Reighley v. International Playtex, Inc.

• Decision Date: 18 March 1985
• Docket Number: Civ. A. No. 83-JM-1235.
• Citation: 604 F. Supp. 1078
• Parties: Stephen L. REIGHLEY, Individually and as Personal Representative of the Estate of Sally J. Reighley, and on Behalf of Matthew Reighley and Whitney Reighley, Minors, Plaintiff, v. INTERNATIONAL PLAYTEX, INC., a Delaware corporation, Defendant.
• Court: U.S. District Court — District of Colorado

604 F. Supp. 1078

Stephen L. REIGHLEY, Individually and as Personal Representative of the Estate of Sally J. Reighley, and on Behalf of Matthew Reighley and Whitney Reighley, Minors, Plaintiff, v. INTERNATIONAL PLAYTEX, INC., a Delaware corporation, Defendant.

Civ. A. No. 83-JM-1235.

United States District Court, D. Colorado.

March 18, 1985.

John A. Purvis and Heather Ryan, Hutchinson, Black, Hill, Buchanan & Cook, Boulder, Colo., for plaintiff.

Raymond J. Connell and Terry Christopher, Hall & Evans, Denver, Colo., Grace M. Healy, Angelo G. Savino and Glenn J. Pogust, Olwine, Connelly, Chase, O'Donnell & Weyher, New York City, for defendant.

ORDER

JOHN P. MOORE, District Judge.

This is a "toxic shock" case in which plaintiff, Stephen L. Reighley, sues individually and on behalf of his two minor children, Matthew and Whitney, for the injuries which resulted in the death of Sally Reighley, plaintiff's wife. Defendant, International Playtex, Inc., seeks partial summary judgment to dismiss the claims of the minor children from the suit on the grounds that: (1) Colo.Rev.Stat. § 13-21-201 (1973) vests the sole right to bring a wrongful death action in the surviving spouse; (2) only the personal representative of the deceased may bring a survival claim pursuant to Colo.Rev.Stat. § 13-20-101; and (3) minor children have no independent cause of action for the loss of consortium of a parent.

Jurisdiction is founded on 28 U.S.C. § 1332. The issues have been fully briefed and will be addressed seriatum.

Section 13-21-201 of the Colorado Revised Statutes (1973) codifies both an action for wrongful death and the scheme within which a claimant may seek redress. As provided in part, damages for wrongful death may be sued for and recovered:

(a) By the husband or wife of the deceased; or

(b) If there is no husband or wife, or she fails to sue within one year after such death, then by the heir or heirs of the deceased.

The statute gives standing only to those individuals specifically designated, Kling v. Phayer, 130 Colo. 158, 274 P.2d 97 (1954), and vests the primary, exclusive right in the surviving spouse unless suit is not brought within the year after death. Peck v. Taylor, 38 Colo.App. 90, 554 P.2d 698 (1976); Clint v. Stolworthy, 144 Colo. 597, 357 P.2d 649 (1960).

Defendant contends that the children's claim must be dismissed for lack of standing to bring an independent suit for the wrongful death of their mother. The plaintiff does not dispute the surviving spouse's exclusive right to bring an action for wrongful death within the first year but maintains that because the children have a proprietary interest in the judgment, their inclusion in the pleading is merely notification that suit is brought on their behalf.

Colo.Rev.Stat. § 13-21-201(2) provides in part:

If the action under this section is brought by the husband or wife of the deceased, the judgment obtained in said action shall be owned by such persons as are heirs at law of the deceased under the statutes of descent and distribution, and shall be divided by such heirs at law ... according to said statute of descent and distribution.

In Peck v. Taylor, 38 Colo.App. 90, 554 P.2d 698 (1976), a wrongful death action by a surviving spouse and daughter, the Colorado Court of Appeals stated: "since the purpose of the statute is to compensate those who sustain pecuniary injury by the loss of the life of a spouse or parent, retention here of both husband and daughter as parties plaintiff is proper." Id. 554 P.2d at 699.

Plaintiff, Stephen Reighley, has sued individually. Thus, in the light of Peck v. Taylor, the addition of the children as parties would appear to offend neither the statutory scheme or precedent. This is particularly true since the children have a statutory right to share in any judgment recovered.

In contrast, plaintiffs' third and fourth claims for relief (outrageous conduct and negligent infliction of emotional distress respectively), are survival claims authorized pursuant to Colo.Rev.Stat. § 13-20-101 (1973), (amended L. 75, p. 587, § 4). Because any recovery under a survival action inures to the estate and is independent of the limits of a wrongful death action, Hernandez v. United States, 383 F.Supp. 168, 173 (D.Colo.1974) only the personal representative of the decedent may bring such a suit. Espinoza v. O'Dell, 633 P.2d 455, 466 (Colo.1981). Consequently, Stephen Reighley as personal representative of Sally Reighley's estate is the sole proper plaintiff, and the children have no standing to assert these claims.

