North Pacific Insurance v. Stucky , 377 Mont. 25 ( 2014 )

November 13 2014
OP 14-0016
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 299
NORTH PACIFIC INSURANCE
COMPANY,
Plaintiff and Defender,
v.
CALVIN STUCKY, RENEE STUCKY,
SADEE STUCKY, and CALLIE JO STUCKY,
Defendants and Plaintiffs.
ORIGINAL PROCEEDING: Certified Question, United States District Court
District of Montana, Helena Division
Honorable Dana L. Christensen, Chief District Judge
COUNSEL OF RECORD:
For Plaintiff:
Jesse Beaudette, John E. Bohyer, Bohyer, Erickson, Beaudette & Tranel,
P.C.; Missoula, Montana
For Defendants:
Lori A. Harshbarger, JD Law Firm, P.C.; Whitehall, Montana
For Amicus Montana Trial Lawyers Association:
Jonathan McDonald, Hunt & McDonald Law Firm; Helena, Montana
Anders Blewett, Hoyt & Blewett, PLLC; Great Falls, Montana
Submitted on Briefs: July 23, 2014
Decided: November 13, 2014
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 The United States District Court for the District of Montana, Missoula Division,
the Honorable Dana L. Christensen presiding, has certified the following questions to this
Court:
1. Does Montana law recognize a claim for loss of consortium by the adult child
of an injured parent?
2. If Montana recognizes a claim for loss of consortium by the adult child of an
injured parent, what evidentiary standard must the plaintiff meet in order to assert
such a claim?
¶2 We accepted the certified questions and now answer that Montana law recognizes
a claim for loss of consortium by the adult child of an injured parent, and that to assert
such a claim, the plaintiff must show that (1) a third party tortiously caused the parent to
suffer a serious, permanent and disabling mental or physical injury compensable under
Montana law, and (2) the parent’s ultimate condition of mental or physical impairment is
so overwhelming and severe that it has caused the parent-child relationship to be
destroyed or nearly destroyed. Relevant to establishing the plaintiff’s cause of action,
and to a jury’s determination of damages, will be evidence of the severity of injury to the
parent; the actual effect that the parent’s injury has had on the relationship and is likely to
have in the future; the child’s age; the nature of the child’s relationship with the parent;
and the child’s emotional, physical and geographic characteristics.
2
PROCEDURAL AND FACTUAL BACKGROUND
¶3 The parties have stipulated to the following pertinent facts, set forth in the U.S.
District Court’s certification order.
¶4 On August 12, 2009, Calvin Stucky (Calvin) was injured in a motor vehicle
accident in Powell County on Highway 141, when a vehicle headed in the opposite
direction crossed the center line and collided head-on with his Ford truck. As a result of
this collision, he sustained significant injuries with extensive physical and emotional
effects. At the time of the collision, his daughters, Sadee and Callie Jo, were eighteen
and fifteen, respectively.
¶5 North Pacific Insurance Company (NPIC) issued a Commercial Auto Policy (the
Policy) to Earl Stucky and Glenna Stucky. The policy period at issue was from October
24, 2008, to October 24, 2009. The Policy names Calvin and his wife, Renee Stucky
(Renee), as insureds under the Policy. Calvin purchased a 1980 Ford truck on or about
May 27, 2009. NPIC alleges that the 1980 Ford truck was never added to the Policy for
insurance coverage. Calvin alleges that he did request the 1980 Ford truck to be added to
the Policy.
¶6 The Policy provides Under Insured Motorist (UIM) coverage in pertinent part as
follows:
We will pay all sums the “insured” is legally entitled to recover as
compensatory damages from the owner or driver of an “underinsured motor
vehicle.” The damages must result from “bodily injury” sustained by the
“insured” caused by an “accident.” The owner’s or driver’s liability for
these damages must result from the ownership, maintenance, or use of the
“underinsured motor vehicle.”
3
The Policy provides that an “insured” includes any “family members” of an individual
who is a named insured. A “family member” is defined as “a person related to an
individual Named Insured by blood, marriage or adoption who is a resident of such
Named Insured’s household, including a ward or foster child.” Renee, Sadee and Callie
Jo allege they are insureds under the Policy and are entitled to UIM benefits as a result of
Calvin’s accident.
¶7 Calvin was the only person occupying the 1980 Ford truck when the accident took
place. His injuries from the accident are extensive and include: Traumatic brain injury
(TBI)/closed head injury with executive level deficits and emotional dyscontrol; left
acetabular fracture, sacroiliac joint disruption, S/P ORIF (open reduction internal
fixation); left hip sciatic nerve entrapment secondary to left acetabular fracture and
sacroiliac joint disruption; T10 vertebral fracture, S/P T8-T12 fixation; left hip extensive
heterotopic ossification requiring surgical excision; mood disorder; loss of cognitive
function; left lower extremity impairments; personality changes secondary to TBI;
memory loss secondary to TBI; word finding difficulty secondary to TBI; headaches
secondary to TBI; insomnia secondary to TBI; balance dysfunction secondary to
orthopedic dysfunction; anger issues secondary to TBI; depression secondary to TBI;
Bipolar I disorder secondary to TBI; chronic pain/hip arthralgias supported by chronic
left hip pain secondary to HO; facial and orbital fractures; left hypertropia and esotropia
due to motor vehicle accident; S/P eye surgery (right inferior rectus recession, right
medial rectus recession); right shoulder posterior labral tear; likely chronic right shoulder
4
pain and possible functional limitations. He underwent multiple surgeries as a result of
the accident.
¶8 Although Calvin has made improvements, he still suffers from difficulty with
word finding; memory loss; balance dysfunction; visual problems; mood fluctuations;
angry outbursts; physical weakness; limited ability to move; depression; agitation from
over-stimulation; physical violence toward family members; dislike for people; asocial
behavior; hip, back and leg pain; balance difficulties; right foot pain; cognitive
limitations; visual limitations; and neuropsychological issues. He requires 24/7
supervision because of memory, executive functioning and physical limitations. He has
reached his maximum medical recovery and will continue to require 24/7 supervision and
physical assistance. He will require a legal guardian. He cannot drive a motor vehicle.
He will require neuropsychological follow up and behavioral intervention. He will
require psychiatric intervention and monitoring. The deficits created by his injuries are
permanent and are expected to worsen with the effects of aging. This will increase the
level of care he will require over time, and will call for additional services. It is
estimated that his life care will cost approximately $4,600,000.
¶9 Calvin filed a claim with the other driver’s liability insurer and also filed a claim
with NPIC. NPIC filed a complaint to obtain a declaration that there is no UIM coverage
for the accident because the 1980 Ford truck was never added to the Policy. The
Defendants filed their counterclaim to obtain a declaration that there is UIM coverage for
the accident. They requested damages arising from breach of contract, alleging that
5
NPIC breached its contract with them by failing to provide coverage and that NPIC
should be held liable for refusing to provide coverage.
¶10 Sadee was eighteen years old at the time of Calvin’s accident. While growing up,
Sadee spent time every day with Calvin and Renee. Calvin coached Sadee’s basketball
team. He helped her learn how to rope, ride horses, play basketball and sing. He was the
teacher of her life, her guidance counselor. She resided with her parents at the Stucky
Ranch in Avon, Montana, for her entire life until she went to college in Bozeman,
Montana, in August 2009, the week after Calvin’s accident. Had the accident not
occurred, Calvin and Renee would have moved Sadee to Bozeman. Because of the
accident, however, Calvin was in a coma in Seattle and Renee was with him, so neither
was there to help Sadee move into the college dormitory. While living in the college
dormitory, every day Sadee had to face the fact that all of the other girls had their fathers
and she did not.
¶11 During the summer of 2009, Sadee worked part time at the Avon Cafe. From
August 2009 until May 2010, Sadee lived in Bozeman on the Montana State University
(MSU) campus and attended college. During the summer of 2010, Sadee moved back
home to live with Calvin and Renee. She worked on the ranch and again part time at the
Avon Cafe. During that time, she was available to spend time with Calvin and to help
Renee care for him. In August 2010, Sadee returned to Bozeman to attend school and
lived on campus until May 2011. From May 2011 to August 2012, Sadee continued to
attend college at MSU and lived in Bozeman, off campus, with two roommates. She
6
worked at Famous Dave’s during this time. From August 2012 to December 2012, Sadee
continued to attend college at MSU, lived in Bozeman, and worked part time at Famous
Dave’s. Engulfed by the pain Calvin’s accident had caused her, Sadee was not able to
keep up with college and dropped out in December 2012, with only one semester left.
