IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30150

LEVI COLEMAN, SR., Deceased; BARBARA COLEMAN; SHIRLEY 

COLEMAN MORELAND; LEVI COLEMAN, JR.; STANLEY NEWTON; ET 

AL, 

 Plaintiffs - Appellants

v.

OFS, INCORPORATED, individually and as successor in interest to Oil Field 

Sales and Service, Incorporated; ATLANTIC RICHFIELD COMPANY, 

individually and as successor in interest to Arco Oil and Gas Corporation, 

also known as Arco Oil ; Gas Company; BP PRODUCTS NORTH AMERICA, 

INCORPORATED, individually and as successor in interest to Amoco Oil 

Company and American Oil Company; CHEVRON USA, INCORPORATED, 

inidividually and as the parent company and successor to Gulf Oil 

Corporation and Gulf Oil Exploration ; Production Company, and Texaco, 

Incorporated, the successor to Texas Company; EXXON MOBIL 

CORPORATION, individually and as successor in interest to Exxon 

Corporation and Mobil Exploration ; Producing Southeast, Incorporated; 

SHELL OFFSHORE, INCORPORATED; SHELL OIL COMPANY; SWEPI, 

L.P., individually and as successor in interest to Shell Western E;P, 

Incorporated; UNION OIL COMPANY OF CALIFORNIA; SUPERIOR OIL 

COMPANY; PACKARD PIPE TERMINALS, L.L.C., formerly named as 

Packard Pipe Terminals, Incorporated, 

 Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges.

United States Court of Appeals

Fifth Circuit

FILED

October 30, 2014

Lyle W. Cayce

Clerk

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No. 13-30150

JAMES E. GRAVES, JR:

In a prior opinion and order, we certified to the Supreme Court of 

Louisiana the question of whether the one-year time period governing a 

survival action in Article 2315.1 of the Louisiana Civil Code is prescriptive or 

peremptive. See Coleman v. OFS, Inc., 554 F. App’x 251 (5th Cir. Dec. 18, 

2013). The Supreme Court of Louisiana denied certification, because in the 

interim, that court issued its opinion in Watkins v. Exxon Mobil Corp., 2013-

1545 (La. 5/7/14), 145 So. 3d 237, reh’g denied (July 1, 2014), holding that the 

time period in Article 2315.1, as amended in 1986, is prescriptive. Applying 

this clear precedent, we reverse the district court’s dismissal of the Plaintiffs’ 

survival actions. 

I. Factual and Procedural Background

We restate the factual and procedural background, drawn from our 

previous certification opinion. Plaintiffs-Appellants in this class action 

litigation are pipe yard workers and surviving beneficiaries of pipe yard 

workers. Plaintiffs’ tort claims arise out of the pipe yard workers’ occupational 

exposure to radioactive oil field waste materials including Technologically 

Enhanced Naturally Occurring Radioactive Materials (“TENORM”) and other 

hazardous substances. Plaintiffs allege that, unknown to the workers, pipe 

cleaning, pipe maintenance, and yard maintenance resulted in their exposure 

to TENORM, which caused or contributed to the development of various 

diseases, health problems, and deaths. Defendants-Appellees are multiple oil 

companies who contracted with employers of the workers. Plaintiffs allege that 

Defendants were aware of the dangers of TENORM and were aware of the 

workers’ exposure, but failed to warn the workers or the public of the 

environmental and health dangers. 

The Coleman family originally filed survival claims and wrongful death 

claims in state court based on Levi Coleman’s TENORM exposure. The action 

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was amended multiple times to add additional plaintiffs. Defendants 

eventually removed the action to the Eastern District of Louisiana under the 

Class Action Fairness Act, 28 U.S.C. §§ 1332(d), 1453. The district court denied 

a motion to remand. Multiple defendants filed motions to dismiss certain of 

the survival claims pursuant to Federal Rule of Civil Procedure 12(b)(6), 

asserting that all survival claims filed more than one year after the decedent’s 

death were untimely. Plaintiffs argued that the applicable one-year 

limitations period for survival claims, see La. Civ. Code art. 2315.1, did not 

begin to run until Plaintiffs discovered the connection between the decedents’ 

deaths and the toxic tort exposure. Plaintiffs alternatively argued that the 

one-year limitations period was preempted by the Comprehensive 

Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 

U.S.C. § 9658. 

After briefing and oral argument on the limitations issues, the district 

court dismissed certain of the survival actions as untimely. The district court 

determined that both before and after a 1986 amendment to the statute, the 

Article 2315.1 limitations period for survival claims is peremptive, rather than 

prescriptive, and is not subject to interruption or suspension for any reason. 

The district court dismissed all survival claims filed more than one year after 

the decedent’s death. The district court designated and certified its order of 

partial dismissal as an appealable final judgment under Federal Rule of Civil 

Procedure 54(b). Plaintiffs filed a motion for reconsideration arguing that the 

district court did not address their argument regarding CERCLA preemption. 