In seeking dismissal of the children's claim for loss of consortium, defendant raises an issue of first impression in this jurisdiction. Neither party initially requested certification to the Colorado Supreme Court pursuant to Colorado Appellate Rule 21, nor expressed objection to my resolution of the question. Since the use of certification rests in the sound discretion of the federal court, Lehman Brothers v. Schein, 416 U.S. 386, 389, 94 S.Ct. 1741, 1743, 40 L.Ed.2d 215 (1974), I will address the issue to avoid further delay and to preserve the present discovery momentum.

In so doing, I am mindful that where no controlling Colorado law has either been found or presented, it is the duty of the federal court to attempt to construe the law of the state of Colorado in the manner in which the state's Supreme Court would, if faced with the same facts and issue. City of Aurora, Colorado v. Bechtel Corp., 599 F.2d 382 (10th Cir.1979); Burgert v. Tietjens, 499 F.2d 1 (10th Cir. 1974) (citations omitted). In examination of the question the decisions of other courts, state and federal, must be considered along with the general weight and trend of authority. In re Birdseye, 548 F.2d 321 (10th Cir.1977).

The precise issue presented is whether a minor child may maintain an independent cause of action against a tortfeasor for the loss of society and companionship of a parent. While the term "loss of consortium" has been attached to the children's claim, the broader term, "loss of society and companionship," is equally appropriate. Use of the latter term avoids the narrower construction connoting this right derives primarily from the sexual relationship incident to marriage. Indeed, loss of consortium is "a useful though ambiguous term having a rather old-fashioned ring today." H. Clark, Domestic Relations § 10.1 (1968). While companionship may include sexual relations See, e.g. Prosser, Torts § 125 at 889 (4th ed. 1971) as cited in CJI-Civ.2d 6:7 (1980), courts have continued to regard loss of consortium to embrace all of those values—tangible and intangible—inherent in the family relationship. In his treatise, Clark (supra.) asserts that the term loss of consortium is equally appropriate in reference to the parent-child relationship to summarize "the multitude of rights and duties binding parents to their children and vice versa." Clark at § 10.1 (1968).

Thus, in the context of the parent-child relationship, the term consortium encompasses a complex of rights—care, comfort, guidance, society, companionship—which is imbued from the earliest stages of bonding infant to parent. Indeed, the family unit has been recognized by the Supreme Court to bear constitutionally protected aspects. See, e.g. Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). The Tenth Circuit has recognized certain family interests as liberty interests predating both the federal Constitution and state laws. Wise v. Bravo, 666 F.2d 1328 (10th Cir.1981).

In addition to these constitutional protections, Colorado tort law has evolved by legislation and judicial decision to impose duties and liabilities on individual conduct interfering with the family relationship. Only recently, however, has a recovery for loss of consortium, historically rooted in the doctrine of paterfamilias, been made available to a wife as well as a husband. Colo.Rev.Stat. § 14-2-209 (1973); Crouch v. West, 29 Colo.App. 72, 477 P.2d 805 (1970). A parent's interest to be free from tortious conduct harming his spouse or child is equally that of the child who looks to his parents for care, security, nurture and guidance. If, indeed, there is a right or interest in the family relationship to be protected for a husband and wife, that right must be no less sanctioned by the courts for the children of that relationship.

Contrary to the defendant's contention that the courts have repeatedly denied a child's independent cause of action for loss of consortium, there is a nascent but growing trend to recognize and expand this cause of action.¹ In fact, the only present controversy appears to surround the issue of whether the cause of action may also be allowed when the parent is seriously injured by the negligence of another. Several jurisdictions have held that it would be anomalous to sustain a recovery when the parent dies but to deny one when the parent lies comatose or is seriously injured. See, e.g., Rosen v. Zorzos, 449 So.2d 359 (Fla.App. 5 Dist.1984); Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984); Ueland v. Reynolds Metals Co., 103 Wash.2d 131, 691 P.2d 190 (1984); Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad Co., 335 N.W.2d 148 (Iowa 1983) (reversing Weitl because Iowa Code § 613.15 already included parental consortium damages but upholding its rationale); Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981); Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980).

Those jurisdictions that have rejected a child's claims for loss of consortium have done so for a variety of reasons. In Salin v. Kloempken, 322 N.W.2d 736 (Minn. 1982), the court was persuaded that increased insurance costs, public policy and the burden...