She emotionally and mentally could not return to college after December. Sadee has
been working full time since January 2013.
¶12 Sadee was raised to be strong and independent but, since the accident, has been
struggling. Until recently, she has not sought any counseling as a result of her father’s
injuries because she could not open up and talk about it. She thought that as long as she
did not seek counseling or discuss it, the pain would go away. Additionally, she
financially could not afford counseling and her health insurance would not cover the cost.
However, Sadee began seeing Dr. Kenneth Olson, a psychiatrist in Bozeman, on October
25, 2013, and has continued to see him since. She has been diagnosed with Post-
Traumatic Stress Disorder (PTSD), sleep dysfunction and cyclothymic disorder.
¶13 The entire family dynamics have changed since Calvin was injured. In addition to
losing her father, Sadee has, in effect, lost her mother because Renee is too busy taking
care of Calvin to provide love, affection, time, guidance and support. The accident and
Calvin’s injuries have affected Sadee’s relationship with Renee and Callie Jo. Sadee
finds it painful to go home to the ranch because everything is different.
¶14 Calvin was taken from Sadee before she had a chance to develop an adult
relationship with him. There are many things she would like to be able to ask Calvin, but
7
she cannot. Prior to Calvin’s accident, Sadee was very active and looked forward to
doing and learning new things. Since the accident, she cannot develop the motivation to
do things, she does not sleep well, and she has gained sixty-five pounds. The accident is
in the back of Sadee’s mind at all times. She cannot get it out of her head. She is
frequently sad and experiences feelings of grief that Calvin will never be what or who he
was. For the first two years after the accident, Sadee assumed Calvin would recover and
return to his normal functioning. Now she has realized that he is never going to get
better. He will not return to his old self and she cannot see ever living a normal life with
him again.
¶15 Sadee expected that she would have the love and affection of her father for all of
her life. She expected that he would be there for her when she needed guidance, love and
support; that he would have helped her financially with college; that when she went home
for the summers during college they could work together on the ranch; and that they
would be able to laugh, talk and share with one another. Had the accident not occurred
on August 12, 2009, these expectations could have been realized, but now, they never
will be.
¶16 Sadee claims damages for loss of parental services, society, or consortium; loss of
support; grief and sorrow; and mental and emotional distress; and seeks attorney fees.
Her asserted legal basis for recovery is: “Pursuant to the insurance contract with Plaintiff
(policy language), Sadee and Callie Jo are insured parties also, under the policy.
8
Therefore, as insured family members, they are also entitled to damages for the injuries
caused by the third party tortfeasor, when the tortfeasor is underinsured.”
¶17 NPIC moved for summary judgment with respect to Sadee’s loss of consortium
claim, asserting that Montana law does not recognize a claim for loss of consortium by
the adult child of an injured parent. NPIC further contended that, even if Montana law
did recognize a claim for loss of consortium by the adult child of an injured parent, it
would require the plaintiff to establish “significant evidence of an extraordinarily close
and interdependent relationship” as in the context of a claim for loss of consortium by the
parent of an adult child. The federal court, which had diversity jurisdiction, concluded
that resolving NPIC’s motion involved important questions of public policy and thus,
certified the matter to this Court pursuant to Rule 15 of the Montana Rules of Appellate
Procedure.
STANDARD OF REVIEW
¶18 When answering a certified question from another qualifying court as permitted by
M. R. App. P. 15(3), our review is “purely an interpretation of the law as applied to the
agreed facts underlying the action.” Van Orden v. United Servs. Auto. Ass’n, 2014 MT
45, ¶ 10, 374 Mont. 62, 318 P.3d 1042 (quotations and citations omitted).
DISCUSSION
¶19 1. Does Montana law recognize a claim for loss of consortium by the adult child
of an injured parent?
9
¶20 The defendants assert, and NPIC seems to imply, that Montana law should
recognize a claim for loss of consortium by an adult child based on injury to the parent.
The parties differ as to how such a claim should be defined. NPIC argues that a loss of
consortium claim brought by the adult child of an injured parent should be recognized
only in narrow circumstances and should be subject to a very high level of proof. The
defendants, and amicus Montana Trial Lawyers’ Association (MTLA), argue that such a
claim should be established by evidence of a loss, shown on a more-likely-than-not basis,
which considers the facts and circumstances of the loss.
¶21 We conclude that Montana law recognizes a loss of consortium claim by the adult
child of an injured parent, and that such a claim, deriving from the common law, is
supported by our statutes and Constitution. We have recognized that “judicial
modification of the common law is sometimes required to prevent great injustice or to
insure that the common law is consonant with the changing needs of society.” Miller v.
Fallon County, 222 Mont. 214, 217-18, 721 P.2d 342, 344 (1986).
¶22 Historically, the law recognized only a husband’s loss of consortium claim when
injury to his wife was caused by the intentional tort of another. Pence v. Fox, 248 Mont.
521, 523, 813 P.2d 429, 431 (1991). The right expanded to include consortium claims
when the loss was caused by an act of negligence. Pence, 248 Mont. at 523, 813 P.2d at
431. Over time, the law also evolved to recognize the wife’s right to bring consortium
claims for losses of spousal consortium caused by intentional or negligent acts. Pence,
248 Mont. at 523, 813 P.2d at 431. Montana’s precedent follows the emerging trend of
10
expanding common law loss of consortium claims. See Bear Medicine v. U.S., 192 F.
Supp. 2d 1053, 1067 (D. Mont. 2002) (recognizing a loss of consortium claim for parents
of an adult child, reasoning that the Montana Supreme Court has “recognized repeatedly”
its authority and responsibility for developing the common law).
¶23 The first recognition of a wife’s claim for loss of consortium caused by a
defendant’s negligence in Montana occurred in Duffy v. Lipsman-Fulkerson & Co., 200
F. Supp. 71 (D. Mont. 1961), by the Montana Federal District Court. The court noted
that a cause of action is established by the combination of two elements: A right on the
part of a plaintiff, and an invasion of that right by the defendant. Duffy, 200 F. Supp. at
72. Although the court cited statutes defining a wife’s rights under a marriage contract to
support its opinion, it noted that there was “no express statutory authorization” for such
an action and “no Montana Supreme Court decision directly on the point.” Duffy, 200 F.
Supp. at 72. The court reasoned that because the law recognized a husband’s claim for
loss of consortium caused by another’s negligent harm to the wife, the law should
recognize the same cause of action brought by the wife of a negligently injured husband.
Duffy, 200 F. Supp. at 74. Ultimately, the court concluded that “Montana is committed to
the common law as the law and rule of decision, and . . . the common law recognized the
husband’s right to maintain such action.” Duffy, 200 F. Supp. at 75. Thus, the cause of
action the federal court initially recognized is primarily founded in the common law.
¶24 In Dutton v. Hightower & Lubrecht Constr. Co., 214 F. Supp. 298 (D. Mont.
1963), the federal court again addressed the wife’s right to bring a loss of consortium
11
claim for a defendant’s negligent injury to her husband. In that case, the court relied on
statutes defining the civil contractual relationship between husband and wife as the
source of the right to consortium in its analysis. Dutton, 214 F. Supp. at 300. The court
explained that statutes defining the rights a woman obtains by virtue of her marriage had
supplanted the common law, which denied the wife a cause of action or the right to sue
for loss of consortium. Dutton, 214 F. Supp. at 300. The Dutton court did not hold,
however, that the source of a right giving rise to a loss of consortium claim necessarily
had to be in statute; rather, the court reasoned that the legislature had passed statutes that
supplanted the common law, to the extent that the common law had limited a wife’s
cause of action for loss of consortium due to a defendant’s negligence. Dutton, 214 F.
Supp. at 300.
¶25 Following in the footsteps of the federal court, this Court first recognized a cause
of action for loss of consortium by the deprived spouse in Bain v. Gleason, 223 Mont.
