Mueller v. Tepler

• Decision Date: 16 July 2014
• Docket Number: No. 18939.,18939.
• Court: Connecticut Supreme Court
• Parties: Margaret A. MUELLER v. Isidore TEPLER et al.

312 Conn. 631

95 A.3d 1011

Margaret A. MUELLER

v.Isidore TEPLER et al.

No. 18939.

Supreme Court of Connecticut.

Argued Dec. 3, 2013.

Decided July 16, 2014.^*

Sean K. McElligott, with whom, on the brief, was Joshua D. Koskoff, Bridgeport, for the appellant (plaintiff Charlotte Stacey).

Eric J. Stockman, with whom was Simon I. Allentuch, New Haven, for the appellees (defendant Iris Wertheim et al.).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, and ESPINOSA, Js.

ROGERS, C.J.

The issue that we must resolve in this certified appeal is whether a person who was prevented by state law from marrying or entering into a civil union with her domestic partner at the time that tortious conduct occurred, but who can establish that the couple would have been married if the marriage had not been barred, may maintain a loss of consortium claim arising from the tortious conduct. The plaintiffs, Margaret A. Mueller ¹ and Charlotte Stacey, brought this medical malpractice action against the defendants Iris Wertheim and Iris Wertheim, M.D., LLC,² seeking damages for personal injuries suffered by Mueller as a result of the defendants' negligence, and for Stacey's resulting loss of consortium. The defendants filed a motion to strike the loss of consortium claims on the ground that the plaintiffs were not married or in a civil union before or during the dates of the negligent acts. The trial court granted the defendants' motion and rendered judgment for them on those claims. Stacey appealed to the Appellate Court, which affirmed the judgment of the trial court on the narrower ground that the plaintiffs' complaint was legally insufficient because they had not alleged that they would have married or entered into a civil union before the dates of the defendants' negligent acts if they had not been barred from doing so under the laws of this state. Mueller v. Tepler, 132 Conn.App. 742, 748–49, 33 A.3d 814 (2011). We then granted Stacey's petition for certification to appeal to this court. Mueller v. Tepler, 304 Conn. 909, 39 A.3d 1120 (2012). The issues that we must resolve on appeal are: (1) Did the Appellate Court properly affirm the trial court's judgment in favor of the defendants on grounds distinct from those that the trial court considered when granting the motion instead of remanding the case to the trial court with direction to provide Stacey with an opportunity to amend her complaint?; and (2) If the answer to the first question is no, and Stacey amends her complaint on remand to allege that she and Mueller would have been married when the underlying tort occurred if they had not been barred from doing so under the law of this state, should the trial court grant the defendants' motion to strike Stacey's loss of consortium claims on the ground that the plaintiffs were not married or in a civil union at that time? ³ We answer both questions in the negative.

The opinion of the Appellate Court sets forth the following facts alleged by the plaintiffs in their third amended complaint, and procedural history. “In August, 2001, Mueller was referred to Wertheim after testing by her gynecologist indicated that she had cancer. In October, 2001, Wertheim performed surgery to remove several cancerous tumors from Mueller. These tumors were examined by a pathologist, who identified the cancer as pseudomyxoma peritonei, a cancer of the appendix. Wertheim either failed to review the pathology report or misinterpreted its findings. As a result of this negligence, Mueller was mistakenly diagnosed with ovarian cancer. Mueller remained under the care of Wertheim until March 5, 2004. Although the error was discovered in April, 2005, Mueller's cancer had progressed to a stage where some of the tumors no longer could be removed surgically.

“On January 10, 2006, Mueller commenced the present action against the defendants seeking recovery for medical malpractice. The third amended complaint, dated November 19, 2007, alleges, in relevant part, that the defendants are liable to [Stacey] for loss of consortium. In support of these claims, the amended complaint contains the following allegations regarding [Stacey's] relationship with Mueller: (1) ‘At all times since June, 1985, [Stacey and Mueller] have been domestic partners and have lived together as partners for the past twenty-one years'; (2) ‘On or about November 12, 2005, [Stacey and Mueller] were joined in a civil union under Connecticut's civil union statute’; and (3) ‘Since 1985, [Stacey and Mueller] ... have supported each other both financially and emotionally.’ ” (Footnotes omitted.) Mueller v. Tepler, supra, 132 Conn.App. at 744–45, 33 A.3d 814.

