Hume v. Hertz Corp.

• Decision Date: 14 February 1986
• Docket Number: H-85-922(AHN).,Civ. No. H-85-688(AHN)
• Citation: 628 F. Supp. 763
• Court: U.S. District Court — District of Connecticut
• Parties: Kim L. HUME, Administratrix of the Estate of Richard Hume v. The HERTZ CORPORATION. Richard CLAPPER and Barbara Hellmers, Co-Administrators of the Estate of Greg Allen Clapper v. The HERTZ CORPORATION.

628 F. Supp. 763

Kim L. HUME, Administratrix of the Estate of Richard Hume v. The HERTZ CORPORATION.

Richard CLAPPER and Barbara Hellmers, Co-Administrators of the Estate of Greg Allen Clapper v. The HERTZ CORPORATION.

Civ. Nos. H-85-688(AHN), H-85-922(AHN).

United States District Court, D. Connecticut.

February 14, 1986.

Dale P. Faulkner, Suisman, Shapiro, Wool, Brennan, Gray & Faulkner, New London, Conn., for plaintiff.

John W. Lemega, Halloran, Sage, Phelon & Hagarty, Hartford, Conn., for defendant.

RULING ON PLAINTIFFS' MOTIONS TO AMEND THEIR COMPLAINTS

NEVAS, District Judge.

These two wrongful death actions were recently consolidated for joint discovery and trial. Fed.R.Civ.P. 42(a). Jurisdiction is based on diversity of citizenship. 28 U.S.C. Section 1332. The plaintiffs now move to amend their complaints under Rule 15(a), Fed.R.Civ.P. They seek to correct insufficiently stated claims and to cite proper statutory authority. In addition, they each seek leave to add a second state law claim to their complaints. The plaintiff Hume seeks to join this action in her individual capacity to allege a separate claim for loss of consortium. The plaintiffs Clapper and Hellmers seek leave to add a claim for double or treble damages. The defendant does not oppose these motions and has not filed any memoranda in opposition. For the reasons that follow, and subject to the conditions more fully discussed below, the motions to amend are granted.

Facts

The plaintiffs seek to recover damages permitted by Connecticut's wrongful death statute, Conn.Gen.Stat. Section 52-555,¹ for the deaths of the plaintiffs' decedents resulting from a motorcycle and automobile collision in New London, Connecticut on June 16, 1985. In separate but nearly identical complaints, the plaintiffs allege that the lessee of a car owned and leased by the sole defendant, the Hertz Corporation ("Hertz"), negligently and carelessly drove a Hertz car causing a collision with a motorcycle driven by Richard Hume. Greg Clapper was a passenger on the motorcycle. (Hume complaint at paras. 3-7; Clapper and Hellmers complaint at paras. 3-7). As a result of the collision Mr. Hume and Mr. Clapper suffered fatal injuries. (Hume complaint at para. 8; Clapper and Hellmers complaint at para. 8). The plaintiffs are Kim Hume, administratrix of the estate of Richard Hume, and Richard Clapper and Barbara Hellmers, co-administrators of the estate of Greg Allen Clapper.

Discussion

Rule 15(a), Fed.R.Civ.P., provides that once an answer is served, the court's grant of leave to amend a complaint "shall be freely given when justice so requires." In ruling on a motion to amend, the court's discretion to grant leave is limited where there is "undue delay, bad faith or dilatory motive on the part of the movant," and "undue prejudice to the opposing party ..., and futility of amendment...." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). See also Evans v. Syracuse City School District, 704 F.2d 44, 46 (2d Cir.1983).

a. The Plaintiff Hume

Addressing the plaintiff Hume's motion, she first seeks leave to add a paragraph alleging that Richard Hume's injuries were caused by the negligence of Hertz's lessee. (Amended complaint at para. 6). Since Rule 15(a) is often used to add an allegation thereby correcting an insufficiently stated claim, 6 C. Wright & A. Miller, Federal Practice and Procedure, Civil: Section 1474 at 379-80 (1971), leave to amend is granted. Hume's second request is to correct an improper citation to Connecticut's statute under which the owner-lessor of a car is liable to the same extent as the operator-lessee would have been liable if the operator had been the owner. Conn. Gen.Stat. Section 14-154a. Leave to properly cite that leasing statute is granted. (Amended complaint at para. 8).

The final request for amendment is to add a new plaintiff alleging a new cause of action. (Amended complaint at second count). Kim Hume, the decedent's wife and the administratrix of the decedent's estate, seeks to join this action as a plaintiff in her individual capacity "to add a related claim for loss of consortium." (Hume's Memorandum in Support at 3). Permissive joinder of plaintiffs under Rule 20(a), Fed.R.Civ.P., has been freely permitted in vehicular collision cases "when one or more of the plaintiffs were not present at the scene but suffered some type of injury as a result of the event." 7 C. Wright & A. Miller, Federal Practice and Procedure, Civil: Section 1656 at 281 (1972), citing cases including Smith v. Brown, 17 F.R.D. 39, 40 (M.D.Pa.1955) (where owner and operator of car, who seeks relief for damages including loss of wife's services and companionship, was a proper co-plaintiff in his wife's personal injury action).

