Aucoin v. Exxon Mobil Corporation et al

Filing 279

ORDER AND REASONS granting 199 , 200 , 201 , 204 , 208 , 210 , 211 , 212 , 213 Motions for Partial Summary Judgment. Signed by Judge Kurt D. Engelhardt on 9/26/2012. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHERYL AUCOIN, ET AL

CIVIL ACTION

VERSUS

NO. 09-3690

EXXON MOBIL CORP., ET AL

SECTION “N” (5)
ORDER AND REASONS

Presently before the Court are several motions for partial judgment, filed by
Defendants, seeking dismissal of Plaintiffs’ survival action claims based on untimeliness. See Rec.
Docs. 199, 200, 201, 204, 208, 210, 211, 212, and 213. Specifically, all of the survival actions at
issue were instituted more than one year after the death of the decedents. On that basis, Defendants
urge that the actions are time-barred based on the notion that the one-year period applicable to
survival actions, as set forth in Louisiana Civil Code article 2315.1, is peremptive, rather than
prescriptive, such that it is not subject to interruption or suspension, particularly including contra
non valentum. On the showing made, and for essentially the reasons set forth in Barber v.
Employers Ins. Co. of Wausau, – So.3d –, 2012 WL 2454956, *4-5, 8-11 (La. App. 1 Cir. 6/28/12)
and Winningkoff v. American Cynamid, Civil Action No. 99-3077, 2000 WL 235648, *7 and n. 20
(E.D. La.3/1/00)(McNamara, J.), IT IS ORDERED that the motions are GRANTED and that
Plaintiffs’ survival action claims, asserted pursuant to Louisiana Civil Code article 2315.1, are
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 26th day of September 2012.

_________________________________
KURT D. ENGELHARDT
United States District Judge