By Jack Ducote
Introduction
Louisiana is currently experiencing an insurance crisis stemming from record-high car insurance rates.[1] Legislators have struggled to pinpoint which factors are directly responsible for the increased car insurance rates in Louisiana.[2] Though Louisiana is barely above the national average for number of car accidents per 100 insured vehicles, Louisianians are nearly 100% more likely to file an automobile injury claim with their insurers than drivers in other states.[3] Additionally, the likelihood that an automobile insurance claim in Louisiana will involve a lawsuit is more than triple the national average and is one of the highest in the country.[4]
One factor that Louisiana State Representative Mike Johnson has repeatedly highlighted as contributing to high car insurance rates is that the prescriptive period applicable to tort actions was only one year.[5] Until recently, Louisiana was one of two states in the country with a one-year prescriptive period for tort actions.[6] However, in June 2024, Louisiana Governor Jeff Landry signed into law Act 423 of the 2024 Regular Session.[7] Act 423, codified in Louisiana Civil Code articles 3493.1 and 3493.2 provides, in part: “Delictual actions are subject to a liberative prescription of two years. This prescription commences to run from the day that injury or damage is sustained.”[8] Representative Johnson, the bill’s author, stated that “extending the one-year prescription to a longer period of time will result in less lawsuits being filed.”[9] The Act became effective on July 1, 2024, and only applies prospectively to tort actions arising after that date.[10]
Representative Johnson emphasized that it was “as clear as could be” that Louisiana’s one-year prescriptive period for tort actions made it an outlier nationwide and passing the Act would align Louisiana with the norm.[11] Still, Louisiana remains an outlier in many areas of the law, including the prescriptive period applicable to wrongful death and survival actions.[12] Louisiana remains only one of three states with a one-year prescriptive period for wrongful death actions.[13] If extending the prescriptive period applicable to tort actions aligns Louisiana with the norm, then doing the same for wrongful death and survival actions would provide the same result. To accomplish this, the legislature should amend Civil Code articles 2315.1(A) and 2315.2(B) to also extend the prescriptive period for wrongful death and survival actions to two years.[14]
I. Prescription Periods
A statute of limitation defines the “period of time following the accrual of a cause of action during which an aggrieved party may file a lawsuit seeking money damages for [injuries].”[15] A statute of limitation bars a claim if it is not judicially pursued within a certain time.[16] Plaintiffs “must file suit in a court of competent jurisdiction and venue, and pursue that suit . . . to timely conclusion.”[17] The statutes of limitation for personal injury claims vary from state to state.[18] Nationwide, the most common length of tort statute of limitation is two years, which is the case in 26 states.[19] Prescription is the civilian counterpart to a statute of limitation in the common law. In civil law jurisdictions, like Louisiana, liberative prescription is “a mode of barring of actions as a result of inaction for a period of time.”[20] The purpose of prescription statutes and statutes of limitation is “to protect defendants against stale claims and the lack of notification of a formal claim within the prescriptive period.”[21]
A. Delictual Actions
All tort liability in Louisiana arises exclusively from the delictual principles of Louisiana Civil Code articles governing offenses and quasi offenses, the most important of which, article 2315, provides: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”[22] Thus, in Louisiana, a delictual action is a tort action or “an action seeking damages for injury caused by the act of another.”[23] The first prescriptive period for tort claims came from article 3501 of the Louisiana Civil Code of 1825, which provided that “actions . . . resulting from offences or quasi offences . . . are prescribed by one year.”[24] Over time, the legislature created longer prescription periods for certain torts.[25] The one-year liberative prescription period remained the law until July 2024, when Act 423 extended the liberative prescription period for delictual actions to two years.[26]
B. Wrongful Death and Survival Actions
