Lewis v. Hughes Helicopter, Inc.

• Citation: 205 Cal.App.3d 384,220 Cal.Rptr. 615
• Court: California Court of Appeals
• Decision Date: 06 December 1985
• Parties: Previously published at 205 Cal.App.3d 384 205 Cal.App.3d 384 Jinella LEWIS, Plaintiff and Appellant, v. HUGHES HELICOPTER, INC., et al., Defendants and Respondents. Civ. 24375.

Page 615

220 Cal.Rptr. 615

Previously published at 205 Cal.App.3d 384

205 Cal.App.3d 384

Jinella LEWIS, Plaintiff and Appellant, v. HUGHES HELICOPTER, INC., et al., Defendants and Respondents.

Civ. 24375.

Court of Appeal, Third District, California.

Dec. 6, 1985.

Review Granted Feb. 20, 1986.

Friedman, Collard, Poswall & Virga and Allan J. Owen, Sacramento, for plaintiff and appellant.

Fisher & Hurst, Stephen C. Kenney, Roland R. Stevens, and Mark T. Hansen, San Francisco, for defendants and respondents Co. of Sacramento, etc.

Lillick, McHose & Charles, Stephen C. Johnson and William L. Robinson, San Francisco, for defendant and respondent Big Valley Aviation, Inc.

Kern & Wooley and Richard R. Roland, Los Angeles, for defendant and respondent Hughes Helicopter, Inc.

CARR, Associate Justice.

In this appeal by Jinella Lewis, the sole question presented is whether an unmarried cohabitant can state a cause of action for loss of consortium when the other cohabitant is injured by a third party. ¹

FACTUAL AND PROCEDURAL BACKGROUND

On September 13, 1982, Theron Lewis was injured in a helicopter crash. He and plaintiff had been living together for approximately three years ² and considered themselves engaged. ³ They were married approximately two weeks after the accident, on September 30, 1982.

Theron filed a complaint against defendants for the injuries he received. Jinella joined him in the complaint alleging that "at all times herein mentioned" Theron and Jinella were husband and wife. She then alleged a cause of action for loss of consortium of Theron. Upon learning Jinella and Theron were not married until after the accident, defendant Avco Corporation filed a motion for summary judgment contending, inter alia, that an unmarried cohabitant cannot state a cause of action for loss of consortium. The remaining defendants joined Avco's motion.

Plaintiff, citing Butcher v. Superior Court (1983) 139 Cal.App.3d 58, 188 Cal.Rptr. 503, urged that partners in a "stable and significant relationship" may assert a cause of action for loss of consortium. The trial court granted defendants' motions for summary judgment as to Jinella Lewis and this appeal followed.

DISCUSSION

The purpose of a motion for summary judgment is to determine if there are any triable issues of material fact and whether the moving party is entitled to judgment as a matter of law. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874, 191 Cal.Rptr. 619, 663 P.2d 177.) Because summary judgment is a drastic procedure all doubts should be resolved in favor of the party opposing the motion. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 183, 203 Cal.Rptr. 626, 681 P.2d 893.) However, where, as here, the facts are not in dispute, summary judgment is properly granted when dispositive issues of law are determined in favor of the moving party. (Allis-Chalmers Corp. v. City of Oxnard (1981) 126 Cal.App.3d 814, 818, 179 Cal.Rptr.

                159.)   The issue before us, as stated, is whether an unmarried cohabitant may maintain a cause of action for loss of consortium
                

In Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669, the California Supreme Court first recognized a cause of action for loss of consortium, holding that each spouse in a marital relationship has the right to sue for loss of consortium caused by a negligent or intentional injury to the other spouse by a third party. The court rejected as outdated earlier arguments denying such a cause of action, noting the damages to the partner of an injured spouse are real and direct, causing emotional and mental anguish. (P. 400, 115 Cal.Rptr. 765, 525 P.2d 669.) The court noted consortium included not only the loss of support or services, but also " 'love, companionship, affection, society, sexual relations, solace and more.' " (Pp. 404-405, 115 Cal.Rptr. 765, 525 P.2d 669.) With Rodriguez, California joined the majority of states in recognizing a cause of action for loss of consortium. (Pp. 389-393, 115 Cal.Rptr. 765, 525 P.2d 669; see generally Prosser, Torts (5th ed. 1984) § 125, pp. 931-939.)

Attempts to expand this cause of action to other relationships have been unsuccessful. In Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858, the court held that Rodriguez [supra] ... does not compel the conclusion that foreseeable injury to a legally recognized relationship necessarily postulates a cause of action; instead it clearly warns that social policy must at some point intervene to delimit liability." (P. 446, 138 Cal.Rptr. 302, 563 P.2d 858.) In Borer and a companion case, Baxter v. Superior Court (1977) 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871, the court refused to extend a cause of action for loss of consortium to the parent-child relationship.

