Louisiana Statute of Limitations Bars Wrongful Death Claim Filed in Delaware Superior Court of Delaware, March 26, 2018

DELAWARE — The plaintiff, Sandra Kivell, filed a wrongful death and survival claim alleging her husband’s death was caused by mesothelioma. He passed on September 5, 2015, and the new claims were filed on September 30, 2016. The plaintiff’s decedent had originally filed a complaint before his death. Georgia-Pacific filed a motion for judgment on the pleadings, arguing that the claims were filed beyond Louisiana’s one year statute of limitations for wrongful death and survival claims. The plaintiff did not contend that the Louisiana statute of limitations did not apply. Rather, she countered that the claims related back to the original complaint, thereby circumventing the statute of limitations.

The court applied Delaware law because the issue was procedural. The court analyzed whether the new claims were amended or supplemental pleadings. The former only applied to matters that have taken place prior to the date of the pleading to be amended. Supplemental pleadings applied to transactions setting forth transactions or occurrences which have happened since the date of the pleading to be supplemented. Therefore, the court held that wrongful death and survival claims were not amendments to the original complaint, as they necessarily did not relate to matters that took place prior to the date of the pleading being amended. The court found the wrongful death and survival claims time barred and granted the motion for judgment on the pleadings.

Read the full decision here.

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