Dearborn Fabricating and Engineering Corp., Inc. v. Wickham

• Decision Date: 27 March 1990
• Docket Number: No. 71S03-9003-CV-228,71S03-9003-CV-228
• Citation: 551 N.E.2d 1135
• Parties: DEARBORN FABRICATING AND ENGINEERING CORP., INC., Appellant (Defendant Below), v. William D. WICKHAM, Pamela Wickham, Le Ann Wickham, and Jennifer Wickham, Appellees (Plaintiffs Below).
• Court: Indiana Supreme Court

Page 1135

551 N.E.2d 1135

58 USLW 2596

DEARBORN FABRICATING AND ENGINEERING CORP., INC., Appellant (Defendant Below), v. William D. WICKHAM, Pamela Wickham, Le Ann Wickham, and Jennifer Wickham, Appellees (Plaintiffs Below).

No. 71S03-9003-CV-228.

Supreme Court of Indiana.

March 27, 1990.

R. Kent Rowe, Jerry E. Huelat, Martin J. Gardner, Rowe, Foley & Huelat, South Bend, for appellant.

Douglas A. Mulvaney, Stutsman Law Office, Elkhart, for appellees.

DICKSON, Justice.

This case presents a question of first impression in Indiana: whether a minor child has an independent claim for loss of parental consortium when a parent is negligently injured by a third person. The trial court and the Court of Appeals held that minor children may assert such a claim. Dearborn Fabricating and Eng'g Corp. v. Wickham (1988), Ind.App., 532 N.E.2d 16.

William D. Wickham; his wife, Pamela; and their two children, Le Ann and Jennifer, filed a complaint against Dearborn Fabricating and Engineering Corp. seeking damages for personal injuries William sustained when he fell through a hole in a catwalk. Count VII alleged a cause of action on behalf of Le Ann and Jennifer for the loss of the support, services, society and companionship of their father. Dearborn filed a motion to dismiss Count VII for failure to state a claim for relief. The trial court granted the motion in part by striking the word "support" (which the Wickhams do not challenge) and denied the motion as to the balance of the allegations. Id.

Writing for the Third District Court of Appeals, Judge Staton, with Judges Garrard and Miller concurring, noted that seven states since 1980 have recognized the action, but that thirty-three jurisdictions still refuse to do so. ¹ Id. See also Annotation, Child's Right of Action for Loss of Support, Training, Parental Attention, or the Like, Against a Third Person Negligently Injuring Parent, 11 A.L.R.4th 549 (1982). After identifying five arguments advanced by those courts declining to recognize the cause of action, the Court of Appeals opinion succinctly evaluated each argument with sound reasoning and concluded that Indiana should recognize a minor's cause of action for loss of consortium when the parent is negligently injured by a third party. Since its decision in Dearborn, the Third District Court of Appeals, comprised of a panel of judges different from those in Dearborn, decided Barton-Malow Co., Inc. v. Wilburn (1989), Ind.App., 547 N.E.2d 1123, in which Judges Hoffman and Shields (Staton, J., dissenting on this issue) declined to follow Dearborn, preferring to leave the issue for legislative resolution. To the contrary, we find the question of whether the common law should recognize a child's action for loss of parental consortium to be entirely appropriate for judicial determination. We grant transfer to review this new question of law.

One of the strongest arguments favoring the recognition of damages for loss of parental consortium is its similarity to damages customarily allowed for others with analogous claims. In the converse of the present facts, injuries to a child will entitle a parent to seek damages for loss of the child's services, society, and companionship. School City of Gary v. Claudio (1980), Ind.App., 413 N.E.2d 628. Similarly, an injured person's spouse may bring an action for loss of consortium. Troue v. Marker (1969), 253 Ind. 284, 252 N.E.2d 800 (wife's claim); Burk v. Anderson (1952) 232 Ind. 77, 109 N.E.2d 407 (husband's claim). Absent overriding considerations, relationship losses suffered by a child of an injured person should receive comparable treatment.

The appellant-defendant Dearborn argues that one such consideration is the childbearing and sexual relations aspect of the spousal relationship not present in that of parent and child. The "predominant element" in the concept of consortium has been described as the loss of the sexual relationship. See Salin v. Kloempken (1982), Minn., 322 N.W.2d 736, 738 (quoting Thill v. Modern Erecting Co. (1969), 284 Minn. 508, 510-11, 170 N.W.2d 865, 867-68).

There are significant differences between the marital relationship and the parent-child relationship that support the limitation of a cause of action for loss of consortium to the marital relationship. As we stated above, the spousal action rests in large part on the deprivation of sexual relations and the accompanying loss of childbearing opportunity, which does not exist as an element of damages in the child's action.

Salin, 322 N.W.2d at 739. However, we view such deprivation as but one component of a spouse's consortium action. "The other elements--love, companionship, affection, society, comfort, services and solace--are similar in both relationships and in each are deserving of protection." Berger v. Weber (1981), 411 Mich. 1, 14, 303 N.W.2d 424, 426.

Another difference often discussed is that actions by children for loss of parental consortium create problems of multiplication of actions and damages not present in the spousal context.

If the claim were allowed there would be a substantial accretion of liability against the tortfeasor arising out of a single transaction (typically the negligent operation of an automobile). Whereas the assertion of a spouse's demand for loss of consortium involves the joining of only a single companion claim in the action with that of the injured person, the right here debated would entail adding as many companion claims as the injured parent had minor children, each such claim entitled to separate appraisal and award. The defendant's burden would be further enlarged if the claims were founded upon injuries to both parents. Magnification of damage awards to a single family derived from a single accident might well become a serious problem to a particular defendant as well as in terms of the total cost of such enhanced awards to the insured community as a whole.

Borer v. American Airlines, Inc. (1977), 19 Cal.3d 441, 449, 563 P.2d 858, 863, 138 Cal.Rptr. 302, 307 (quoting Russell v. Salem Transportation Co. (1972), 61 N.J. 502, 506, 295 A.2d 862, 864).

The Supreme Court of Michigan responded to such an argument by noting that "[m]ultiplicity of actions arising out of the same tortious act are a present reality in tort law. Multiple actions may result whenever a single tortious act injures more than one person or property owned by more than one person." Berger, 411 Mich. at 14, 303 N.W.2d at 426. Although our Court of Appeals found that "concern for multiple claims and protracted litigation can be minimized by requiring joinder of the minor's consortium claim with the injured parent's claim unless it is not feasible in a particular case[,]" 532 N.E.2d at 17, it did not discuss the effect of Ind.Code Sec. 34-1-2-5, which tolls the statute of limitations during minority. As noted by the Supreme Court of Minnesota, such a tolling statute "establishes a roadblock to joinder in parental consortium cases that could be removed only by enactment of legislation creating a uniform limitations period for both the parent's action for personal injuries and the child's action for loss of parental consortium." Salin, 322 N.W.2d at 740.

More significant to us than this possible roadblock to consolidation created by the minors' statute of limitations, is the potential harm to the family which may be generated in children's actions for loss of consortium. We are particularly concerned that each claim for such damages will invite defendants to minimize the claim by seeking to prove inadequacy and weakness of a child's familial relationships, resulting in pretrial investigation, depositions, trial testimony, and final argument...