Weitl v. Moes

• Decision Date: 21 October 1981
• Docket Number: No. 64843,64843
• Citation: 311 N.W.2d 259
• Parties: Linda WEITL, Gregory B. Weitl, and Roberta Bennett, Robert Bennett, Jr., & Gregory E. Weitl, Jr., by their mother and next friend, Linda Weitl, and Gregory Weitl as Administrator of the Estate of Kelly Weitl, Appellants, v. John R. MOES, John Ramsey, Albert M. Dolan and St. Francis Hospital of Franciscan Sisters, Appellees.
• Court: Iowa Supreme Court

Page 259

311 N.W.2d 259

Linda WEITL, Gregory B. Weitl, and Roberta Bennett, Robert Bennett, Jr., & Gregory E. Weitl, Jr., by their mother and next friend, Linda Weitl, and Gregory Weitl as Administrator of the Estate of Kelly Weitl, Appellants, v. John R. MOES, John Ramsey, Albert M. Dolan and St. Francis Hospital of Franciscan Sisters, Appellees.

No. 64843.

Supreme Court of Iowa.

Oct. 21, 1981.

Jim D. DeKoster of Swisher & Cohrt, Waterloo, and Timothy S. White, Cedar Rapids, for appellants.

William M. Tucker and Richard M. Tucker of Phelan, Tucker, Boyle & Mullen, Iowa City, Walter C. Schroeder of Winston, Schroeder & Reuben, Mason City, Edward J. Gallagher, Jr., of Gallagher, Langlas & Gallagher, P. C., Waterloo, and James E. Walsh, Jr., of Clark, Butler & Walsh, Waterloo, for appellees.

Nick Critelli of Critelli & Foxhoven, P. C., Des Moines, for amicus curiae Association of Trial Lawyers of Iowa.

Considered en banc.

ALLBEE, Justice.

Two important questions are presented by this appeal: (1) whether a child may maintain an action for loss of parental society and companionship when the parent is injured by the tortious act of a third party, and (2) whether a wrongful death action lies in behalf of a fetus which is stillborn due to a tortious injury to the mother. Trial court, in recognition of prior precedent, found that neither cause of action is cognizable in Iowa, and accordingly dismissed two counts of plaintiffs' petition. We affirm the dismissal of the wrongful death claim, but reinstate the action for loss of parental society and companionship.

The allegations of plaintiffs' petition, which we accept as true for purposes of this appeal, may be summarized as follows. Linda Weitl, a mother of three children, was in the late stages of a pregnancy when she was treated for bronchitis and hyperventilation at defendant hospital in November 1977. As a result of improper diagnosis and treatment by defendant doctors and hospital, Linda experienced respiratory and cardiac arrest. This incident produced severe, permanent brain damage and permanent blindness in Linda, and also caused her fetus to be stillborn. The fetus, which has been given the name Kelly, was very nearly full term and was capable of being born alive at the time of the incident which produced Linda's injury.

In Count I of plaintiffs' petition, Linda seeks damages for her own injuries and for loss of her services and support to her children and husband. Her husband, Gregory Weitl, asks for damages for loss of consortium and for Linda's medical expenses in Count II. Defendants did not request dismissal of those counts.

Linda's three minor children seek recovery in Count III for "loss of family relationship, loss of companionship and association, the care, attention, kindness, maternal guidance, comfort and solace of their mother's society." On behalf of the fetus's purported estate, Gregory sues in Count IV for the wrongful death of the stillborn fetus. On motion of some defendants, trial court dismissed Counts III and IV. This appeal followed.

I. Appellate jurisdiction.

Before considering the merits of this appeal, we must address a jurisdictional issue. There being some question as to whether this appeal is from a final judgment, as required by Iowa R.App.P. 1(a), we asked the parties to submit briefs on that issue.

The parties argue opposing views as to the finality of trial court's order dismissing two of four counts of the petition. See Iowa R.App.P. 1(a) and (b). But even assuming that the order was not a final judgment, we have determined that we may, and should, grant an appeal in this case pursuant to Iowa R.App.P. 1(c). That rule permits us to treat the papers upon which the appeal is taken as the equivalent of an application for interlocutory appeal under Iowa R.App.P. 2. Rule 2, in turn, allows us to entertain an appeal from an interlocutory ruling upon finding that the ruling "involves substantial rights and will materially affect the final decision and that a determination of its correctness before trial on the merits will better serve the interests of justice." We find that those criteria are met in the present case.

II. Child's action for loss of parental consortium.

A.