After Borer, courts have been confronted with the issue of whether individuals in "quasi-marital relationships" at the time of injury, i.e., living together or perhaps engaged to be married, may assert a cause of action for loss of consortium. In the first such case, Tong v. Jocson (1977) 76 Cal.App.3d 603, 142 Cal.Rptr. 726, the court affirmed an order of judgment granting summary judgment to the defendant on a cause of action for loss of consortium when the accident occurred three months after the couple began living together but one month before they were married. Citing to both Rodriguez, supra, and Borer, supra, the court stated a cause of action for loss of consortium must be " 'narrowly circumscribed' ", and lines must be drawn on the basis of social policy to limit liability. (P. 605, 142 Cal.Rptr. 726.) Because the couple was not married at the time of the accident, the court held a cause of action for loss of consortium could not be maintained.

In Etienne v. DKM Enterprises, Inc. (1982) 136 Cal.App.3d 487, 186 Cal.Rptr. 321, this court briefly addressed the same issue. In Etienne, the parties attempted to prove they had a valid common-law marriage under the laws of Texas, thereby enabling one of the partners to assert a cause of action for loss of consortium. Before analyzing whether the parties met the Texas common-law marriage requirements, we noted, "Under the circumstances of this case, and as tacitly assumed by the parties, lawful marriage ... is an essential element of [a] cause of action ... for loss of consortium (Tong v. Jocson (1977) 76 Cal.App.3d 603, 605 )." (136 Cal.App.3d at p. 489, 186 Cal.Rptr. 321.) Plaintiff contends we are not bound by our decision in Etienne because Etienne did not fully analyze whether marriage was in fact a requirement for a loss of consortium cause of action. After analysis and further reflection we remain committed to the view that a legal valid marriage is a prerequisite to a cause of action for loss of consortium.

With three exceptions, courts throughout the United States have refused to extend a cause of action for loss of consortium to Two of the three cases holding otherwise are of dubious precedential value. In Sutherland v. Auch Inter-Borough Transit Co. (E.D.Pa.1973) 366 F.Supp. 127, the federal court permitted a cause of action for loss of consortium when the accident preceded the parties' marriage by one month. The court reached its decision based on a belief that Pennsylvania state courts would permit such an action. (P. 134.) No subsequent Pennsylvania cases have done so (Curry v. Caterpiller Tractor Co. (E.D.Pa.1984) 577 F.Supp. 991, 993-994), and Sutherland has been severely criticized for its failure to follow earlier state court decisions. (Sostock v. Reiss, supra, 92 Ill.App.3d 200 at pp. 202-204, 47 Ill.Dec. at pp. 782-783, 415 N.E.2d at pp. 1095-1096; Sawyer v. Bailey, supra, 413 A.2d at p. 167.)

unmarried cohabitants or engaged couples. Reasons for this viewpoint have most commonly been expressed in terms of public and social policy: liability must be somehow limited and marriage, an institution favored by society, provides a clear touchstone for such a purpose. (E.g., Tremblay v. Carter (Fla.App.1980) 390 So.2d 816, 818; Sostock v. Reiss (1980) 92 Ill.App.3d 200, 47 Ill.Dec. 781, 785, 415 N.E.2d 1094, 1098; Laws v. Griep (Iowa 1983) 332 N.W.2d 339, 341; Haas v. Lewis (1982) 8 Ohio App.3d 136, 456 N.E.2d 512; Sawyer v. Bailey (Me.Sup.Ct.1980) 413 A.2d 165, 168; Gillespie-Linton v. Miles (1984) 58 Md.App. 484, 473 A.2d 947, 953.)

In Bulloch v. United States (D.N.J.1980) 487 F.Supp. 1078, the federal court predicted New Jersey state courts would permit a cause of action for loss of consortium for an unmarried couple. They were wrong. In two later cases, New Jersey courts declined to follow Bulloch and found marriage to be an essential element of a claim of loss of consortium. (Leonardis v. Morton Chemical Co. (1982) 184 N.J.Super. 10, 445 A.2d 45, 49; Childers v. Shannon (1982) 183 N.J.Super. 591, 444 A.2d 1141, 1142.)

The case of Butcher v. Superior Court (1983) 139 Cal.App.3d 58, 188 Cal.Rptr. 503, permitting an unmarried cohibitant to assert a cause of action for loss of consortium, sits in "splendid isolation." (Ledger v. Tippitt (1985) 164 Cal.App.3d 625, 635-636, 210 Cal.Rptr. 814.) In Butcher, Paul Forte was injured when he was struck by an automobile. His partner, Cindy Forte, sued for loss of consortium. At the time of the accident Paul and Cindy had lived together for 11 1/2 years, had two children, filed joint tax returns, and maintained joint bank accounts. Cindy used Paul's name and considered their relationship to be a "common-law marriage."

In permitting Cindy to maintain her cause of action, The Butcher court acknowledged the lack of precedent for its decision but cited Rodriguez, supra, and observed that the courts have the obligation and opportunity to change and expand the common law when new conditions and needs render the application of the old rules unjust or inequitable. (139 Cal.App.3d at pp. 62-63, 65, 188 Cal.Rptr. 503.) The court noted Rodriguez rejected...