Belcher v. Goins

• Court: West Virginia Supreme Court
• Writing for the Court: McHUGH
• Citation: Belcher v. Goins, 184 W.Va. 395, 400 S.E.2d 830 (W. Va. 1990)
• Decision Date: 19 December 1990
• Docket Number: No. 19566,19566
• Parties: Phyllis BELCHER and Stephanie L. Belcher v. Sherry L. GOINS.

Page 830

400 S.E.2d 830

184 W.Va. 395

Phyllis BELCHER and Stephanie L. Belcher v. Sherry L. GOINS.

No. 19566.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1990.

Syllabus by the Court

1. "Unemancipated minors enjoy the same right to protection and to legal redress for wrongs done them as others enjoy." Syl. pt. 1, Lee v. Comer, 159 W.Va. 585, 224 S.E.2d 721 (1976).

2. "Parental consortium" refers to the intangible benefits to a minor child arising from his or her relationship with such child's natural or adoptive parent. It includes society, companionship, comfort, guidance, kindly offices and advice of such parent and the protection, care and assistance provided by the parent. Consistent with the wrongful death statute, W.Va.Code, 55-7-6, as amended, parental consortium also includes sorrow and mental anguish concerning the impairment of the relationship.

3. Any minor child, or a physically or mentally handicapped child of any age who is dependent upon his or her natural or adoptive parent physically, emotionally and financially, may maintain a cause of action for loss or impairment of parental consortium, against a third person who seriously injures such child's parent, thereby severely damaging the parent-child relationship. To the extent that Wallace v. Wallace, 155 W.Va. 569, 184 S.E.2d 327 (1971), is inconsistent herewith, it is overruled.

4. In determining the amount of damages to award the minor or handicapped child, the relevant factors include, but are not limited to, such child's age, the nature of the child's relationship with the parent, the child's emotional and physical characteristics and whether other consortium-giving relationships are available to such child.

5. A claim for parental consortium ordinarily must be joined with the injured parent's action against the alleged tortfeasor.

6. When there is a parental consortium claim, the nonfatally injured parent is entitled to claim recovery for the loss or impairment of the parent's pecuniary ability to support the minor or handicapped child, while the minor or handicapped child is entitled to claim recovery for loss or impairment of those nonpecuniary elements constituting parental consortium.

7. Because a minor or handicapped child's claim for loss or impairment of parental consortium and the parent's claim for physical injuries are based upon the same conduct of the alleged tortfeasor, and because the child's claim is secondary to the parent's primary claim, any percentage of comparative contributory negligence attributable to the parent will reduce the amount of the child's recovery of parental consortium damages.

8. Applying the factors set forth in syllabus point 5 of Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), the principles of this opinion are fully retroactive, even to the very limited number of cases which are otherwise subject to this opinion and in which the parent's action for physical injuries has already been settled or finally adjudicated. However, to prevent stale claims, a parental consortium claim may not in any event be maintained if the parent was injured more than two years prior to this opinion. Furthermore, to accommodate the usual requirement that a parental consortium claim be joined with the parent's action for physical injuries, a parental consortium action must be brought no later than thirty days after this opinion is filed, where the parent's action was brought prior to this opinion for injuries which were inflicted no more than two years prior to this opinion.

9. "Parental consortium" does not include the value of nursing, domestic or household services provided by a minor or handicapped child to the injured parent.

G. David Brumfield, Welch, for Phyllis Belcher and Stephanie L. Belcher.

Joseph M. Sanders, Jr., Sanders, Watson & White, Bluefield, for Sherry L. Goins.

McHUGH, Justice:

The primary issue presented in this case is whether this jurisdiction recognizes a child's claim for loss or impairment of parental consortium, against a tortfeasor for nonfatal, negligently inflicted injuries sustained by the parent. We believe the Circuit Court of McDowell County answered the certified questions correctly in part and incorrectly in part. While this Court herein recognizes such a claim by a minor child, or by a handicapped child of any age who is dependent upon the injured parent, the plaintiff here was not a minor or handicapped child at the time the cause of action accrued. Accordingly, we remand this case with directions for the trial court to enter judgment for the defendant on the claim in question.

I.