442, 726 P.2d 1153 (1986). In Bain, we determined that the husband of an injured wife
could bring a loss of consortium claim “separate and distinct” from the wife’s claim
against the tortfeasor and that the basis for such a claim was the statutory contractual
obligation between husband and wife, set forth in § 40-2-101, MCA. Bain, 223 Mont. at
445, 726 P.2d at 1155. We quoted this principle in Priest v. Taylor, 227 Mont. 370, 379,
740 P.2d 648, 653 (1987), where we also explained that, though separate and distinct, the
spouse’s cause of action for loss of consortium is derivative of the other spouse’s claim.
12
We later clarified the relationship between the statutory basis for a consortium claim set
forth in Bain and the common law:
Section 40-2-101, MCA, does not “create” the cause of action. It merely
defines the obligations which inhere in the marriage relationship and upon
which the common law action is based. . . . The statute merely codifies the
policy behind the common law by recognizing that spouses contract with
one another for mutual obligations.
Pence, 248 Mont. at 525, 813 P.2d at 432.
¶26 In Pence, we recognized a minor child’s loss of consortium claim related to the
parent’s injuries, where the parent had been rendered quadriplegic by a tortfeasor. We
pointed out that like the rights of a spouse, the rights of a child to support, aid, protection,
affection and society of the parent derive from both statute and case law. Pence, 248
Mont. at 526, 813 P.2d at 432. In recognizing and defining a child’s right to parental
consortium, we cited with approval the Alaska Supreme Court:
When a parent is seriously injured, his or her child suffers a loss of
enjoyment, care, guidance, love and protection, and is also deprived of a
role model. Even courts that deny the parental consortium cause of action
have acknowledged the reality of such emotional and psychological injury
to the child, and the Alaska legislature has implicitly done so in allowing
recovery by children for loss of consortium under Alaska’s wrongful death
statute.
Precluding minor children from maintaining a cause of action for loss of
parental consortium arising from their parent’s injury would, in our view,
be inconsistent with the legislature’s authorization of such recovery when
the parent dies, and with our prior holding in Fruit that a husband or wife
may recover damages for loss of consortium when an injured spouse
survives. The claim for loss of parental consortium presented in this case is
not sufficiently distinguishable from either spousal consortium claims in
injury cases or children’s consortium claims in death cases to warrant
nonrecognition.
13
Pence, 248 Mont. at 526-27, 813 P.2d at 433 (quoting Hibpshman v. Prudhoe Bay
Supply, Inc., 734 P.2d 991, 994 (Alaska 1987) (citations omitted)). We concluded that
the right of minor children to parental aid, protection, affection, society, discipline,
guidance and training were supported by the best interest of the child test in custody
determinations under § 40-4-212, MCA, and the right of the child to seek damages under
Montana’s wrongful death statute. Pence, 248 Mont. at 527, 813 P.2d at 433.
¶27 We later refined Pence in Keele v. St. Vincent Hosp. & Heath Care Ctr., 258
Mont. 158, 852 P.2d 574 (1993), where we held that a parent need not have been
rendered quadriplegic by an injury to give rise to a minor child’s cause of action for loss
of parental consortium. In that case, we adopted the two-part standard for asserting such
a cause of action set forth by the Arizona Supreme Court in Villareal v. Dept. of Transp.,
774 P.2d 213 (Ariz. 1989). We borrowed heavily from Villareal in Keele and, here, we
once again find the Arizona Supreme Court’s remarks worth noting: “‘While all family
members enjoy a mutual interest in consortium, the parent-child relationship is
undeniably unique and the wellspring from which other family relationships derive.’”
Villareal, 774 P.2d at 217 (quoting Frank v. Super. Ct., 722 P.2d 956, n. 3 (Ariz. 1986)).
¶28 Applying our precedent, the Montana Federal District Court recognized a claim
for loss of consortium by the parents of an injured adult child in Bear Medicine. We
endorsed that application in Hern v. Safeco Ins. Co. of Ill., 2005 MT 301, ¶ 58, 329 Mont.
347, 125 P.3d 597, reasoning that “under certain circumstances . . . the bond between
parents and an adult child, and the loss experienced by the parents at the death of or
14
serious injury to their child, may be of such quality as to warrant recovery by the parents
for loss of consortium.” We explained that the nature of the circumstances giving rise to
such a claim was not capable of easy definition or determination and, instead, each case
had to be determined based on the facts and evidence presented. Hern, ¶ 58. We
concluded that “significant evidence of an extraordinarily close and interdependent
relationship” was necessary before a court could consider awarding loss of consortium
damages to parents of an adult child. Hern, ¶ 58. A “high level of proof” was required,
encompassing, for instance, evidence that the child had contributed to the parents’
financial support or managed their property or holdings. Hern, ¶ 61. This recognition
reflected the federal court’s observation in Bear Medicine that “it is proof of the quality
of the relationship that should logically govern the extent of any claim by a parent
concerning their damages incurred by the death of their adult child.” Bear Medicine, 192
F. Supp. 2d at 1068. Neither Bear Medicine nor Hern relied on statutes to establish a
legal right to consortium, however. The federal court in Bear Medicine found support for
its decision to recognize a loss of consortium action for parents of an injured adult child
in Montana’s wrongful death statute, § 27-1-513, MCA, but primarily based its result in
the common law. Bear Medicine, 192 F. Supp. at 1068. In Hern, this Court relied
entirely on Bear Medicine in its analysis of the loss of consortium claim there. Hern,
¶¶ 50-61.
¶29 The question of whether the adult child of an injured parent may assert a cause of
action for loss of consortium is one of first impression in Montana. Other states’ courts
15
have, however, previously addressed this issue. The Iowa Supreme Court, in Audubon-
Exira Ready Mix, Inc. v. Ill. Cent. & Gulf R.R. Co., 335 N.W.2d 148, 152 (Iowa 1983),
reconsidered an earlier decision in which it had limited loss of consortium recoveries to
minor children, reasoning “even adult and married children have the right to expect the
benefit of good parental advice and guidance.” (Quotation omitted.) The Washington
Supreme Court, in recognizing a child’s claim for loss of consortium of an injured parent,
declined to limit recovery to minor children, but rather left the child’s age as a matter for
the jury to consider while fixing damages. Ueland v. Pengo Hydra-Pull Corp., 691 P.2d
190, 195 (Wash. 1984). The Ohio Supreme Court, extending the loss of parental
consortium claim to emancipated, adult children, reasoned:
[J]ust as minor children look to their parents for emotional support,
[middle-aged] adult children who continue to enjoy a close relationship
with their parents still depend upon their parents for affection, advice, and
guidance as they become older. . . . Therefore, regardless of the age of the
child, the loss to the parent-child relationship is real and should not be
minimized.
Rolf v. Tri State Motor Transit Co., 745 N.E.2d 424, 426-27 (Ohio 2001). The trend
among other courts is towards allowing recovery for the loss of the intangible benefits
inherent in close familial relationships, in light of the enduring nature of family bonds.
See e.g. Marquardt v. United Airlines, Inc., 781 F. Supp. 1487, 1491-92 (D. Haw. 1992)
(Hawaii law recognizes a claim for loss of filial consortium by parents of an adult child
and the action is focused on loss of the intangible elements of love, comfort,
companionship and society); Nelson v. Four Seasons Nursing Ctr., 934 P.2d 1104, 1105
(Okla. Civ. App. 1996) (“There is simply no good reason to afford the personal right of
16
companionship and the parent-child relationship less protection in cases involving adult
children who seek to recover for injury to the parent-child relationship.”); Jordan v.
Baptist Three Rivers Hosp., 984 S.W.2d 593, 601 (Tenn. 1999) (“Consortium losses are
not to limited to spousal claims but also necessarily encompass a child’s loss, whether
minor or adult.”); Fitzjerrell v. City of Gallup, 79 P.3d 836, 840-41 (N.M. Ct. App. 2003)
(distinguished by Lamphere v. U.S., No. 06CV2174-LAB (JMA), 2008 U.S. Dist. LEXIS
22917, *13 (S. D. Cal. Mar. 24, 2008)) (allowing a plaintiff to bring a claim for loss of
consortium as long as he or she established evidence of a sufficiently close familial
relationship and foreseeability of injury to that relationship). We find these authorities
persuasive and their rationale consistent with our precedent establishing the common law
in Montana.