The general rule in Louisiana and the common law was that tort actions died with the victim because they were considered personal to the parties.[27] However, Louisiana abandoned the common law rule when it adopted a survival action in 1855[28] and a wrongful death action in 1884.[29] Because the injured person is deceased, his or her designated beneficiaries may bring a survival action to recover damages suffered by the deceased person prior to his or her death that he or she could have recovered if he or she had lived.[30] A wrongful death action provides a remedy in favor of designated beneficiaries for the damages they have personally suffered as a result of the victim’s death.[31] Under current Louisiana law, both wrongful death and survival actions must be brought within a one-year period from the date of the decedent’s death.[32]
While it may seem that the prescription periods for wrongful death and survival actions are independent from the general prescription period provided for delictual actions, the Louisiana Supreme Court has repeatedly reasoned that they are linked.[33] In Stephenson v. New Orleans Railway & Light Co., the Louisiana Supreme Court concluded that the wrongful death action is one resulting from an offense or quasi offense and is subject to the ordinary prescription rules for delictual actions.[34] Further, in Taylor v. Giddens, the Louisiana Supreme Court found that “the prescriptive period for wrongful death actions . . is controlled by the one year liberative period applicable to delictual actions.”[35]
II. The Problem—Application of Current Law
Suppose John is in a car accident on May 7, 2024, before the legislature enacted Act 423.[36] Because of the car accident, John suffered several injuries that required hospitalization. Assuming John is not at fault, John has a tort claim against the driver of the other car until May 7, 2025, under the old law.[37] Now suppose that John, who is married to Jane, dies as a result of his injuries on October 15, 2024. Under Louisiana law, Jane now has one year from the date of John’s death to bring the wrongful death and survival actions—until October 15, 2025.[38]
But what would happen if John’s car accident took place on July 7, 2024? Under the new Louisiana law, John would now have until July 7, 2026, to bring his tort claim.[39] Does this mean that when John dies on October 15, 2024, Jane has two years to bring the wrongful death and survival actions? No, Jane still only has one year from the date of John’s death to bring the claims.[40] This confusion arises from Act 423’s failure to extend the prescription periods for wrongful death and survival actions.[41] This confusion could potentially result in courts dismissing meritorious claims because claimants did not file them on time.[42] Thus, the legislature can and should address this issue.
III. Possible Solutions
Before Act 423 became effective, Louisiana was one of two states in the country with a one‑year prescription period for tort actions.[43] By raising the prescription period to two years, Act 423 “simply moves Louisiana into the mainstream.”[44] It is now time to do the same with wrongful death and survival actions. Louisiana is still only one of three states that has a one-year prescriptive period for wrongful death actions.[45] The Louisiana legislature should consider three options: (1) increasing the period to bring wrongful death and survival actions from one year to two years; (2) amending the period to be one year from the death of the deceased or two years from the date of the injury, whichever is longer; or (3) a mix of both.
A. Two-Year Prescription Period
The easiest solution for the legislature is to increase the period to bring wrongful death and survival actions from one year to two years. This would be easiest on attorneys and judges because it would likely avoid any potential confusion that may result from the next two possible solutions. It would also preserve the link between prescription periods for general delictual actions, wrongful death actions, and survival actions as discussed in Stephenson and Taylor.[46] Several states such as Connecticut, Georgia, and Hawaii, have statutes similar to this.[47]
B. One Year from the Death of the Deceased or Two Years from the Date of Injury—Whichever Is Later
Another option for the legislature is to amend the prescription periods in article 2315.1(A) and article 2315.2(B) to allow the decedent’s beneficiaries to bring the claims one year from the date of death or two years from the date of the injury or damage, whichever is later. Using the hypothetical from the introduction, if John was injured on July 7, 2024, and died on October 15, 2024, Jane would have until July 7, 2026, to file the wrongful death and survival actions. While no states follow this method for both wrongful death and survival actions, many states follow this method for survival actions.