As stated at the outset, the first important issue presented by this appeal is whether this court should recognize an independent right of action in a child to recover for the loss of society and companionship of a parent who has been tortiously injured by a third party. Before addressing the parties' specific arguments, it will be helpful to examine the background and current status of this asserted cause of action in Iowa and elsewhere.

Until recently, a child's cause of action for loss of parental consortium was unknown to the common law. See Hankins v. Derby, 211 N.W.2d 581, 582 (Iowa 1973). Within the last two years, however, two jurisdictions have recognized such a cause of action. See Ferriter v. Daniel O'Connell's Sons, Inc., --- Mass. ---, 413 N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981). All other jurisdictions which have considered the issue have declined to so extend the common law. See generally Annot., 69 A.L.R.3d 528 (1976 & Supp.1981).

In Hankins v. Derby, this court similarly declined to recognize such an independent cause of action in the child. 211 N.W.2d at 585-86. While acknowledging the importance of a child's interest in maintaining viable family relationships, and conceding that the asserted cause of action carried "great emotional appeal," the Hankins majority declared that recognition of the child's right of recovery was more properly an issue for legislative determination. 211 N.W.2d at 582, 585. In addition, the court stated that it was "inhibited" from recognizing such a cause of action by section 613.15, The Code 1971. 211 N.W.2d at 585. That statute, which remains unchanged in the current Code, provides:

Injury or death of spouse measure of recovery. In any action for damages because of the wrongful or negligent injury or death of a woman, there shall be no disabilities or restrictions, and recovery may be had on account thereof in the same manner as in cases of damage because of the wrongful or negligent injury or death of a man. In addition she, or her administrator for her estate, may recover for physician's services, nursing and hospital expense, and in the case of both women and men, such person, or the appropriate administrator, may recover the value of services and support as spouse or parent, or both, as the case may be, in such sum as the jury deems proper; provided, however, recovery for these elements of damage may not be had by the spouse and children, as such, of any person who, or whose administrator, is entitled to recover same.

The Hankins majority concluded that the quoted statutory provision "clearly permits recovery for all of the elements of damages asserted by plaintiff" ¹ and that "(i)t limits procedurally only the manner in which and the proper party by whom, the cause of action may be maintained...." 211 N.W.2d at 586. Thus, Hankins in fact determined that section 613.15 provided a statutory means of recovering damages for a child's loss of parental consortium, but also held that, by operation of the statute, any claim for such damages on the child's behalf must be brought by the injured parent or his estate.

B.

Plaintiffs advance two principal arguments in support of their contention that trial court erred in dismissing the claim of Linda's children for loss of parental consortium. First, they urge that section 613.15, as interpreted in Hankins, be declared unconstitutional. Plaintiffs assert that the statute as interpreted violates the Equal Protection Clause of the fourteenth amendment by denying a child's independent cause of action for parental consortium, while Iowa law otherwise permits a parent's separate action for loss of a child's consortium, see Iowa R.Civ.P. 8, as well as an independent action for loss of spousal consortium, see Fuller v. Buhrow, 292 N.W.2d 672, 674-76 (Iowa 1980); Acuff v. Schmit, 248 Iowa 272, 78 N.W.2d 480 (1956). Alternatively, plaintiffs ask this court to abandon the Hankins interpretation of section 613.15 and to recognize a common law cause of action by a child for loss of parental consortium due to the tortious injury of his parent.

Because plaintiffs challenge the constitutionality of section 613.15 as interpreted in Hankins, it is necessary to reexamine that decision to determine whether it correctly interpreted the statute to bar a child's independent recovery for loss of parental consortium. We note that the perceived "inhibiting" effect of section 613.15 was not the sole basis for the Hankins decision, and that no constitutional challenge to the statute was presented in that case. Thus, a closer examination of the Hankins interpretation of section 613.15 is appropriate at this time.

We find that several difficulties inhere in the Hankins view of the statute. First, section 613.15 provides that the injured person "may recover the value of services and support as spouse or parent, or both," and that "recovery for these elements of damage may not be had by the spouse and children, as such, of any person who ... is entitled to recover same." (Emphasis added.) Because the statute is worded so as to apply equally to spouses and children, it must bar a spouse's independent action for consortium if it indeed bars the child's action. However, independent claims for spousal consortium are regularly brought in Iowa by the noninjured spouse, as evidenced even by Gregory's claim in the case at bar. See, e. g., Fuller, 292 N.W.2d at 674-76; Acuff, 248 Iowa 272, 78 N.W.2d 480. It has never been held that section 613.15 bars those claims.

A second difficulty is that even though Hankins states that section 613.15 covers "all of the elements of damages asserted by plaintiff" in that case i. e., loss of companionship, society, care,...