¶30 Our statutes—although not directly on point—also reflect the recognition that
parents and children provide a financial and emotional support system for one another
well beyond the time when the child reaches the age of majority. For instance, our
statutes require children and parents to support one another, where a child or parent
becomes unable to provide for him or herself. Sections 40-6-214, -301, MCA. This
Court has previously held that § 40-6-214, MCA, imposes on the parent of disabled adult
children who are unable to care for themselves a duty to support the children to the extent
of the parent’s ability. In re M.A.S., 2011 MT 313, ¶¶ 14-15, 363 Mont. 96, 266 P.3d
1267. It is consistent with the policy underlying our statutory scheme to recognize a
cause of action for loss of consortium brought by the adult child of an injured parent.
17
¶31 Finally, Article II, Section 16, of the Montana Constitution provides that “[c]ourts
of justice shall be open to every person, and speedy remedy afforded for every injury of
person, property, or character.” We discussed this right of full legal redress extensively
in Meech v. Hillhaven W., 238 Mont. 21, 30, 776 P.2d 488, 493 (1989), concluding that
the right is not fundamental, but rather guarantees the right to access the courts to seek a
remedy for wrongs recognized by common law or statutory authority.
¶32 We conclude that it is a natural extension of Montana’s common law to recognize
a cause of action for loss of consortium brought by the adult child of an injured parent.
Such an action is consistent with our precedent, which has followed the national trend of
expanding circumstances in which the law recognizes a cause of action for loss of
consortium. It is further supported by the policy of recognizing the enduring nature of
the parent-child relationship which underlies our statutory scheme. Consequently, it is
within our Constitution’s guarantee of full legal redress for recognized wrongs. We
answer the first question in the affirmative.
¶33 2. If Montana recognizes a claim for loss of consortium by the adult child of an
injured parent, what evidentiary standard must the plaintiff meet in order to assert such a
claim?
¶34 NPIC, relying on Hern, urges that we limit loss of consortium claims for adult
children of injured parents to cases in which there exists “significant evidence” of an
“extraordinarily close and interdependent relationship.” The defendants and amicus
suggest, instead, that we require a claimant, on a more-likely-than-not basis, to establish a
18
loss by presenting evidence to a jury of relevant facts including but not limited to: The
severity of injury to the parent; the actual effect the parent’s injury has had on the
relationship and is likely to have in the future; the child’s age; the nature of the child’s
relationship with the parent; and the child’s emotional, physical and geographic
characteristics.
¶35 In Keele, we set forth the elements a minor child must prove to establish a claim
for loss of parental consortium:
1) a third party tortiously causes the parent to suffer a serious, permanent
and disabling mental or physical injury compensable under Montana law;
and
2) the parent’s ultimate condition of mental or physical impairment must be
so overwhelming and severe that it causes the parent-child relationship to
be destroyed or nearly destroyed.
Keele, 258 Mont. at 162, 852 P.2d at 577 (citing Villareal, 774 P.2d at 219). Discussing
our adoption of that standard, we explained, as had the Villareal Court, that the first
factor limits a minor child’s claim to one for injuries that are “compensable under
Montana law”—or derivative of the parent’s tort claim. Keele, 258 Mont. at 162, 852
P.2d at 577. We also emphasized that the second factor is meant to establish that the
destruction or near destruction of the parent-child relationship as a result of the parent’s
impairment is a necessary element in establishing the cause of action itself, not merely a
factor in computing damages. Keele, 258 Mont. at 163, 852 P.2d at 577; see Villareal,
774 P.2d at 219 (“Not all injuries to parents will result in a child’s claim for loss of
consortium. We limit our holding to allow loss of consortium claims only when the
19
parent suffers serious, permanent, disabling injury rendering the parent unable to provide
love, care, companionship, and guidance to the child. The parent’s mental or physical
impairment must be so overwhelming and severe that the parent-child relationship is
destroyed or nearly destroyed.”) (citations omitted). The requirement in Hern, that a
parent seeking damages for loss of an adult child’s consortium demonstrate evidence of
an extraordinarily close and interdependent relationship, instead served to define an
evidentiary threshold in an action for wrongful death of an adult child.
¶36 We can see no reason to adopt a different standard from the one set forth in Keele
where an adult child’s claim for loss of parental consortium is at issue. We conclude that
the Keele standard better reflects the relationship between the parties when it is the parent
who suffers a disabling injury; it is only the age of the child that is different from that in
Keele, and that is a matter for the jury to consider. Once the elements necessary to
establish a claim for loss of parental consortium have been met, Keele, 258 Mont. at 162,
852 P.2d at 577, we conclude that the factors set forth by the defendants and amicus are
relevant to a jury’s determination both of whether the Keele factors have been satisfied,
and of what damages are appropriate. These factors, in fact, derive from Villareal. The
Villareal Court, in setting the standard we adopted as modified in Keele, explained:
To bring a consortium claim, the child/plaintiff must show that the
defendant injured the child’s parent in a manner that would subject the
defendant to liability under ordinary tort principles. The injury to the
parent must cause severe damage to the parent-child relationship. The child
may recover for the loss of the parent’s love, affection, protection, support,
services, companionship, care, and society. In determining the amount of
damages to award the child, relevant factors include, but are not limited to,
the child’s age, the nature of the child’s relationship with the parent, the
20
child’s emotional and physical characteristics, and whether other
consortium-giving relationships are available for the child.
Villareal, 774 P.2d at 220-21. Thus, while we decline to adopt a new standard, we
endorse the practice of presenting evidence—including, but not limited to, evidence of
the severity of injury to the parent; the actual effect the parent’s injury has had on the
relationship and is likely to have in the future; the child’s age; the nature of the child’s
relationship with the parent; and the child’s emotional, physical and geographic
characteristics—which tends to illustrate the nature of the loss to the jury. This is
consistent with Hern’s recognition that each case must be determined on the facts and
evidence presented. Hern, ¶ 58.
¶37 The special relationship factor proposed by NPIC would impose too harsh a
limitation on an adult child’s cause of action for loss of consortium. The cause of action
we recognize under the common law is not limited by its statutory “basis” as NPIC
argues. Because our statutes do not define a cause of action, the common law governs,
and may find support in the statutory framework. See Pence, 248 Mont. at 525, 813 P.2d
at 432. Although we recognize that the nature of the parent-child relationship may
change when the child reaches adulthood, the child’s need for parental support, aid,
protection, affection, society, discipline, guidance and training do not evaporate upon
reaching the age of majority. Rather, as the Ohio Supreme Court recognized in Rolf, an
adult child’s need for a parent’s guidance may change or re-emerge as the child confronts
the different obstacles he or she meets in new phases of life. As an “independent person
who is expected to navigate his or her own way through life” the adult child’s path may
21
be illuminated and smoothed by the benefit of a parent’s wisdom, love and insight. The
extent and nature of the child’s need for a close parent-child relationship, and the extent
of the injury to the parent’s ability to participate in one, may be evaluated by the jury as it
determines whether the Keele factors have been satisfied and, if so, contemplates
damages. It is worth noting, as well, that an adult child’s reliance on a parent for
guidance and support is likely different from the parent’s reliance on a child that we
discussed in Hern. No “extraordinarily close and interdependent relationship” is required
for an adult child to be harmed, or even devastated, by the effective loss of a close parent-
child relationship.
CONCLUSION
¶38 We conclude that Montana law recognizes a claim for loss of consortium brought
by the adult child of an injured parent. To establish a cause of action for loss of
consortium, the plaintiff must establish: 1) a third party tortiously caused the parent to
suffer a serious, permanent and disabling mental or physical injury compensable under
Montana law; and 2) the parent’s ultimate condition of mental or physical impairment is
so overwhelming and severe that it has caused the parent-child relationship to be
destroyed or nearly destroyed. In establishing his or her claim, the plaintiff may present
evidence of factors including but not limited to the severity of injury to the parent; the
actual effect the parent’s injury has had on the relationship and is likely to have in the
future; the child’s age; the nature of the child’s relationship with the parent; and the
child’s emotional, physical and geographic characteristics.
22
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
Justice Beth Baker, concurring.
¶39 I join the Court’s opinion and write to emphasize two points. First, loss of
consortium claims spring from the common law, not from any statute, and exist to
address interests beyond those the statutes on children and families are designed to
protect. Second, there are significant legal and policy reasons to support extension of the
common law to allow adult children to bring a claim for loss of consortium under
appropriate circumstances.