C. Mix of Both
The last option for the legislature to consider is a mix of both aforementioned options. With regard to wrongful death actions, the legislature should increase the prescription period provided in article 2315.2(B) from one year to two years. For survival actions, the legislature should amend the prescription period provided in article 2315.1(A) to allow the decedent’s beneficiaries to bring the claims one year from the date of death or two years from the date of the injury or damage, whichever is later. Using the hypothetical again, if John was injured on July 7, 2024, and died on October 15, 2024, Jane would have until July 7, 2026, to file the survival action, and she would have until October 15, 2026, to file the wrongful death action. Several states follow this approach, including Florida and Illinois.[48]
Conclusion
The passage of Act 423 was a significant step toward aligning Louisiana’s prescription period for delictual actions with the national norm. However, the state remains an outlier regarding the prescription periods for wrongful death and survival actions. The continued one-year limitation on these claims creates inconsistencies in the law and potential confusion for litigants. To fully integrate Louisiana’s prescription framework with broader national trends and ensure greater fairness for plaintiffs, the legislature should amend Louisiana Civil Code articles 2315.1(A) and 2315.2(B). Adopting one of the aforementioned solutions would provide clarity and consistency while preserving judicial efficiency. By addressing this issue, Louisiana can take another critical step toward a more equitable and predictable legal system.
[1] Wesley Muller, Lawmakers Still Waiting to Hear Why Auto Insurance Is So Expensive in Louisiana, La. Illuminator (Sept. 10, 2024), https://lailluminator.com/2024/09/10/lawmakers-still-waiting-to-hear-why-auto-insurance-is-so-expensive-in-louisiana/ [https://perma.cc/4BH3-XYMQ].
[2] The Fight for Common Sense in Our Insurance Crisis, The Off. of the Governor (Aug. 1, 2024), https://gov.louisiana.gov/news/4594 [https://perma.cc/E7TT-S7E3].
[3] Ins. Rsch. Council, Auto Insurance Affordability in Louisiana 4 (2024), https://www.insurance-research.org/sites/default/files/IRC%20Louisiana%20Auto%20Insurance%20Affordability%20Brief%202024.pdf [https://perma.cc/4ESJ-C6Q9]. The injury claim relative frequency measures the number of bodily injury claims per 100 property damage claims. Id. at 6 n.2. In Louisiana, the injury claim relative frequency was 49.15, while the national average was 26.30. Id. at 4.
[4] Id. at 4. Claim litigation reflects the percentage of personal auto claims with litigation. Id. at 6 n.2. It was measured by the ratio of suits opened to claims closed without payment multiplied by the ratio of claims closed without payment to the total claims closed. Id. Louisiana’s rate of litigation was 2.3, while the national average was 0.6. Id. at 4.
[5] To Provide Prescriptive Period for Tort Actions: Hearing on H.B. 315 Before the H. Comm. on Civ. L. & Proc., 2024 Leg., Reg. Sess., at 6:05 (La. Mar. 20, 2024) (statement of Rep. Mike Johnson) https://house.louisiana.gov/H_Video/VideoArchivePlayer?v=house/2024/mar/0320_24_CL; La. Civ. Code art. 3492 (2023).
[6] To Provide Prescriptive Period for Tort Actions: Hearing on H.B. 315 Before the H. Comm. on Civ. L. & Proc., supra note 5, at 3:20 (statement of Rep. Mike Johnson).
[7] Act No. 423, 2024 La. Acts (codified at La. Civ. Code arts. 3493.1–3493.2).
[8] La. Civ. Code art. 3493.1 (2024).
[9] To Provide Prescriptive Period for Tort Actions: Hearing on H.B. 315 Before the H. Comm. on Civ. L. & Proc., supra note 5, at 6:05 (statement of Rep. Mike Johnson).
[10] Act No. 423, 2024 La. Acts.
[11] See To Provide Prescriptive Period for Tort Actions: Hearing on H.B. 315 Before the H. Comm. on Civ. L. & Proc., supra note 5, at 3:05.
[12] See Jonathan Rosenfeld, Wrongful Death Statute of Limitations by State, Rosenfeld Inj. Laws., (Feb. 4, 2025), https://www.rosenfeldinjurylaw.com/news/wrongful-death-statute-of-limitations-by-state/ [https://perma.cc/P5UC-MYGH] (compiling information on various statutes of limitation).
[13] Id.
[14] See discussion infra Section III.A–C.
[15] 3 Jerome H. Nates, Clark D. Kimball, Diana T. Axelrod & Richard P. Goldstein, Damages in Tort Actions § 28.04 (2025).
[16] Frank L. Maraist, Thomas C. Galligan, John M. Church & William R. Corbett, Louisiana Tort Law § 10.02 (2024).
