Clark v. RomeoClark v. Romeo
- Reporters:
- ,
- Before:
- Zampano
RULING ON MOTION TO AMEND
ZAMPANO, District Judge.This diversity action was commenced by the plaintiff, James G. Clark, to recover damages for the alleged wrongful death of his wife in an automobile accident. He now moves to amend the complaint to add a claim for loss of consortium on behalf of his infant children. The defendants oppose the motion on the ground that the amendment fails to set forth a viable cause of action under Connecticut law.
Plaintiff concedes no Connecticut case authorizes the cause of action: He argues, however, that were the Connecticut Supreme Court to decide the question, it would permit a loss of consortium recovery by minors under the principles enunciated in Hopson v. St. Mary’s Hospital, 176 Conn. 485, 408 A.2d 260 (1979). In addition, plaintiff contends that a “consortium” interest for minors is a logical extension of the growing trend in the law to increase the legal rights of children.
I
In its landmark decision in
Hopson,
the Connecticut Supreme Court overruled precedent and held that “either spouse has a claim for loss of consortium shown to arise from a personal injury to the other spouse caused by the negligence of a third person .... ”
Id.
at 496, 408 A.2d 260. See generally Balbirer & McLachlin,
Survey of Developments in Connecticut Family Law,
53 Conn.B.J. 391, 420 (1979); Horton,
Connecticut Supreme Court Review 1978-79 Court Year,
54 Conn.B.J. 85, 105 (1980). Several
post-Hopson
Connecticut cases have extended claims for loss of consortium to actions brought by widowed spouses pursuant to Connecticut’s wrongful death stat
*1210
ute,
While there is a conflict in the law of consortium with respect to a surviving spouse, the
post-Hopson
case law is unanimous in denying a cause of action for a child’s loss of parental consortium. In
Reilly v. DiBlanco,
Conn.L. Tribune, Mar. 30, 1981, at 13, col. 2 (Super.Ct. Feb. 17, 1981), Judge Levine held that a minor could not sue a negligent third party for loss of consortium. Moreover, in
Hinde,
Judge Lexton held in a
The Connecticut Supreme Court, since its Hopson decision, has not directly addressed the question of whether an infant has a claim for loss of consortium. This Court must, therefore, apply what it finds “to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the state.” Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967). See also Cunninghame, v. Equitable Life Assurance Society of the United States, 652 F.2d 306, 308 (2 Cir.1981) (“the federal court must make an estimate of what the state’s highest court would rule to be its law ....”)
Plaintiff submits that, in the light of its reasoning in Hopson, the Connecticut Supreme Court would not adopt the results set forth in Reilly and Hinde. This Court disagrees.
It is clear that the Connecticut Supreme Court in
Hopson
limited its consortium ruling to the marriage relationship.
Id.
176 Conn. at 487, 496, 408 A.2d 260.
1
Neither the court’s rationale, nor any reasonable inference to be drawn therefrom, permits a conclusion that it intended to overrule its prior decisions which proscribed loss of consortium claims by minor children. See, e.g.,
Foran
v.
Carangelo,
153 Conn. 356, 361, 216 A.2d 638 (1966) (
II
In the case sub judice, however, the Court is faced with the opposite situation. The majority of courts that have addressed the issue have denied minors a loss of consortium claim for tortious injury to the parent. See, e.g., Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424, 439 (Mich.1981) (Levin, J. dissenting) (citing 19 jurisdictions which have disapproved the cause of action); Reilly at 14 (citing Borer v. American Airlines, Inc., 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858 (1977)). (18 jurisdictions). See generally Note, The Childs Right to Sue for Loss of a *1211 Parent’s Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 Boston Univ.L.Rev. 722, 722 (“Courts have consistently refused to grant a right of action to a child for loss of a parent’s love, care and companionship resulting from tortious injury to the parent.”) (citations omitted); Liebo, Parental Consortium, 25 For the Defense 9 (1983) (majority of jurisdictions have refused to recognize a claim for ‘parental consortium’). Only a few states recognize a child’s claim for loss of consortium. See, e.g., Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981); Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (Mass.1980); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (Mich.1981).
Moreover, the Connecticut Supreme Court in
Foran
expressly ruled that
The Court is therefore of the opinion that minors cannot bring a claim for loss of consortium under Connecticut law for either antemortem or postmortem damages.
Accordingly, plaintiff’s motion to amend the complaint is denied. 2
SO ORDERED.
Notes
. See generally Comment, Wrongful Death and Loss of Consortium, 14 Conn.L.Rev. 631, 647 n. 83 (1982) (loss of consortium interest limited to marital relationship).
. In view of this ruling, the Court need not address defendants’ premature motion to strike and that motion is off as moot. See Septon v. The Rumsey Hall School, Inc., No. H-82-155 slip op. at 2 (D.Conn. Mar. 28, 1983).