2/27/2014 8:17:00 AM,
Jeff D. Gorman
(CN) - A Louisiana man cannot collect damages after the tragic death of his son in a bus accident because he did not prove he was the boy's father in time, a state appeals court wrote.
La'Derion Miller, a six year old, was trying to board a school bus when the driver, Harold Thibeaux, was distracted by two other children and closed the door on his arm.
Thibeaux drove away, dragging Miller 81 feet down the road before he was released. He fell under the wheels of the bus and died 40 minutes later. His mother witnessed the accident from her front yard.
Marcus Miller filed a lawsuit against Thibeaux, the Lafayette Parish School Board and American Alternative Insurance Corp.
The defendants claimed that Miller had no right of action because he hadn't proven that he was La'Derion's father. Miller filed an amended motion and judgment of paternity. The court accepted Miller's motion and ruled in his favor.
The school board appealed, stating that Miller did not file his paternity motion in time. The defendants also argued the boy's mother had full custody and that no visitation or child support orders were in place.
The Lake Charles-based Third Circuit Louisiana Court of Appeals reversed the decision, citing the state Supreme Court's 2012 decision in Udomeh v. Joseph
, which explained the requirements to establish paternity in a wrongful death lawsuit.
"In all cases, the action shall be instituted no later than one year from the day of death of the child," the Udomeh
Judge David Painter explained that Miller's first two petitions were filed within a year of La'Derion's death but only made "the bare allegation that Miller was the biological father of La'Derion."
By the time Miller filed for a judgment of paternity, the year-long statute of limitations had expired.
"Accordingly, we conclude that defendants have carried their burden of showing that Plaintiff has no right to pursue an action for the wrongful death of La'Derion Miller," Painter wrote.