“On December 6, 2007, the defendants filed a motion to strike [Stacey's] loss of consortium claims. In this motion, the defendants argued that [Stacey] and Mueller ‘had not entered into a legal civil union/marriage prior to or during the dates of the alleged negligent acts [and therefore Stacey] cannot recover for loss of consortium....’ [Stacey] filed an objection to this motion [in which she] argued that ‘because civil unions were unavailable at the time ... Mueller was injured, [the complaint] states a valid claim for loss of consortium against [the] defendants.’ ⁴ “On February 11, 2008, the trial court granted the defendants' motion to strike, stating: ‘I simply feel that the defendants are quite correct in pointing out that a consortium claim is not sustainable by people who are not either in a legal marriage or in a legal civil union at the time of the wrong.’ ” Id., at 745–46, 33 A.3d 814. Thereafter, the trial court rendered judgment for the defendants on the loss of consortium claims. The jury ultimately returned a verdict in favor of Mueller's estate on the claims of medical malpractice. Id., at 746, 33 A.3d 814.

Stacey then appealed to the Appellate Court, claiming that she was entitled to damages for loss of consortium because, “although she was not married to Mueller before the defendants' negligent actions occurred, she and Mueller would have formalized their relationship, but for the unconstitutional deprivation of their right to do so under the provisions of state law existing at that time.” Id., at 746, 33 A.3d 814. The defendants contended that the complaint was defective because the plaintiffs had not made the allegation that they were “married or had entered into a civil union ... or that [they] wanted to ... before [Mueller's] injury in 2001.” ⁵ The Appellate Court agreed with the defendants, concluding that, even if it “were to assume that a complaint that includes [an allegation that the plaintiffs would have been married but for the unconstitutional deprivation of their right to do so] states a legally sufficient claim for loss of consortium, the plaintiff[s] did not plead this fact in the third amended complaint.” Id., at 748, 33 A.3d 814. The Appellate Court concluded that, in the absence of such an allegation, the plaintiffs' situation was no different than that of an opposite sex couple who were not married at the time that the underlying tort occurred, for whom a cause of action for loss of consortium is not available. See Gurliacci v. Mayer, 218 Conn. 531, 564, 590 A.2d 914 (1991) (claim for loss of spousal consortium cannot be maintained when plaintiff was not married to victim of underlying tort when tort occurred). Accordingly, the Appellate Court affirmed the judgment of the trial court on this alternative ground. This certified appeal followed.

I

Stacey's first claim on appeal is that the Appellate Court improperly affirmed the judgment of the trial court in favor of the defendants on an alternative ground that the defendants had not raised in the trial court. Specifically, Stacey claims that: (1) the Appellate Court improperly reviewed the defendants' unpreserved claim that the complaint's loss of consortium claims were legally insufficient because the complaint did not allege that the plaintiffs would have been married or entered into a civil union at the time of the tortious conduct if they had not been barred from doing so under the law of this state; (2) even if the unpreserved claim was reviewable, the Appellate Court improperly determined that the motion to strike should be granted on that alternative ground; and (3) even if the Appellate Court properly reviewed and resolved the defendants' unpreserved claim, it improperly affirmed the judgment of the trial court in favor the defendants instead of remanding the case to the trial court with direction to provide Stacey with an opportunity to replead. We conclude that Stacey's first and second claims are not reviewable because she failed to object to review of the defendants' unpreserved claim in the Appellate Court. With respect to Stacey's third claim that the Appellate Court improperly affirmed the judgment of the trial court in favor of the defendants on this alternative ground instead of remanding the case to the trial court, we conclude that the Appellate Court's ruling is reversible under the plain error doctrine.

The following additional procedural history is relevant to our resolution of this issue. In the plaintiffs' objection to the defendants' motion to strike the loss of consortium claims, they contended that the rationale of the holding in Gurliacci that “the formal marriage relation forms the necessary touchstone to determine the strength of commitment between the two individuals which gives rise to the existence of consortium between them in the first instance”; (internal quotation marks omitted) Gurliacci v. Mayer, supra, 218 Conn. at 564, 590 A.2d 914; “only has logical force ... if the couple was capable of entering into a ‘formal marriage relation’ prior to the injury.” The plaintiffs further contended that “[t]he absence of a civil union between them prior to the date of the injury was simply a function of the legal impossibility and does not in any way bear upon the strength of their commitment.” ⁶ During oral...