The district court denied the motion for reconsideration, holding that according 

to circuit precedent, CERCLA does not preempt peremptive periods. Plaintiffs 

timely appealed. 

We certified to the Supreme Court of Louisiana the question of whether 

the one-year time period governing a survival action in Article 2315.1 is 

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prescriptive or peremptive. See Coleman, 554 F. App’x at 252. On September 

12, 2014, the Supreme Court of Louisiana denied certification, stating that 

“The issue presented in the certified question has been resolved in Watkins v. 

Exxon Mobil Corporation,” 2013-1545 (La. 5/7/14), 145 So. 3d 237, reh’g denied

(July 1, 2014). Coleman v. OFS, Inc., 2013-2962 (La. 9/12/14), 2014 WL 

4636432.

II. Discussion

We review the district court’s dismissal under Rule 12(b)(6) de novo. See, 

e.g., Hamilton v. United Healthcare of Louisiana, Inc., 310 F.3d 385, 388 (5th 

Cir. 2002). We also review the district court’s determination of state law de 

novo. Am. Waste & Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 

1384, 1386 (5th Cir. 1991). 

Louisiana Civil Code Article 2315.1 governs the time period in which 

survival actions must be brought. It provides:

If a person who has been injured by an offense or quasi offense 

dies, the right to recover all damages for injury to that person, his 

property or otherwise, caused by the offense or quasi offense, shall 

survive for a period of one year from the death of the deceased in 

favor of [specified beneficiaries].

La. Civ. Code art. 2315.1(A). The district court dismissed the survival actions 

at issue based on its determination that the one-year time period for instituting 

a survival action in Art. 2315.1 is peremptive, and not prescriptive. In 

Louisiana, “prescription merely prevents the enforcement of a right by action; 

in contrast, peremption destroys the right itself.” La. Civ. Code art. 3458, 1982 

rev. cmt. (b) (citing Pounds v. Schori, 377 So. 2d 1195 (La. 1979); Flowers, Inc. 

v. Rausch, 364 So. 2d 928 (La. 1978)). “When prescription applies, the 

prescriptive period does not begin to run until the plaintiff has actual or 

constructive knowledge of the facts which would entitle him to bring suit.” Ayo 

v. Johns-Manville Sales Corp., 771 F.2d 902, 907 (5th Cir. 1985) (citations 

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omitted); see Jenkins v. Starns, 11-1170 (La.1/24/12), 85 So.3d 612, 623 

(describing the Louisiana doctrine of “contra non valentem agere non currit 

praescriptio, which means prescription does not run against a person who could 

not bring suit”). However, a peremptive period is not subject to tolling or 

interruption and runs regardless of whether a plaintiff had knowledge of his 

cause of action. See Ayo, 771 F.2d at 907; La. Civ. Code art. 3461 (“Peremption 

may not be renounced, interrupted or suspended.”). 

The interpretation of Article 2315.1 is, of course, a question of state law. 

To determine Louisiana law, we first look to the final decisions of the Supreme 

Court of Louisiana. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 

(5th Cir. 2007) (citing Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 

352 F.3d 254, 260 (5th Cir. 2003)). In Watkins v. Exxon Mobil Corp., the 

Supreme Court of Louisiana clearly held that the time period in Article 2315.1 

is prescriptive and not peremptive. 145 So. 3d at 243-44. In Watkins, the court 

pointed to a new provision added in 1986 amendments to Article 2315.1 which

provides that “[t]he right of action granted under this Article is heritable, but 

the inheritance of it neither interrupts nor prolongs the prescriptive period 

defined in this Article.” La. Civ. Code art. 2315.1(C); see Watkins, 145 So. 3d 

at 242. The court then held: 

we must conclude the legislature intended to provide that the time 

limitation for asserting the survival action is a one year period of 

liberative prescription. There can be little doubt that the 

legislature is well aware of the distinction between a period of 

liberative prescription and a period of peremption. Certainly the 

legislature could have deemed the time period one of peremption 

had it desired to do so. The legislature must have intended the 

time period to be one of liberative prescription, given that the term

“prescriptive period” has a well-settled meaning in our law and 

jurisprudence.

Watkins, 145 So. 2d at 243-44 (citations omitted). In light of the Supreme 

Court of Louisiana’s resolution of this question, we must adopt its holding that 

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Article 2315.1, as amended in 1986, contains a prescriptive period. We 

therefore reverse the district court’s dismissal of the plaintiffs’ claims based on 

its contrary holding.1 In light of this determination, there is no need for us to 

address the Plaintiffs’ alternative argument regarding the effect of CERCLA.

III. Conclusion

For the foregoing reasons, we REVERSE the district court’s dismissal of 

the plaintiffs’ claims and REMAND to the district court for further proceedings 

consistent with this opinion.

1 The Watkins court addressed only the interpretation of Article 2315.1 after the 1986 

amendments. See Watkins, 145 So. 2d at 242. Plaintiffs-Appellants’ briefing on appeal did 

not contest the district court’s additional holding that prior to the 1986 amendments, the

time period governing survival actions was peremptive. 

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