Although Kim Hume's joinder poses no barrier to her proffered amendment, the apparent lack of remedy under Connecticut law for a loss of consortium claim in a wrongful death action poses a potentially insurmountable barrier. The Connecticut Supreme Court recognized that either spouse has a loss of consortium claim where the other spouse suffers personal injuries caused by a third party's negligence. Hopson v. St. Mary's Hospital, 176 Conn. 485, 496, 408 A.2d 260 (1979), overruling Marri v. Stamford Street R. Co., 84 Conn. 9, 78 A. 582 (1911) (where court denied husband's claim for loss of consortium). However, since Hopson, the Connecticut Supreme Court has not decided whether a surviving spouse may recover for the loss of consortium when the other spouse's injuries are fatal.

Whether the law of Connecticut provides Kim Hume a remedy for the loss of her husband's consortium when her husband's injuries are fatal is potentially dispositive of her proffered claim. If Kim Hume's injury is not actionable, then she has no claim to assert. However, if her injury is actionable, then to avoid barring her derivative consortium claim it must be tried before this court with her deceased husband's wrongful death action. Hopson v. St. Mary's Hospital, 176 Conn. at 494, 408 A.2d 260.

With no clear, controlling precedent in the Connecticut Supreme Court's decisions on this state law question, this court sitting in diversity must determine what this state's highest court would rule to be its law. Reeves v. American Broadcasting Companies, Inc., 719 F.2d 602, 605 (2d Cir.1983). Guidance is provided by two federal court decisions in this district denying a loss of consortium claim in a wrongful death action under Connecticut law. Bauer v. Johns-Manville Corp., 599 F.Supp. 33, 36 (D.Conn.1984) (Blumenfeld, J.) (where the court, in dismissing a wife's claim for loss of consortium resulting from her husband's death, did not dismiss that part of her loss of consortium claim caused by the decedent's injuries before his death); Reed v. Pacific Intermountain Express Company, 597 F.Supp. 42, 45 (D.Conn. 1984) (Zampano, J.).

When confronted with a loss of consortium claim in a wrongful death action, Senior United States District Judge Blumenfeld and Senior United States District Judge Zampano acknowledged the absence of controlling precedent by Connecticut's highest court. Bauer v. Johns-Manville Corp., 599 F.Supp. at 36; Reed v. Pacific Intermountain Express Company, 597 F.Supp. at 43. In the absence of controlling precedent, the senior judges analyzed the existing law and were persuaded that the Connecticut Supreme Court would not permit recovery for loss of consortium in a wrongful death action. Bauer, 599 F.Supp. at 36; Reed, 597 F.Supp. at 44 (although the court dismissed a claim for loss of consortium, it stated that the rationale underlying an impressive number of superior court decisions permitting a common law claim for loss of consortium "has appeal both in law and in logic."). Were this court to follow these two well-reasoned decisions, the amendment as proffered would fail to state a cause of action under Connecticut law. Leave to amend would be futile and, therefore, should be denied. S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir.1979) (no abuse of trial court's discretion to deny leave to amend a complaint that fails to state a cause of action).

To support her proffered amendment, the plaintiff Hume cites two Connecticut Superior Court decisions in which a surviving spouse was permitted to pursue a derivative but separate claim for loss of consortium in her deceased spouse's wrongful death action. Greca v. Caldarelli, 11 Conn. Law Trib. No. 29 at 18 (Conn.Super.Ct. Jan. 21, 1985) (where the court held that a loss of consortium claim "is derivative, not of the wrongful death statute, but of the deceased injured spouse's cause of action"); Hinde v. Butler, 35 Conn.Supp. 292, 296, 408 A.2d 668 (Super.Ct.1979) (damages for loss of consortium is within meaning of "just damages" under wrongful death statute). The plaintiff plainly overlooks the great unsettlement of Connecticut law regarding her claim.

The uncertainty of whether there is a remedy for loss of consortium under Connecticut's wrongful death statute or based on common law is unequivocally reflected by the decisions of federal courts and lower state courts. Connecticut superior court decisions have held that a spouse cannot recover for loss of consortium under the wrongful death statute. E.g., Leland v. Chawla, 39 Conn.Supp. 8, 11, 467 A.2d 439 (Super.Ct.1983); Demers v. Landry, 7 Conn.Law Trib. No. 9 at 15 (Conn.Super.Ct. Oct. 31, 1980). Contra Hinde v. Butler, 35 Conn.Supp. at 296, 408 A.2d 668. However, numerous state court decisions have held that a spouse can recover for loss of consortium in a wrongful death action where the claim is based on common law. E.g., Renzi v. Consolidated Rail Corp., 10 Conn.Law Trib. No. 15 at 18 (Super.Ct. Dec. 13, 1983); Panagos v. Wall, 6 Conn.Law Trib. No. 12 at 11 (Super.Ct. March 3, 1980). The environment of uncertainty surrounding this unresolved state law question is reflected in Reed v....