DeLoach by DeLoach v. Companhia de Navegacao Lloyd Brasileiro

• Decision Date: 31 January 1986
• Docket Number: 85-1517,Nos. 85-1200,s. 85-1200
• Citation: 782 F.2d 438
• Parties: , 54 USLW 2428 Maurice G. DeLOACH, a minor by his parents, Glen M. and Alecia DeLOACH, Appellant v. COMPANHIA de NAVEGACAO LLOYD BRASILEIRO, Appellee in 85-1200. and Maurice G. DeLOACH, a minor by his parents, Glen M. and Alecia DeLOACH, Appellant v. MARKIM CRANE RENTAL, a DIVISION OF MARVIN GROUP, INC., Appellee in 85-1517.
• Court: U.S. Court of Appeals — Third Circuit

Page 438

782 F.2d 438

1986 A.M.C. 1217, 54 USLW 2428

Maurice G. DeLOACH, a minor by his parents, Glen M. and Alecia DeLOACH, Appellant v. COMPANHIA de NAVEGACAO LLOYD BRASILEIRO, Appellee in 85-1200. and Maurice G. DeLOACH, a minor by his parents, Glen M. and Alecia DeLOACH, Appellant v. MARKIM CRANE RENTAL, a DIVISION OF MARVIN GROUP, INC.,

Appellee in 85-1517.

Nos. 85-1200, 85-1517.

United States Court of Appeals, Third Circuit.

Argued Nov. 4, 1985.

Decided Jan. 31, 1986.

Louis Samuel Fine (argued), Sarah Hohenberger, Fine and Staud, Philadelphia, Pa., for appellants.

Thomas Lane Anderson (argued), Robert C. Mickle, Jr., Rawle & Henderson, Philadelphia, Pa., for appellee, Companhia de Navegacao Lloyd Brasileiro.

James M. Marsh, Perry S. Bechtle, Samuel J. Pace, Jr., for appellee, Markim Crane Rental, a div. of Marvin Group, Inc.; LaBrum and Doak, Philadelphia, Pa., of counsel.

Before SEITZ, WEIS, and ROSENN, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

In these cases the minor plaintiff seeks damages for the loss of companionship and guidance of his father who was injured in the course of his employment as a longshoreman. The district court denied the claims, finding them unsupported by authoritative precedent in either maritime or common law. We will affirm.

The two separate suits filed by the minor plaintiff were dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. These appeals followed.

The plaintiff's father, Glen M. DeLoach, sustained severe injury to his shoulder when he was struck by a crate that fell while being lifted by a crane owned and leased by the defendant Markim Crane Rental. The accident occurred on January 6, 1984 in the port of Philadelphia aboard a ship owned and operated by the defendant, Companhia de Navegacao Lloyd Brasileiro.

Glen DeLoach and his wife filed suits against both defendants seeking damages for his personal injuries and his spouse's loss of consortium. The minor plaintiff, age 5, filed separate suits against each defendant. He asserted claims for loss of parental consortium, care, love, companionship, playtime, guidance, educational help, financial and nonfinancial support, services, aid and comfort of his father, and mental distress occasioned by his father's disability.

In passing on the minor plaintiff's claim against the shipowner, the court found that the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Secs. 901, et seq., provided no cause of action for loss of parental consortium. The district judge then examined the general maritime law. Finding no authoritative precedent in that area, he looked to the common law where the overwhelming majority of states have rejected similar claims by children of injured parents. Persuaded by the state courts' reasoning, the district court concluded that the plaintiff's claim against the ship owner was not cognizable in maritime law.

The child's claim for mental distress was denied as well. The minor plaintiff had not witnessed the accident, nor was he near the scene; therefore, even under state court decisions allowing recovery for emotional shock by a bystander, the plaintiff's claim was not viable. The district court made similar rulings on both counts of the suit against the crane owner.

I.

On appeal, plaintiff does not dispute the district court's conclusion that he cannot recover against the ship owner under the Longshoremen's and Harbor Workers' Act; therefore, the focus of our inquiry is on general maritime law. We are urged to construe maritime law in a humanitarian fashion and follow the growing minority of state courts which allow claims for deprivation of parental consortium.

Plaintiff relies heavily on Sea Land-Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct 806, 39 L.Ed.2d 9 (1974). In that case, the Court permitted the widow of a longshoreman who had died from his injuries to maintain a maritime wrongful death action and recover for loss of consortium, despite the fact that during his lifetime the decedent had settled his own claim for personal injuries.

