• A Prediction Realized: The Connecticut Supreme Court Reverses Itself and Recognizes a Cause of Action for Loss of Parental Consortium
  • October 27, 2017 | Author: Laura Pascale Zaino
  • Law Firm: Halloran & Sage LLP - Hartford Office
  • In Mendillo v. Bd. Of Educ., 246 Conn. 456 (1998), a divided Connecticut Supreme Court declined to recognize a cause of action for loss of parental consortium by a minor child. However, the two concurring and dissenting Justices predicted that the court would soon revisit and reverse that decision. Id. at 497 (Berdon, J. concurring in part and dissenting in part). They were correct. Just over seventeen years later, on October 6, 2015, the Supreme Court, divided again, released Campos v. Coleman, 319 Conn. 36 (2015), in which it expanded the scope of derivative claims in personal injury actions to include loss of parental consortium by minor children, and overruled Mendillo. According to the Campos majority of four, “public policy factors” dictated this 180 degree change. Specifically, “the unique emotional attachment between parents and children, the importance of ensuring the 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 the public policies in favor of compensating innocent parties and deterring wrongdoing provide compelling reasons to recognize such a cause of action.” Id. at 43. But these same factors existed when Mendillo was decided. Id. at 57.

    Perhaps this about face has something to do with an arguably more compelling fact pattern in Campos, which the majority deemed “tragic but straightforward.” There, the plaintiff’s decedent was riding a bicycle when he was struck by the defendants’ vehicle. He suffered severe injuries to which he succumbed three days later, and his three children attempted to state claims for loss of parental consortium which were stricken. In Mendillo, by contrast, the plaintiff claimed damages arising from an alleged wrongful termination of employment and her children made their claims in that context. Indeed, the Mendillo concurrence and dissent acknowledged that “[t]he facts of this case do not set forth the ideal scenario with respect to this cause of action” but it then proffered assumed facts for consideration which are quite similar to the actual facts in Campos. Mendillo, 246 Conn. at 497, n.2 (Berdon, J., concurring in part and dissenting in part) Thus, this actual distinction may have tipped the balance by presenting the same policy factors in a different light. Indeed, Justice Palmer, the only member of the Campos panel who was also a member of the Mendillo panel, changed his mind. In Mendillo, Justice Palmer joined the majority of 5 and, seventeen years later, he wrote for the Campos majority of 4 that overruled Mendillo.

    In any event, and irrespective of why (other factors might include the Court’s composition and the majority’s interpretation, albeit disputed, of extra-jurisdictional authority), there now exists a common law cause of action for loss of parental consortium in Connecticut. This cause of action, however, does come with “certain restrictions.” Specifically, the claim must be joined with the parent’s negligence claim when possible, and the jury must be instructed that only the child raising the claim can recover the value of the parent’s services. Also, because the claim is derivative, it will be barred when the parent’s action has been settled or adversely adjudged on the merits. Moreover, only a “person” who was a minor on the date of the parent’s injury can raise the claim, and damages may be awarded only for the time between the date of injury and the date the child reaches majority. Finally, the claim is limited to the parent’s ante-mortem injuries only.

    According to the dissent, the majority overstepped its bounds when it overruled Mendillo by deciding a question that should have been left to the legislature. Campos, 319 Conn. at 64 (Zarella, J. dissenting) The dissent states that “the legislature, unlike this court, is institutionally equipped to gather all of the necessary facts to determine whether a claim for loss of parental consortium should be permitted and, if it should, how far it should extend.” Id. at 66 (Zarella, J. dissenting; emphasis in original). Moreover, “the majority’s recognition of a cause of action for loss of parental consortium raises more questions than it answers.” Id. at 76 (Zarella, J., dissenting). Where there was certainty and uniformity under Mendillo, there is now, under Campos, an undefined scope with respect to liability. We do not know, for example, whether grandchildren can bring claims when a grandparent who is raising them is injured. Likewise, we do not know whether liability extends to relationships between a child and a noncustodial parent or between step-children and step-parents. Id. This uncertainty will now have to be anticipated by insurers and litigated by parties, both at great expense, unless and until the legislature offers some clarification or the Court overrules itself again.

    To this end, while the legislature did not respond to the Court’s holding in Mendillo; Id. at 78, n. 10 (Zarella, J. dissenting); Connecticut’s Senate passed S.B. No. 247 (as amended by Senate “A”), “An Act Concerning a Cause of Action for Loss of Consortium by a Minor Child with Respect to the Death of a Parent,” in April, 2016. That Bill, which the House failed to take up prior to the end of the 2015-16 legislative session, effectively embraced the Campos decision and expressly sought to extend it to claims for post-mortem loss of consortium. See also Conn. Gen. Stat. § 52-555a (authorizing cause of action for loss of spousal consortium arising from death of spouse in response to Supreme Court’s decision in Ladd v. Douglas, 203 Conn. 187 (1987)).

    Just recently, however, during the January 2017 Session, Proposed Bill No. 6898, “An Act Limiting Loss of Consortium Claims to Persons Who Are Married,” was raised in the House. This broadly worded bill seeks that “chapter 925 of the general statutes be amended to limit a loss of consortium claim to an individual who is married at the time an injury is alleged to have occurred.” Unlike S.B. No. 247, this proposal does not reference the Campos decision and it seems more likely that it is a delayed response to the Supreme Court’s 2014 decision in Mueller v. Tepler, 312 Conn. 631. There, the Court allowed a spousal loss of consortium claim to stand even though the claimant was not married to the plaintiff at the time of the alleged negligent conduct. But, the proposal does not reference the Mueller decision, either, and it is broad.

    Thus, whether there will ultimately be a legislative response to Campos, and what that will be, remains to be seen. In the meantime, plaintiffs may pursue, and defendants must defend against, common law loss of parental consortium claims as defined by Campos. Indeed, Halloran & Sage received its first such claim to defend within one week of Campos being pre-released.