186 So. 3d 152
La. Ct. App.2015Background
- In March 2006 a vehicle carrying infant Geneva Fils (in foster care under the State Department) was struck in a head-on collision; Geneva suffered severe brain injuries.
- Geneva had been placed in foster care with Mayóla Calais by the Department prior to the accident.
- Geneva’s biological parents initially sued; after changes in custody and deaths, Geneva’s maternal aunt Calvernia Reed was substituted as a plaintiff and later obtained legal custody and was appointed tutor in August 2009 (three years after the accident).
- Reed, in her individual capacity, amended to assert a loss of consortium claim for the loss of love, affection, and relationship with Geneva resulting from Geneva’s injuries.
- The State (Department) moved for partial summary judgment seeking dismissal of Reed’s individual loss of consortium claim on the ground Reed was not a parent or guardian at the time of the accident.
- The trial court granted the motion and dismissed Reed’s individual loss of consortium claim with prejudice; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a non‑biological, non‑adoptive person who later became tutor/custodian (after the injury) may bring a loss of consortium claim based on the child’s pre‑existing injury | Reed argued she qualifies as a “parent” (citing prior juvenile code definitions) and thus may recover loss of consortium for the disruption of her relationship with Geneva | The Department argued Reed was not a biological or adoptive parent at the time of the accident and the statutory beneficiaries for wrongful death/loss of consortium are limited to those classes; a later appointment as tutor/custodian does not confer that right | Court held Reed cannot maintain a loss of consortium claim; only biological or adoptive parents (or those statutorily within the designated beneficiary classes) may recover. Reed’s post‑accident custody/tutor appointment does not create the cause of action |
| Whether the trial court’s partial final judgment was properly certified for immediate appeal | Reed implicitly argued for appellate review | The Department treated the dismissal as final and appealed; trial court designated final under Art. 1915(B) | Court found designation proper (and alternatively that Art. 1915(A) rendered the dismissal final as to Reed individually) and exercised jurisdiction |
| Whether Reed could instead recover attendant‑care or related damages in her own right | Reed suggested her caregiving/time/lost income should be compensable to her individually | Department treated attendant care as part of Geneva’s damages, not a separate loss of consortium claim for Reed | Court rejected using the loss‑of‑consortium vehicle to recover attendant‑care compensation; attendant care is an element of the injured party’s recovery, not a separate consortium claim |
Key Cases Cited
- Motorola, Inc. v. Associated Indem. Corp., 867 So.2d 715 (La. App. 1st Cir. 2003) (appellate courts must examine subject matter jurisdiction and discusses final judgment certification)
- R.J. Messinger, Inc. v. Rosenblum, 894 So.2d 1113 (La. 2005) (factors for determining whether partial judgment should be certified as final for immediate appeal)
- Hines v. Garrett, 876 So.2d 764 (La. 2004) (standard for de novo appellate review of summary judgment)
- Leckelt v. Eunice Superette, 555 So.2d 11 (La. App. 3d Cir. 1989) (wrongful death and related statutory beneficiary classes are strictly statutory; non‑listed persons are excluded)
- Roche v. Big Moose Oil Field Truck Service, 381 So.2d 396 (La. 1980) (prospective or incomplete adoptions do not make parties adoptive children for purposes of wrongful death statute)
- Tanner v. Fireman's Fund Ins. Cos., 589 So.2d 507 (La. App. 1st Cir. 1991) (gratuitous attendant care may be recoverable as an element of the injured party’s damages)