¶40 The Dissent criticizes the Court for characterizing Montana law as part of a
“national trend” of expanding circumstances under which a claim for loss of consortium
is allowed, opining that a majority of states do not recognize a claim for loss of
consortium by adult children. Dissent, ¶ 63. A survey of state case law shows
considerable variation among those courts that have considered the question. See
Marjorie A. Shields, Annotation, Adult Child’s Right of Action for Loss of Parental
Consortium, 12 A.L.R. 6th 241, § 2 (2006 & Supp. 2014) (noting that “[a] number of
courts” recognize an adult child’s right of action for loss of parental consortium in an
action involving a nonfatal injury to the parent; that “[a] few courts” have recognized
23
limited rights of an adult child in such cases; and that “[o]ne court declined to recognize
an adult child’s right of action for loss of parental consortium” in a nonfatal injury case);
Brooks v. Harley-Davidson Motor Co., 2009 U.S. Dist. LEXIS 74867, 9-10 (E.D. Pa.
2009) (citing three states that have not recognized a loss of consortium claim in cases
involving relationships between parents and adult children and six states that have
recognized a claim by adult children). Neither the parties nor the Dissent cite a case in
which a state’s highest court squarely rejected an adult child’s claim for loss of
consortium where it previously had recognized such a common law claim for a minor
child—the issue we face here.1
¶41 In actuality, there appear to be relatively few recent court decisions that decide the
issue one way or the other. But much has been written about the topic, and “most legal
commentary favors recognition” of a cause of action for a child’s loss of parental
consortium, citing such factors as “‘the fundamental importance of the parent-child
relationship, the genuineness of the loss sustained, and the administrative feasibility of
1
Of the five states the Dissent cites as having “specifically denied” an adult child’s claim,
Dissent, ¶ 63, two do not recognize even a minor child’s claim for loss of consortium when a
parent is injured. Lewis v. Rowland, 701 S.W.2d 122, 123 (Ark. 1985); Natalini v. Little, 92 P.3d
567, 570 (Kan. 2004). One case considered, and rejected, only the claim of a non-adopted adult
step-child. Mendoza v. B.L.H. Electronics, 530 N.E.2d 349, 350 (Mass. 1988). In another, an
intermediate appellate court concluded that any extension of a right of action must come from
either the legislature or the state’s supreme court. Smith v. Vilvarajah, 57 S.W.3d 839, 844 (Ky.
Ct. App. 2000). In the fifth, the Wisconsin Supreme Court decided for the first time that a minor
child may bring a cause of action for the loss of a parent’s society and companionship resulting
from another’s negligence. Theama v. Kenosha, 344 N.W.2d 513 (Wis. 1984). The injured
party’s children were minors when the injury occurred and the case did not involve a claim
brought on behalf of an adult child. In a concluding sentence, the court “presently limit[ed]
recovery under this cause of action to the child’s minority, because the minor is one whose
relationship is most likely to be severely affected by a negligent injury to the parent.” Theama,
344 N.W.2d at 522.
24
allowing compensation.’” 131 Am. Jur. Proof of Facts 3d 187, Loss of Consortium in
Parent-Child Relationship, § 3 (quoting Jean C. Love, Tortious Interference with the
Parent-Child Relationship: Loss of an Injured Person’s Society and Companionship, 51
Ind. L.J. 590, 634 (1976)). Montana accepted this principle in Pence and Keele, when we
allowed a minor child to bring a loss of consortium claim for a parent’s injuries.
¶42 Although the Dissent finds no expressed reason to recognize such a claim after the
child has reached the age of majority, numerous reasons exist to support this logical
extension of existing law. First, this is not an area of the law in which rights of recovery
derive from statutory duties. A claim for loss of consortium seeks to compensate for the
“aid, protection, affection and society” of the injured person, Bain, 223 Mont. at 445, 726
P.2d at 1155, not for financial support that the injured person is charged by statute with
providing for a child. It is a claim that has its genesis in the common law, and addresses
“injuries to emotional well-being.” 2 Dan B. Dobbs, Paul T. Hayden & Ellen
M. Bublick, The Law of Torts § 392, 583 (2d ed. 2011). Recognizing that the husband
had a right at common law to maintain an action for loss of consortium, Dutton held that,
as “the purpose of the ‘Married Women’s Act’2 was to place the wife on a parity with the
husband insofar as enforcing contractual rights in the courts,” she also has the right to
recover for loss of consortium. “Montana is committed to the common law as the law
and rule of decision, absent statutory law, and . . . Montana has enacted no statute taking
away this common law right of the husband” to maintain an action for loss of consortium.
2
See §§ 36-110, 36-128, R.C.M. (1947).
25
Dutton, 214 F. Supp. at 300-01. The Married Women’s Act simply served to abolish
common law barriers that were based on outdated historical concepts.
¶43 We expressly rejected the argument in Pence that the claim for loss of consortium
derived from statutes giving a husband and wife contractual obligations of mutual
respect, fidelity, and support. Section 40-2-101, MCA. “The inaccuracy of the
defendants’ conclusion that the legislature created the claim through § 40-2-101, MCA, is
proven by the fact that the statute has been on the books since 1895, but it was not until
1986 that this Court recognized the claim. The statute merely codifies the policy behind
the common law by recognizing that spouses contract with one another for mutual
obligations.” Pence, 248 Mont. at 525, 813 P.2d at 432. The same common law rule
vesting the husband with all rights to recover for injuries to his wife gave the father an
ownership interest in the services of his children and the right to recover the pecuniary
value of those services when deprived of them through a defendant’s intentional or
negligent conduct. David P. Dwork, Note, The Child’s Right to Sue for Loss of a
Parent’s Love, Care and Companionship Caused by Tortious Injury to the Parent, 56
B.U.L. Rev. 722, 726 (1976). These vestiges of the common law slowly have been
whittled away by the courts to allow wives and children to bring independent claims in
their own rights. Opinion, ¶¶ 22-29.
¶44 Second, the Dissent’s reliance on the statutory basis for damages in wrongful
death actions to deny a common law claim in nonfatal injury cases is misplaced.
Wrongful death actions are a creature of statute, but actions for personal injury are not.
26
Under Montana law, the legislature enacts statutes to limit rights that otherwise would be
available at common law. “Except as otherwise provided by law, each person is
responsible not only for the results of the person’s willful acts but also for an injury
occasioned to another by the person’s want of ordinary care or skill in the management of
the person’s property or person except so far as the person has willfully or by want of
ordinary care brought the injury upon the person.” Section 27-1-701, MCA (emphasis
added). Moreover, we reaffirmed just recently that “Montana does not statutorily define
wrongful death claimants, but through the common law has identified survivors who may
claim wrongful death damages, as well as the parameters of recovery.” In re Estate of
Bennett, 2013 MT 230, ¶ 11, 371 Mont. 275, 308 P.3d 63 (citing cases).
¶45 In this regard, recovery under Montana’s wrongful death statute is no different
from recovery in nonfatal injury cases. Section 27-1-323, MCA, allows a wrongful death
claimant to recover “such damages . . . as under all the circumstances of the case may be
just.” Similarly, “[t]he law of torts ‘attempts primarily to put an injured person in a
position as nearly as possible equivalent to his position prior to the tort.’” Sunburst Sch.
Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 32, 338 Mont. 259, 165 P.3d 1079 (quoting
Restatement (Second) of Torts § 901 cmt. a (1997); Butler v. Germann, 251 Mont. 107,
110, 822 P.2d 1067, 1069 (1991)). Accordingly, “Montana law provides for monetary
compensation to every person who suffers detriment from the unlawful act or omission of
another.” Henricksen v. State, 2004 MT 20, ¶ 76, 319 Mont. 307, 84 P.3d 38 (citing
§ 27-1-202, MCA); see, e.g., Montana Pattern Instructions (MPI2d) 25.00 (published by
27
the State Bar of Montana, 2003) (“If you find for the plaintiff on the question of liability,
then you must determine the amount of money which will reasonably and fairly
compensate the plaintiff for all loss caused by the defendant(s), regardless of whether
such loss could have been anticipated.”).
¶46 Finally, “courts have increasingly recognized and expanded the field of children’s
rights.” Katarina Donohue, Should California Extend its Current Law on Loss of
Consortium to the Parent-Child Relationship In Cases Where the Child or Parent Has
Been Negligently Injured by a Third Party?, 5 Whittier J. Child & Fam. Advoc. 625, 634
(2005-2006). I have little trouble concluding, as have numerous other courts, “that the
two relationships likely to be most severely affected by a negligent injury to a person are
the husband and wife relationship and that of the parent and child[.]” Reagan v. Vaughn,
804 S.W.2d 463, 466 (Tex. 1990). It certainly is foreseeable that a child will be severely
impacted by a serious injury to the parent, even if the child is over eighteen at the time
that injury occurs.
