![handle is hein.journals/tulr89 and id is 263 raw text is:
COMMENTS
Has Prescription Preempted Peremption?:
A Plea To Bury the Ghosts of
Survival Actions*
Jeffirey J. Gelpit
Over the last decade, litigation involving personal injuies and propery contamination
resulting from exposuire to naturally occurring radioactive materials (NORM) has been on the
rise. Juies have awarded millions of dollars in compensatory damages for NORM contami-
nation, and punitive damages have reached the billions. In many instances, the person inuird
by the exposure dies before fling suit; on the other hand the defendants, typically oil companies
or corporations, can live for centuries. For ths reason, the victim relatives utilize wrngful
death and survival actions to hold the tortfeasors liable for damages. The surial action
permits recovery for the injuries suffered by the victim up to the time of death. UnderLouisiana
Civil Code article 2315.1, this ight to recover damages for the injures suffered by the victin
survives for a period of one year from the death of the deceased Recently, the Louisiana
Supreme Court held that the one-year period for survival actions is aperiodofprescrition. As
a result, a victm s relatives may bring a survival action long after the action s one-yearperiod of
survival. This Comment &scusses the historiy of time lirmitions in Louisiana and explains
the test for identifying a peremptive period It concludes with a deternination that the period
provided in artcle 2315.1 is one ofperemption.
* The title of this Comment is meant to highlight the long-standing confusion
among judges, jurists, and lawyers alike regarding the terms prescription;' preemption,
and peremption. See, e.g., Jackson v. Ace Am. Ins. Co., Nos. 09-1199, 09-1200, 2010 WL
451062, at *2 n.1 (WD. La. Feb. 5, 2010) (The court presumes that the defendants
erroneously used 'preemption' as opposed to 'peremption,' which is the proper term....);
Bone v. Sixth Ward & Crowley Drainage Dist., 55 So. 478, 479 (La. 1911) (Statutes of
prescription simply debar the remedy. Statutes of pre-emption destroy the cause itself.); State
Bd. of Ethics v. Ourso, 2001-1417, p. 4 (La. App. 1 Cir. 6/21/02); 838 So. 2d 792, 794 ([A]
statute is preemptive [sic] when it both creates the right of action and stipulates the time
within which that right may be executed.); Toomey v. Toomey, 1997 Mass. App. Div. 181
(Dist. Ct. 1997) (ERISA's express peremption [sic] clause states that the act shall supercede
any and all state laws ....'). Although preemption and peremption are similarly spelled,
these two terms have very different meanings. Preemption may refer to a contractual right to
buy before others or the principle in constitutional law that a federal law can supersede an
inconsistent state law, BLACK'S LAW DICTIONARY 1368-69 (10th ed. 2014), whereas
peremption is a type of limitation period that extinguishes a right after the passage of time.
LA. CIV. CODE ANN. art. 3458 (2014).
t © 2014 Jeffrey J. Gelpi. J.D. candidate 2015, Tulane University School of Law;
B.A. 2012, Louisiana State University. I owe special thanks to Vice Dean Ronald J. Scalise,
Jr., for his invaluable guidance as my professor, advisor, and mentor. Thanks also to
Professors A.N. Yiannopoulos and Sally Brown Richardson for their expertise and feedback,
Chlo6 M. Chetta for her thoughtful comments, and the members and staff of the Tulane Law
Review for their editing assistance. As always, I am deeply indebted to my loving parents;
their unwavering support is my greatest motivation.
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