Legacy of "Lawsuit" Ineffective When Testator Survived by Children

Recent law-school grads take note: this is the kind of case that can show up on the bar exam.

Vera Rainey filed a personal-injury suit against Entergy. Bench trial on the merits was held in December 2000. In February 2001, Rainey made a last will and testament, naming Craig Brigalia as her executor and purporting to bequeath to him her "lawsuit" against Entergy. On March 14, 2001, the trial court rendered judgment in Rainey's favor against Entergy. On May 9, 2001, Entergy took a suspensive appeal. On May 25, 2001, Rainey died, survived by two adult children. Who is the proper appellee -- Brigalia or the surviving children?

In a decision rendered yesterday, the First Circuit held that the children are the proper appellees, not Brigalia. While C.C.P. Art. 426 and Art. 685 appear to vest the right of action in a legatee or an executor, both provisions are qualified by the phrase "except as otherwise provided by law." And in this case, the First Circuit held that Civil Code Art. 2315.1 is one such exception. The bequest of the "lawsuit" in Brigalia's favor was ineffective, the court held, because "a person does not have the capacity to make or receive a donation mortis causa of a tort cause and right of action as long as a beneficiary listed in Article 2315.1 is alive." Rainey v. Entergy Gulf States, Inc., No. 2001-CA-2414, slip op. (La. App. 1 Cir. June 25, 2004).

Posted by RPW at June 26, 2004 02:26 PM