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By: Connor W. Peth,
Associate, Irwin Fritchie Urquhart Moore & Daniels

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On June 3, 2024, Louisiana Governor Jeff Landry signed into law House Bill 315 from the 2024 Regular Legislative Session. House Bill 315 extends the prescriptive period for tort actions in Louisiana from one year to two years, with some exceptions, and repealed Civil Code Articles 3492 and 3493. House Bill 315 is codified as Louisiana Code Articles 3493.11 and 3493.12. The effective date of this new code article was July 1, 2024, and it applies prospectively only – applying only to actions that arise after July 1, 2024. While this change is relatively straightforward for tort actions arising after the new code article’s effective date, in the context of claims involving legacy toxic exposures, the analysis is more nuanced.

For example, in asbestos matters, any claims asserted by an individual exposed to asbestos accrue at the time of exposure, when the tort occurs. If that plaintiff passes away, his claims are transferred to his heirs at the time of death and become a survival action, while his heirs may assert their own claims through a wrongful death action. Unlike survival claims, wrongful death claims accrue at the time of death of the individual exposed to asbestos. Cole v. Celotex Corp., 599 So.2d 1058, 1066-67 (La. 1992); Taylor v. Giddens, 618 So.2d 834 (La. 1993) (holding that survival actions come into existence simultaneously with the tort committed) Austin v. Abney Mills, Inc., 2001-1598 (La. 9/4/02), 824 So.2d 1137, 1150-51; Williams v. Lockheed Martin Corporation, 900 F.3d 852, 865 (5^th Cir. 2021). That is because for the survival claim, technically held by the person exposed to asbestos and then transferred to their heirs at death, the harm occurred when the exposure occurred, often many years prior to the onset of any disease. Known as the “significant exposure theory,” survival claims are deemed to accrue when there was significant exposure to asbestos which caused the “continuous, on-going damages” in a person’s body, even though any disease may not manifest itself until later. Austin, 824 So.2d at 1153. The wrongful death claim, solely held by the heirs of the decedent, on the other hand does not accrue until the death of the individual that was exposed to asbestos. With the newly minted Article 3493.11, the prescriptive period of only the wrongful death claims will be subject to the new two-year prescriptive period, because those claims accrue in present day. Any survival claims brought in a legacy toxic exposure suit, however, will still be subject to the one-year prescriptive period that was previously in effect, because those claims accrued at the time of exposure, and prior to July 1, 2024.

For example, if an asbestos suit was newly brought by the children of a decedent who died of an alleged asbestos-related disease one year and one day after the decedent’s death, any survival claim asserted by the plaintiffs would be prescribed but any wrongful death action would not be. In the circumstance that suit is not filed within one year of a plaintiff’s diagnosis however, Article 3493.11 will have no effect on whether a defendant will be able to have any survival claim dismissed due to expiration of the prescriptive period. Any wrongful death claim filed within two years of a decedent’s death occurring after July 1, 2024, however, will now be timely under this newly passed Code Article.

Irwin Fritchie Urquhart Moore & Daniels has a robust asbestos and toxic tort litigation team with decades of combined asbestos and toxic tort litigation experience. If claims are being brought against you or your company for alleged legacy toxic tort exposure, please contact us.