The Connecticut Supreme Court recently recognized a derivative cause of action for loss of parental consortium on behalf of a minor child in Campos et al vs. Coleman et al, 319 Conn. 36 (2015), thereby reversing prior precedents. In Mendillo vs. Board of Education, 246 Conn. 456, 461, 495-96 (1998), just seventeen years earlier, the Connecticut Supreme Court declined to recognize such a cause of action. The Supreme Court has now expressly overruled Mendillo, in a 4 to 3 decision, thereby permitting children to sue for loss of a parent’s consortium if the parent is injured in an accident.
In Mendillo, the Court had refused to recognize a claim for loss of parental consortium, largely based upon public policy reasons including: (1) such a cause of action would require arbitrary limitations; (2) an additional economic burden would be imposed on the general public; (3) the uncertainty that the recognition would yield significant social benefits; (4) the substantial risk of double recovery; and (5) the weight of judicial authority. Id., at 485. During the same general time period that Mendillo was decided, Connecticut courts recognized two other derivative claims–loss of spousal consortium, Hopson v. St. Mary’s Hospital, 176. Conn. 485, 493, (1979), and bystander emotional distress, Clohessy v. Bachelor, 237 Conn. 31, 49 (1966), while expressly rejecting the recognition of loss of parental consortium claims.
In the Campos decision, however, the Court held that public policy factors now favored the recognition of the case of action and outweighed those factors which previously disfavored recognition. In particular, the Court reasoned that the “unique emotional attachment between parents and children, the importance of ensuring continuity of the critically important services that parents provide to their children, society’s interest in the continued development of children as contributing members of society, and public policies in favor of compensating innocent parties and deterring wrongdoing provide compelling reasons to recognize such a cause of action.”
Although the Court now recognizes a claim for loss of parental consortium, it placed restrictions on the claim. First, loss of parental consortium claims must be joined with the negligence claims of the injured parent, whenever possible. Second, the jury will be instructed that only the child raising the claim can recover the pecuniary value of the loss of parental services to prevent double recovery. Third, because a loss of parental consortium claim is derivative of the injured parent’s cause of action, the consortium claim would be barred when the action brought by the injured parent terminates by settlement or judgment, like other derivative claims. Fourth, a loss of parental consortium claim may be raised only by a person who was a minor on the date that the parent was injured and, damages may be awarded only for the period between the date of injury and the date the child reached majority, thereby limiting the pertinent time period to time before the child reaches the age of majority.
The Court declined to place a hard limitation on the cause of action to only those cases in which the parent has suffered a serious, permanent and disabling mental or physical injury which causes the parent-child relationship to be destroyed or nearly destroyed, which a requirement imposed in other jurisdictions. Rather, the fact finder will be directed to consider whether the parent’s injuries were insignificant or serious and, whether they were temporary or permanent. As a result, the Court left it to the trier of fact to consider the severity of the injury to the parent, the actual effect on the parent-child relationship, the nature of the child’s relationship with the parent, the child’s emotional and physical characteristics and whether other consortium relationships are available to the child. Id.
The Court refrained from placing any restrictions on the number of minor children who could assert the parental consortium claim. However, the Court suggested that the greater number of minor children, the lesser the degree of parental consortium to any one child, which would likely reduce the amount of damages to an individual child claimant proportionately. That said, there does not appear to be any strict formula that applies; each case will be decided by a jury on a case by case basis.
The court declined to address the question whether stepchildren, who have not been legally adopted by the injured stepparent, should be permitted to bring loss of consortium claims. The Court suggested that, in modern society, many children have parental-type relationships with adults, who are neither their biological parents nor their adoptive parents. The court reasoned that the loss of these relationships is no less severe than the harm suffered by biological and adopted children. The court expressly left open this issue for another day. As a result, we anticipate that future litigation will test the definition of “minor child” in defining the cause of action for loss of parental consortium.
The Court limited loss of parental consortium claims to those that result from a parent’s injury during the parent’s life, precluding a claim for damages arising out of the parent’s death. This limitation is consistent with the Court’s prior holding in Ladd v. Douglas, 203 Conn. 187 (1987) (loss of spousal consortium limited to the period of time the injured spouse lived following the accident, and not for the period of time following his death, because there is no common law right of recovery for the wrongful death of a victim on the part of his family members). Like spousal consortium claims, a minor child’s consortium claim will be limited to the period of the injured parent’s illness or disability, and does not include losses arising from the death of the parent.
Finally, the court held that the cause of action for loss of parental consortium would be applied retroactively. As a result, the Court held that the cause of action for loss of parental consortium applies retroactively to all pending cases. There can be no such claims when the injured parent’s claim for injuries have been concluded by settlement or judgment, or the statute of limitations had run, prior to the issuance of the Court’s decision.
The dissenting justices asserted that the majority stepped beyond its judicial decision making authority by making new law, which is a role reserved for the legislative body, rather than the function of the court, especially taking into account the public policy considerations underlying the majority decision. At this time, we do not know whether the legislature will step in to enact legislation which will overturn or modify the Campos holding by statutory dictate. The dissent also cautioned that the doctrine of stare decisis, which favors stability and continuity of case law and protects the expectations of those living under the law, dictates that Mendillo should be followed rather than overturned.
Insurers and claims handlers should be aware of the change in Connecticut tort law, recognizing the claim of loss of parental consortium for all cases pending as of October 6, 2015, unless a release was previously obtained. It is recommended that in serious injury cases, inquiry should be made whether the injured person has minor children, and if so, determine the ages of the minor children, so that reserves can be set that take into account those derivative claims. The emotional and physical characteristics of the individual child will likely be taken into account in assessing the value of the claim, and should be explored through investigation and discovery tools.