Phyllis Belcher, mother of the plaintiff, Stephanie L. Belcher, was injured when the car she was driving was negligently struck head-on by a car driven by the defendant, Sherry L. Goins. Phyllis Belcher's claim against the defendant has been settled and dismissed with prejudice.

At the time of the collision the plaintiff was over eighteen years of age but resided in her mother's home with her mother. The plaintiff was not in or near her mother's car at the time of the collision.

As a count in her amended complaint, the plaintiff sought recovery from the defendant for "loss of love, companionship, and consortium of and from her mother," for mental anguish and for nursing and household services provided by the plaintiff to her mother after her mother was injured.

The defendant moved to dismiss for failure to state a claim upon which relief may be granted. The trial court (the Circuit Court of McDowell County) denied such motion. The trial court, upon the joint application of the parties, certified the following five questions, ¹ each answered in the affirmative by the trial court:

(1) Does a child have a claim for loss of consortium against a tort-feasor occasioned because of injuries to a parent?

(2) Does a child have a claim for mental anguish against a tort-feasor for negligent injuries suffered by a parent?

(3) Does a child have a claim against a tort-feasor for nursing, domestic, or household services provided by the child to a parent as a result of injuries suffered by a parent?

(4) Are the following elements included and encompassed within the broad definition of loss of consortium: mental anguish suffered by a family member as a result of an injury to another family member, loss of love, companionship, society of and from an injured family member, and provision for nursing, household or domestic services provided by a family member to another injured family member?

(5) Does a child, regardless of age, have a claim for loss of consortium against a tort-feasor as a result of injuries inflicted upon a parent[,] provided the child resides in the same household with the injured parent?

Because most of these questions are overlapping or closely related, we have combined all but the third question for purposes of our discussion. The third question will be discussed separately. ² Limiting our holding to a minor child, and to a handicapped child who is dependent upon the injured parent, we answer each of the first four questions in the affirmative, except for the third question and the corresponding part of the fourth question relating to nursing, domestic or household services. We answer the fifth question in the negative.

II.

A.

Traditionally, at common law "consortium" was defined as consisting of the alliterative trio of (1) services, (2) society and (3) sexual relations, and the husband was entitled to recover damages from a tortfeasor when one or more of these elements of the relationship with his wife were lost or impaired due to an injury to her. For example, the Court, in syllabus point 1 of Shreve v. Faris, 144 W.Va. 819, 111 S.E.2d 169 (1959), listed these three possible elements of spousal consortium:

In an action for damages, the plaintiff may recover for the loss or the impairment of the services and the society of his wife and of her capacity to engage in sexual intercourse, as elements of consortium, when it appears from the evidence that such loss or impairment results from injuries to his wife which are caused by the negligence of the defendant.

See also Black's Law Dictionary 309 (6th ed. 1990).

Similarly, "parental consortium" refers to the relationship between parent and child and is the right of the child to the intangible benefits of the companionship, comfort, guidance, affection and aid of the parent. Gail v. Clark, 410 N.W.2d 662, 668 (Iowa 1987) (recognizing parental consortium claim under state dramshop statute). See also Ueland v. Pengo Hydra-Pull Corp., 103 Wash.2d 131, 132 n. 1, 691 P.2d 190, 191 n. 1 (1984) (en banc). ³ As a leading text writer has stated, it is useful to refer to the parent-child relationship, as well as the husband-wife relationship, as constituting consortium; the important aspects of the parent-child relationship, apart from the parent's duty of pecuniary support, are the intangibles which follow from living together as a family, including the affection, society, companionship, the mutual learning and the moral support given and received. 1 H. Clark, The Law of Domestic Relations in the United States, § 12.1, at 651 (2d ed. 1987).

The legislature of this state has recognized the validity of a claim by family members, including minor children, for damages for loss of consortium, including mental anguish, in cases involving the wrongful death of a family member. ⁴ The wrongful death statute allows distribution of net damages, including noneconomic damages, to those persons named in the decedent's will, or, if there be no will, to those persons who would be the decedent's heirs or next of kin under the laws of descent and distribution. W.Va.Code, 55-7-6(b) [1989]. Accord, syl. pt. 4, Rice v. Ryder, 184 W.Va. 255, 400 S.E.2d 263 (1990). Net damages distributable to these family members "include ... damages for the following: (A) Sorrow, mental anguish, and solace which may include society,...