¶47 The loss of a parent’s “care, companionship, and education” is “a genuine injury,
and a serious one.” William L. Prosser, Handbook of the Law of Torts, § 125, 896 (4th
ed. 1971); see also Dobbs et al., § 392. Although the legal duty of financial support may
in most cases terminate when a child reaches adulthood, but see In re M.A.S., ¶¶ 14-15,
the law should not impose such an artificial extinguishment when it comes to the inherent
filial right to a parent’s affection, aid, and society. Rather, it is the nature of the
28
parent-child relationship and the destruction of that relationship that should serve to
determine whether the cause of action is available.
¶48 Obviously, the older and more independent the child, and the further the distance
between child and parent—geographically or emotionally—the more attenuated a loss of
consortium claim becomes. Ueland v. Pengo Hydra-Pull Corp., 691 P.2d 190, 195
(Wash. 1984). But the Court today properly leaves to the trial court the decision whether
a sufficient claim has been made in the case before it to allow consideration by the jury.
Opinion, ¶ 36. Based on the facts to which the parties have stipulated, I concur that such
a claim has been stated by Sadee Stucky.
/S/ BETH BAKER
Justice Laurie McKinnon, dissenting.
¶49 The Court begins from the proposition that “‘judicial modification of the common
law is sometimes required to prevent great injustice or to insure the common law is
consonant with the changing needs of society.’” Opinion, ¶ 21 (quoting Miller v. Fallon
Cnty., 222 Mont. 214, 217-18, 721 P.2d 342, 344 (1986)). This is a noble statement. Our
responsibility to “reform common law as justice requires,” Pence v. Fox, 248 Mont. 521,
524, 813 P.2d 429, 431 (1991), however, does not lead inevitably to the result reached by
the Court today.
¶50 The Court relies heavily on precedent expanding the recognition of loss of
consortium claims, which were historically available only to compensate a husband for
29
injury to his wife. Opinion, ¶ 22. This analogy is inapt. The expansion of this cause of
action to provide equal redress for women was based upon the mutual rights and
obligations inhering in the marriage contract, recognized in statute, and further supported
by legislative policy intended “to place husband and wife upon a parity.” Duffy v.
Lipsman-Fulkerson & Co., 200 F. Supp. 71, 74 (D. Mont. 1961). Without question, the
common law in many instances harbored great injustices against women, and courts were
justified in recognizing reforms “consonant with the changing needs of society.” Miller,
222 Mont. at 218, 721 P.2d at 344. With respect to the question we face today, however,
“‘the reasoning supporting the recognition of the wife’s claim, to end an [u]njust
discrimination in the law, is not applicable to a child’s claim for loss of parental
consortium.’” W.J. Bremer Co. v. Graham, 312 S.E.2d 806, 808 (Ga. Ct. App. 1983)
(quoting DeAngelis v. Lutheran Med. Ctr., 84 A.D.2d 17, 26 (N.Y. App. Div. 1981),
aff’d, 449 N.E.2d 406 (N.Y. 1983)). In relying generally on its authority to develop the
common law, Opinion, ¶¶ 21-22, the Court misses the fact that substantially different
social policies and historical circumstances justified the expansion of the cause of action
to allow redress for wives as well as husbands.
¶51 The Court also mischaracterizes the relationship between the loss of consortium
cause of action and its foundation in a pre-existing legal right, which was relied upon by
the federal court in Duffy. 200 F. Supp. at 72-73. As the Court notes, Duffy looked to
two elements defining a cause of action: a right on the part of the plaintiff, and the
30
violation of that right by the defendant. Opinion, ¶ 23; 200 F. Supp. at 72. The court
stated:
Turning then to the first element of a cause of action, the existence of a
right in the plaintiff, it is clear under Montana law that a wife obtains
certain rights by virtue of the marriage relationship. [Section] 48-101,
R.C.M. 1947, provides that marriage is a personal relation arising out of a
civil contract, to which the consent of parties capable of making it is
necessary. [Section] 36-101, R.C.M. 1947, provides that upon entering into
a marriage, the husband and wife contract toward each other obligations of
mutual respect, fidelity and support. Thus the mutual rights which arise in
the husband and wife upon marriage may be termed contractual rights or
legal rights. It is also clear that included in these rights which arise upon
marriage are rights which are embraced within the meaning of the term
consortium . . . .
Duffy, 200 F. Supp. at 72-73 (emphasis added); see also Dillon v. Great N. Ry., 38 Mont.
485, 496, 100 P. 960, 963 (Mont. 1909) (cause of action sounding in tort “is composed of
the right of the plaintiff and the wrong of the defendant”) (emphasis added).
¶52 The recognition of a cause of action requires the existence of a legal right, which
the Duffy court found both in Montana’s statutes and in the marriage contract. 200 F.
Supp. at 72-73. Two years later, the federal court again confronted the question, and
again based its recognition of the cause of action on existing statutory and common law
rights. Dutton v. Hightower & Lubrecht Constr. Co., 214 F. Supp. 298, 300 (D. Mont.
1963). The Dutton court explained that the right of a husband to recover for the loss of
his wife’s consortium existed in common law, and that those aspects of the common law
denying a wife the same right had been changed by statute. 214 F. Supp. at 300-01.
Neither Duffy nor Dutton created new rights; they recognized rights existing at common
law and the manner in which legislative action had altered the common law.
31
¶53 When this Court addressed the issue in 1986, it held “that the basis for a
consortium claim lies in the Montana statutes in which the husband and wife contract for
obligations of mutual respect, fidelity, and support,” again referring to rights existing at
common law and in contract, and the specific recognition of those rights by the
legislature. Bain v. Gleason, 223 Mont. 442, 445, 726 P.2d 1153, 1155 (1986) (citing
§ 40-2-101, MCA). Bain did not create “a legal right to the aid, protection, affection and
society of the other spouse,” but acknowledged that such right already existed and thus
deserved legal protection. 223 Mont. at 445, 726 P.2d at 1155.
¶54 In Pence, we were asked to address whether two minor children had a cause of
action for loss of parental consortium when their father had been injured and rendered
quadriplegic. 248 Mont. at 522, 813 P.2d at 403. In expanding the cause of action to
parties other than spouses, we continued to rely on the existence of common law and
statutory rights. Pence, 248 Mont. at 525-26, 813 P.2d at 432. Pence relied on
§ 40-6-211, MCA, which then stated: “The parent or parents entitled to custody of a
child must give him support and education suitable to his circumstances.”1 248 Mont. at
525, 813 P.2d at 432. Pence also recognized that this statute, like statutes governing
marriage, codified pre-existing common law rights. 248 Mont. at 525-26, 813 P.2d at
432 (“Like the rights of a wife, the rights of the child to support, aid, protection, affection
and society of the parent derive from both statute and case law.”) We later concluded
that the parent need not be rendered quadriplegic in order for his or her minor children to
1
Section 40-6-211, MCA, now reads: “The parent or parents of a child shall give the child
support and education suitable to the child’s circumstances.”
32
claim loss of consortium. Keele v. St. Vincent Hosp. & Health Care Ctr., 258 Mont. 158,
161, 852 P.2d 574, 576 (1993). We continued to recognize that our expansion of the loss
of consortium cause of action had its roots in both statutory and common law concepts:
that is, upon finding an existing statutory right, we appropriately recognized a cause of
action allowing aggrieved parties to recover for the violation of that right. Pence, 248
Mont. at 525-26, 813 P.2d at 432. Our development of the common law was therefore
based on existing legal rights. Though we recognized new claims allowing the
enforcement of those rights, we did not create the rights themselves from whole cloth.
