RISMILLER TUTRIX FOR GOINS v. GEMINI INSURANCE COMPANY (2019)

ON WRIT OF CERTIORARI, TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF CONCORDIA

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 by 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.

PER CURIAM