312 Conn. 631
Conn.2014Background
- Mueller was negligently diagnosed and treated for cancer by Wertheim from 2001 to 2004, with cancer progression after the error.
- Stacey and Mueller had been domestic partners since 1985, living together; Stacey and Mueller joined in a civil union in 2005, though the underlying tort occurred before civil unions were available.
- Mueller and Stacey filed a medical malpractice suit on January 10, 2006; Stacey asserted a loss of consortium claim on their relationship.
- Defendants moved to strike the loss of consortium claim, arguing Stacey and Mueller were not married or in a civil union at the time of the tort; the trial court granted the motion.
- Appellate Court affirmed the trial court on an alternative ground (that the complaint did not allege they would have married or entered a civil union at the time) and did not reach Gurliacci-based analysis; Kerrigan (2008) held same-sex marriage unconstitutional at the time.
- This Court held that the Appellate Court’s affirmance on the unpreserved ground is reversible under plain error, and that Stacey may amend to claim they would have married or formed a civil union but for the prohibition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Review of unpreserved ground for affirmance | Stacey contends Appellate Court improperly relied on an unpreserved ground. | Defendants argue preservation and waiver rules prevent review of that ground. | Plain-error reversal; issue review allowed and remand permission granted. |
| Allowance of loss of consortium if amended | Stacey would plead they would have married or formed a civil union if not barred, justifying recovery. | Gurliacci requires actual marriage at time of injury or disallowance otherwise. | Yes; if amended to allege would have been married or in a civil union, loss of consortium may be recognized. |
Key Cases Cited
- Gurliacci v. Mayer, 218 Conn. 531 (1991) (formal marriage as touchstone for consortium; limits on unmarried claims)
- Hopson v. St. Mary’s Hospital, 176 Conn. 485 (1979) (loss of consortium recognized within married couple context; public policy considerations)
- Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) (unconstitutional restriction on same-sex marriage; societal change and rights)
- Mendillo v. Board of Education, 246 Conn. 456 (1998) (public policy considerations in expanding/limiting loss of parental consortium)
- Charron v. Amaral, 451 Mass. 767 (2008) (Massachusetts addressing same issue post-Goodridge; retroactivity concerns)