¶55 Each of the cases cited above addressed a common law loss of consortium claim
based on non-fatal injuries to a spouse or parent. Another line of cases addresses
damages for loss of consortium brought in the context of a statutory wrongful death
action. Our consideration of the relationship between adults and their parents has been
limited to the context of statutory wrongful death actions, until today. In Dawson v. Hill
& Hill Truck Lines, 206 Mont. 325, 671 P.2d 589 (1983), we recognized that pursuant to
our wrongful death statutes, parents were entitled to recover loss of consortium damages
following the wrongful death of a minor child. Based on this decision, we later held that
children, regardless of minority or majority, were entitled to recover loss of consortium
damages following the wrongful death of a parent. Ewalt v. Scott, 206 Mont. 503, 675
P.2d 77 (1983). We based these holdings on our construction of § 27-1-323, MCA,
which provides that in a wrongful death action, “such damages may be given as under all
the circumstances of the case may be just.”
33
¶56 In Bear Medicine v. United States, 192 F. Supp. 2d 1053, 1067-68 (D. Mont.
2002), the federal court applied the holdings of Dawson and Ewalt to conclude that
Montana law would likely allow a parent to recover loss of consortium damages
following the death of an adult child.2 In Renville v. Frederickson, 2004 MT 324,
¶¶ 22-23, 324 Mont. 86, 101 P.3d 773, we concluded that a mother was not the proper
party to bring a wrongful death action because she was not the personal representative of
her adult son’s estate, but affirmed that “loss of consortium and loss of comfort and
society damages are examples of ‘just’ damages available in wrongful death actions,”
referring again to our interpretation of § 27-1-323, MCA.
¶57 In Hern v. Safeco Insurance Co. of Illinois, 2005 MT 301, ¶ 48, 329 Mont. 347,
125 P.3d 597, we again addressed a wrongful death action, as we had done in Renville
and as the federal court had done in Bear Medicine. The mother of the deceased adult in
that case argued that “§ 27-1-323, MCA recognizes a broad range of damages ‘as under
all the circumstances of the case may be just.’” Hern, ¶ 49. Following the lead of the
federal court in Bear Medicine, which relied on Kicking Woman’s role as a spiritual
leader within his tribe and his contributions to running his parents’ ranch, we concluded
that the parent of a deceased adult could claim loss of consortium damages where there
2
In Bear Medicine, Leland Kicking Woman was injured in a logging accident and died nine
months later as a result of those injuries. 192 F. Supp. 2d at 1060. Under these facts, I admit it
may be unclear, on a first reading, whether the court awarded loss of consortium damages to
Kicking Woman’s parents for the period during which he survived, but was severely injured, or
for his wrongful death. This ambiguity is resolved by the court’s statements that “[l]oss of
consortium damages are recoverable in wrongful death cases and are appropriate under the facts
of this case,” and “[l]oss of consortium damages compensate the plaintiff for the loss of care,
comfort, society and companionship of the decedent.” Bear Medicine, 192 F. Supp. 2d at 1070
(emphasis added).
34
existed “significant evidence of an extraordinarily close and interdependent relationship.”
Hern, ¶¶ 52-58.
¶58 The Court is simply wrong when it states that “[n]either Bear Medicine nor Hern
relied on statutes to establish a legal right to consortium . . . .” Opinion, ¶ 28. Both Bear
Medicine and Hern were wrongful death actions, and therefore relied on the wrongful
death statutes. Sections 27-1-323, -513, MCA. Unlike a common law loss of consortium
claim resulting from a non-fatal injury, “[a] cause of action for wrongful death is a
legislative creation.” Renville, ¶ 25. Bear Medicine and Hern interpreted and applied our
wrongful death statutes, as enacted by the legislature, to determine what damages were
“just” in those cases. Sections 27-1-323, -513, MCA.
¶59 We have been asked to decide whether an adult may bring an independent
common law claim for loss of consortium resulting from non-fatal injuries to her father.
In so deciding, we may not rely on the breadth of our wrongful death statutes, but must
return instead to those cases addressing the availability of the cause of action under the
common law. Those cases have allowed claims for loss of consortium to be brought only
by spouses or minor children. See Dutton, 214 F. Supp. at 299-300; Duffy, 200 F. Supp.
at 72; Keele, 258 Mont. at 159, 852 P.2d at 575; Pence, 248 Mont. at 522, 813 P.2d at
430; Bain, 223 Mont. at 445, 726 P.2d at 1155. Recognition of a claim by an adult for
the loss of consortium with his or her parent is not “a natural extension of Montana’s
common law.” Opinion, ¶ 32. Rather, it is a distinct departure from the logic that has
governed our previous analysis.
35
¶60 Our precedent, until now, has followed the approach outlined by the federal court
in Duffy: in recognizing a new cause of action, we have first looked for an existing right
on the part of the plaintiff. 200 F. Supp. at 72; Dillon, 38 Mont. at 496, 100 P. at 963. In
Duffy, Dutton, and Bain, that right was found to inhere in the marital obligation and
attendant rights, as recognized both at common law and by statute. Dutton, 214 F. Supp.
at 300; Duffy, 200 F. Supp. at 72-73; Bain, 223 Mont. at 445, 726 P.2d at 1155. In Pence
and Keele, that right was found in the legal obligation of a parent to support his or her
child, existing both at common law and in statute. Keele, 258 Mont. at 161, 852 P.2d at
576; Pence, 248 Mont. at 526, 813 P.2d at 432.
¶61 The Court departs from this precedent by premising its recognition of a new cause
of action on a relational interest, rather than a legal one. The Court cites no authority
establishing the right of an emancipated adult to receive the aid, protection, affection, and
society of a parent. While minor children have a right to receive care necessary for their
emotional well-being, In re C.M.S., 187 Mont. 115, 122-24, 609 P.2d 240, 243-45 (1979),
an adult has no similar right to be provided with affection, advice, or other benefits
conducive to emotional well-being. An adult has no legal right to be supported, whether
emotionally or financially, by his or her parent. See In re Marriage of Haberkern, 2004
MT 29, ¶ 20, 319 Mont. 393, 85 P.3d 743 (“In Montana, parental obligation to support
minor children ends when a child reaches the age of majority . . . .”). This can be a harsh
reality, as many young adults discover, but it is no less true for that. The Court
recognizes that we have no statutes “directly on point” which would establish such a right
36
or obligation. Opinion, ¶ 30 (citing §§ 40-6-214, -301, MCA, establishing obligations of
support between parents and adult children limited to circumstances of indigence or
disability). Instead, the Court broadly states, with no support in Montana law, that
“‘even adult and married children have the right to expect the benefit of good parental
advice and guidance.’” Opinion, ¶ 29 (quoting Audubon-Exira Ready Mix, Inc. v. Ill.
Cent. & Gulf R.R., 335 N.W.2d 148, 152 (Iowa 1983)). They may well expect it, but in
Montana they have no existing legal right to it.
¶62 By contrast, in Iowa, a statute provides that in cases of “wrongful or negligent
injury or death,” damages may be recovered for “the value of services and support as
spouse or parent, or both . . . .” Iowa Code § 613.15 (2013). It is this provision that the
Iowa Supreme Court relied on in allowing a child to recover damages for loss of parental
consortium in cases of non-fatal injury. Audubon-Exira Ready Mix, Inc., 335 N.W.2d at
151-52. The Iowa Supreme Court did not create a new right simply because it valued the
parent-child relationship. Rather, it interpreted the language of § 613.15 and found it did
not limit the availability of damages to the period of a child’s minority, and in so doing, it
actually retracted previous recognition of a child’s independent common law claim for
loss of parental consortium. Audubon-Exira Ready Mix, Inc., 335 N.W.2d at 152. The
court relied on public policy to support its statutory interpretation. Audubon-Exira Ready
Mix, Inc., 335 N.W.2d at 152. Our pronouncements about the “enduring nature of the
parent-child relationship,” Opinion, ¶ 32, serve no similar purpose, as we have no
applicable statute—outside the context of a wrongful death—to interpret.
37
¶63 While the Court cites a “national trend” in support of expanding recognition of
claims for loss of consortium, Opinion, ¶ 32, the majority of jurisdictions do not allow an
adult to bring a claim for loss of consortium with his or her injured parent. See 131 Am.
Jur. Proof of Facts 3d Loss of Consortium in Parent-Child Relationship § 4 (2013). The
Concurrence observes that “there appear to be relatively few recent court decisions that
decide the issue one way or the other.” Concurrence, ¶ 41. Indeed, only five
jurisdictions have decisively concluded that an adult may bring a cause of action or claim
damages for loss of consortium when his or her parent is severely injured. See
Audubon-Exira Ready Mix, Inc., 335 N.W.2d at 152; Rolf v. Tri State Motor Transit Co.,
745 N.E.2d 424, 427-28 (Ohio 2001); Nelson v. Four Seasons Nursing Ctr., 934 P.2d
1104, 1105 (Okla. Civ. App. 1996); Reagan v. Vaughn, 804 S.W.2d 463, 466 (Tex.