[17] Id.
[18] Ty McDuffey, Time Limits to Bring a Case: The Statute of Limitations, FindLaw, https://injury.findlaw.com/accident-injury-law/time-limits-to-bring-a-case-the-statute-of-limitations.html [https://perma.cc/8QSS-8EKV].
[19] Civil Statutes of Limitations, NOLO (Jan. 3, 2025), https://www.nolo.com/legal-encyclopedia/statute-of-limitations-state-laws-chart-29941.html [https://perma.cc/Q569-633G].
[20] La. Civ. Code art. 3447 (2024).
[21] Porche v. Sutherlands Lumber & Home Ctr., Inc., 265 So. 3d 56, 58 (La. Ct. App. 2019) (quoting Brown v. Our Lady of the Lake Reg’l Med. Ctr., 803 So. 2d 1135, 1137 (La. Ct. App. 2019)).
[22] La. Civ. Code art. 2315.
[23] Cossé v. Orihuela, 109 So. 3d 950, 953 (La. Ct. App. 2013) (quoting Langlois v. Allied Chem. Corp., 249 So. 2d 133, 136 (La. 1971)).
[24] La. Civ. Code art. 3501 (1825).
[25] See, e.g., La. Civ. Code art. 3493.3 (providing a liberative prescription period of two years for “[d]elictual actions which arise due to damages sustained as a result of an act defined as a crime of violence under Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950, except as provided in Article 3496.2”); see also La. Rev. Stat. § 49:112 (creating a 10-year limitation on suits against the state).
[26] Act No. 423, 2024 La. Acts (codified at La. Civ. Code art. 3493.1).
[27] William E. Crawford, Tort Law § 5:1 at 114, in 12 Louisiana Civil Law Treatise (2d ed.).
[28] Act No. 223, 1855 La. Acts 270.
[29] Act No. 71, 1884 La. Acts 94.
[30] See La. Civ. Code art. 2315.1.
[31] Id. art. 2315.2.
[32] Id. arts. 2315.1(A), 2315.2(B).
[33] See Stephenson v. New Orleans Ry. & Light Co., 115 So. 412, 413 (La. 1927); see also Taylor v. Giddens, 618 So. 2d 834, 841 (La. 1993).
[34] See Stephenson,115 So. at 413.
[35] Taylor, 618 So. 2d at 841 (citing La. Civ. Code art. 3492).
[36] Act No. 423, 2024 La. Acts (codified at La. Civ. Code art. 3493.1).
[37] See La. Civ. Code arts. 3492, 2315 (2023).
[38] See id. arts. 2315.1(A), 2315.2(B) (2024).
[39] See id. art. 3493.1.
[40] Id. arts. 2315.1, 2315.2.
[41] See Act No. 423, 2024 La. Acts (codified at La. Civ. Code art. 3493.1).
[42] Nates et al., supra note 15, at § 28.04 (“One of the most frequently encountered bases for legal malpractice actions is the attorney’s failure to initiate an action before the expiration of the statute of limitations. A common error is to assume that the jurisdiction’s personal injury limitation period applies in death actions.”).
[43] To Provide Prescriptive Period for Tort Actions: Hearing on H.B. 315 Before the H. Comm. on Civil Law and Procedure, supra note 5, at 3:20 (statement of Rep. Mike Johnson).
[44] Id. at 4:43 (statement of Rep. Mike Johnson).
[45] Rosenfeld, supra note 12.
[46] See Stephenson v. New Orleans Ry. & Light Co., 115 So. 412, 413 (La. 1927); see also Taylor v. Giddens, 618 So. 2d 834, 841 (La. 1993).
[47] See, e.g., Conn. Gen. Stat. § 52-555(a) (2024); Ga. Code Ann. § 9-3-33 (2024); Haw. Rev. Stat. § 663-3(b) (2024).
[48] For wrongful death actions, see Fla. Stat. § 95.11(4)(e) (2024); 740 Ill. Comp. Stat. 180/2(d) (2024). For survival actions, see Fla. Stat. § 733.104(1) (2024); 735 Ill. Comp. Stat. 5/13-209(a)(1) (2024).