The Court further extended general maritime law in American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980) by allowing the wife of an injured longshoreman to recover damages for the loss of his society. The Court concluded that the deprivation suffered by a longshoreman's spouse is compensable under general maritime law whether his injuries are fatal or nonfatal, notwithstanding that such damages are precluded by the Death on the High Seas Act and the Jones Act. In coming to that decision, the Court relied on the holdings of the vast majority of states that a spouse could recover for loss of society.

The Supreme Court has not addressed the rights asserted by the minor plaintiff here, but in Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 479 (5th Cir.1984), a court of appeals rejected recovery for loss of parental consortium in a Jones Act case. Finding no authorization in the statute, the court relied on the "overwhelming majority of the courts" that had denied such claims under state tort law. However, a district court, influenced by a state statute authorizing such recovery, did entertain children's suits for loss of parental services under general maritime law in Kelly v. T.L. James Co., Inc., 603 F.Supp. 390 (W.D.La.1985).

In this case the district court recognized that where the statutory or general maritime law does not provide clear precedent, courts may look to the prevailing common law. American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980). Until 1980 the state courts were unanimous in denying societal claims by children, but in that year Massachussetts abandoned its earlier position and allowed recovery in Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980). In the next few years five other states followed that lead: Michigan, Iowa, Wisconsin, Washington, and Vermont. ¹

The reasoning of those cases, however, has not convinced other courts that have confronted the issue since 1980. Florida, New York, Oregon, Georgia, North Dakota, Minnesota, Texas, and Illinois, among others, ² continue to deny recovery, adhering to the rule previously announced by the courts in some twenty states. The Restatement (Second) of Torts Sec. 707(a) as revised in 1969, also did not recognize liability for the loss suffered by children of negligently injured parents. See Annot. 11 A.L.R. 4th 549 (1982). ³

Although common law and statutory differences among the states have played a role in the results reached in various cases, major reasons cited both for and against recognition of the cause of action fall into frequently repeated patterns.

Courts favoring the new claim stress the similarity to spousal consortium, the inconsistency of recognizing loss of services of a deceased parent under wrongful death statutes but not permitting recovery when an injured parent survives, and an assumed need to compensate for an acknowledged loss to the children.

Those courts brush aside such countervailing considerations as increased litigation and insurance costs, finding them speculative and insufficient to prevent creation of a new cause of action. They also point out that courts presently award monetary damages for such intangibles as emotional distress as well as pain and suffering. Declining to await legislative action, the courts that have adopted the new theory of recovery have relied on their duty, as they perceive it, to mold the common law to meet society's needs.

The courts refusing to recognize the children's claims question the advisability of equating parental society with a monetary value. In addition, they point to the difficulties inherent in defining the limits of the new right (e.g., whether it would apply only to minor children, whether it would extend to those standing in loco parentis ), and note the probable increased insurance costs and added burden on the courts. A number of the courts also believe that this issue, essentially one of policy, should be resolved by the legislature.

There is room to question the desirability of a court's decision to create a new cause of action without adequate demonstration of both need and cost. Curiously, with respect to increased costs of administering the claims, both the courts which dismiss that factor as insubstantial, as well as those which use it as an argument against recognition of a new cause of action, do so without any empirical data or statistical projections. In a concurring opinion, one judge has acknowledged that legislatures possess superior resources with which to weigh all potentially affected interests, Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 652 P.2d 318, 333 (Tanzer, J. concurring ).

The majority in Norwest emphasized that in tort law, negligence generally imposes an obligation to compensate only the person immediately injured, not all those who predictably suffer loss as a consequence of the injury. Analogies to the existing exceptions to that principle--spousal consortium, parents' actions for their children's injuries, and statutory wrongful death damages--were considered inadequate justification for further expansion to include a child's consortium claim.

Other courts have also questioned the use of spousal consortium as support for a child's right of action, pointing out the differing nature of the relationship. Those judges also doubt the wisdom of earlier decisions attempting to promote equality of treatment by extending the right of consortium to the wife from its common law origins with the husband. Because the husband's right is a "historical curiosity", it has been suggested that the better way to achieve equality would be the abolition of consortium for both spouses. See Berger v. Weber, 303 N.W.2d at 431 (Levin, J. dissenting ).

The arguments on both sides of the issue have merit, but unquestionably as the...