask us to pass on the constitutionality of La. Civ. Code arts. 2315.1 and 2315.2 insofar as the court of appeal found those articles do not provide a right of action for adopted children to assert wrongful death and survival actions following the death of a biological parent. Because relators did not raise this claim in the district court, it is not properly before this court. See Vallo v. Gayle Oil Company, Inc., 94-1238 (La. 11/30/94), 646 So.2d 859, 864 ("[t]he long-standing jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts ...").

However, without expressing any opinion on the merits of relators' constitutional arguments, we find it appropriate to remand this case to the district court to allow relators to amend their petition in an attempt to remove the objection presented *1146by the exception of no right of action. See La. Code Civ. P. Art. 934 ; Reeder v. North , 97-0239 (La. 10/21/97), 701 So.2d 1291, 1299.

Accordingly, the writ is granted for the sole purpose of remanding the case to the district court to allow relators to amend their petition in an attempt to state a right of action. In all other respects, the writ is denied.

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PER CURIAM

Granted. In their application to this court, relators ask us to pass on the constitutionality of La. Civ. Code arts. 2315.1 and 2315.2 insofar as the court of appeal found those articles do not provide a right of action for adopted children to assert wrongful death and survival actions following the death of a biological parent. Because relators did not raise this claim in the district court, it is not properly before this court. See Vallo v. Gayle Oil Company, Inc., 94-1238 (La. 11/30/94), 646 So.2d 859, 864 ("[t]he long-standing jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts ...").

However, without expressing any opinion on the merits of relators' constitutional arguments, we find it appropriate to remand this case to the district court to allow relators to amend their petition in an attempt to remove the objection presented *1146by the exception of no right of action. See La. Code Civ. P. Art. 934 ; Reeder v. North , 97-0239 (La. 10/21/97), 701 So.2d 1291, 1299.

Accordingly, the writ is granted for the sole purpose of remanding the case to the district court to allow relators to amend their petition in an attempt to state a right of action. In all other respects, the writ is denied.

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Bluebook (online)

263 So. 3d 1145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rismiller-v-gemini-ins-co-la-2019.

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