1990); Ueland v. Pengo Hydra-Pull Corp., 691 P.2d 190, 195 (Wash. 1984).3 An equal
number have specifically denied an adult’s right to bring a cause of action for loss of
consortium with an injured parent. See Lewis v. Rowland, 701 S.W.2d 122, 124 (Ark.
3
The Concurrence cites Brooks v. Harley-Davidson Motor Co., 2009 U.S. Dist. LEXIS 74867
at *10 (E.D. Pa. Aug. 21, 2009), which observed that six states had recognized such a claim.
One of the states referred to, Arizona, recognized a child’s claim for loss of parental consortium
in a consolidated appeal involving several families. Villareal v. Ariz. Dept. of Transp., 774 P.2d
213 (Ariz. 1989). One of these, the Villareal-Garcia family, included an adult daughter claiming
loss of parental consortium with her injured father. The Villareal-Garcia family settled before
the appeal was resolved, and thus the Arizona Supreme Court stated that its holding would apply
only to the Newman and Fuentes children, who were minors. Villareal, 774 P.2d at 219-20. The
Arizona Supreme Court reasoned that recognizing the cause of action was consistent
with “increased recognition and awareness of children as persons with rights,” a consideration
irrelevant to recognition of an adult’s claim. Villareal, 774 P.2d at 217. Additionally, in Hawaii,
the United States District Court has surmised that the Hawaii Supreme Court would likely
overturn a 1957 case and allow an adult’s claim for loss of parental consortium in cases of
non-fatal injury. Marquardt v. United Airlines, Inc., 781 F. Supp. 1487, 1491 (D. Haw. 1992).
The Hawaii Supreme Court has not yet acted. For these reasons, I cannot with confidence say
that either Arizona or Hawaii recognizes the cause of action.
38
1985); Natalini v. Little, 92 P.3d 567, 570 (Kan. 2004); Smith v. Vilvarajah, 57 S.W.3d
839, 841 (Ky. Ct. App. 2000); Mendoza v. B.L.H. Electronics, 530 N.E.2d 349, 350
(Mass. 1988) (declining to extend cause of action to adult stepchildren); Theama v. City
of Kenosha, 344 N.W.2d 513, 522 (Wisc. 1984). The Concurrence fails to observe the
large number of jurisdictions in which an adult’s cause of action for loss of parental
consortium is unlikely ever to be addressed, because the same cause of action by a minor
child has already been rejected. See Borer v. Am. Airlines, 563 P.2d 858, 860-61 (Cal.
1977); Lee v. Colo. Dept. of Health, 718 P.2d 221, 234 (Colo. 1986); Mendillo v. Bd. of
Educ., 717 A.2d 1177, 1187-88 (Conn. 1998); W.J. Bremer Co., 312 S.E.2d at 808; Huter
v. Ekman, 484 N.E.2d 1224, 1226 (Ill. App. Ct. 1985); Dearborn Fabricating & Eng’g
Corp. v. Wickham, 551 N.E.2d 1135, 1139 (Ind. 1990); Durepo v. Fishman, 533 A.2d
264, 264 (Me. 1987); Monias v. Endal, 623 A.2d 656, 661 (Md. 1993); Salin v.
Kloempken, 322 N.W.2d 736, 737 (Minn. 1982); Thompson v. Love, 661 So. 2d 1131,
1131-32 (Miss. 1995); Powell v. Am. Motors Corp., 834 S.W.2d 184, 186 (Mo. 1992);
Guenther v. Stollberg, 495 N.W.2d 286, 289 (Neb. 1993); Gen. Elec. Co. v. Bush, 498
P.2d 366, 371 (Nev. 1972); Harrington v. Brooks Drugs, 808 A.2d 532, 534 (N.H. 2002);
Russell v. Salem Transp. Co., 295 A.2d 862, 863 (N.J. 1972); DeAngelis, 449 N.E.2d at
407; Vaughn v. Clarkson, 376 S.E.2d 236, 238 (N.C. 1989); Butz v. World Wide, Inc.,
492 N.W.2d 88, 93 (N.D. 1992); Norwest v. Presbyterian Intercommunity Hosp., 652
P.2d 318, 319 (Ore. 1982); Steiner v. Bell Tel. Co., 517 A.2d 1348, 1349 (Pa. Super. Ct.
1986); Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn. 2003). In an additional three states,
39
the parties who may claim loss of consortium damages in cases of nonfatal injury are
limited by statute and do not include emancipated adults, see Fla. Stat. § 768.0415
(2014); R.I. Gen. Laws § 9-1-41 (2014); S.C. Code Ann. § 15-75-20 (2013), and one
state, Utah, recognizes no independent causes of action for loss of consortium, Boucher v.
Dixie Med. Ctr., 850 P.2d 1179, 1184-85 (Utah 1992). In all, an adult’s cause of action
for loss of consortium with an injured parent is precluded in 30 states. This is not an
undeveloped area of law in which persuasive authority is lacking. The “trend” referred to
by the Opinion, ¶ 32, and the “legal commentary” cited by the Concurrence, ¶ 41, are
decidedly in the minority.
¶64 Furthermore, the decisions of other states cited by the Court do not necessarily
support its position. As noted, the Iowa Supreme Court relied on a statutory right to
recover damages for loss of parental services and support. Audubon-Exira Ready Mix,
Inc., 335 N.W.2d at 152. In fact, the court later declined to allow the parents of a
deceased adult to bring an independent cause of action for loss of consortium or to claim
loss of consortium damages in their wrongful death suit, in the absence of an existing
statutory or common law right. Kulish v. W. Side Unlimited Corp., 545 N.W.2d 860,
862-63 (Iowa 1996). Two of the cases which the Court notes we relied on in Pence,
Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991, 997 (Alaska 1987), and Villareal
v. Arizona Department of Transportation, 774 P.2d 213, 215 (Ariz. 1989), addressed only
claims brought by minor children, and are not persuasive in our consideration of a claim
brought by an adult.
40
¶65 The Court also cites a Tennessee case, Jordan v. Baptist Three Rivers Hospital,
984 S.W.2d 593, 596 (Tenn. 1999), which interpreted that state’s wrongful death statutes,
but fails to observe that the Jordan court “express[ed] no opinion as to whether the loss
of parental consortium may be recovered in personal injury actions in which the parent or
parents survive.” Indeed, in a later case, the Tennessee Supreme Court “decline[d] to
create a common law cause of action for loss of parental consortium in personal injury
cases.” Taylor, 104 S.W.3d at 511. In so doing, the court reasoned:
In our view, the appellants do not simply request that we remove an
impediment to the continual development of the common law, nor do they
ask us to interpret an ambiguous statutory or constitutional provision.
Rather, the appellants ask this Court to declare the public policy of this
State by creating a previously unrecognized common law cause of action in
an area where the legislature has taken action.
Taylor, 104 S.W.3d at 510-11. I believe we face the same circumstance in this case.
Because I can find no existing legal right which has been violated, Duffy, 200 F. Supp. at
72, I do not join the Court in declaring that an adult may bring a cause of action for the
loss of consortium with his or her injured parent.
¶66 In addressing whether an adult has a cause of action in such circumstances, the
Concurrence observes that independent loss of consortium claims “spring from the
common law,” and thus do not require the existence of a statutory right. Concurrence,
¶ 39. Any cause of action, however, requires a legal right on the part of the plaintiff.
Dillon, 38 Mont. at 496, 100 P. at 963. Sadee Stucky’s cause of action for loss of
parental consortium does not have to be founded on a statute, but it does have to be
founded on a legal right to the affection and society of her father. A minor child has a
41
legal right to receive emotional and physical care from a parent. C.M.S., 187 Mont. at
122-24, 609 P.2d at 243-45. A spouse has a legal right to the aid, protection, affection
and society of the other spouse. Bain, 223 Mont. at 445, 726 P.2d at 1155. An adult—
even a young adult—has no legal right to continue to receive the affection and society of
a parent. Parental support is nice to have, but it is not a legal entitlement. The “inherent
filial right” referred to by the Concurrence, ¶ 47, is not found anywhere in our law.
Absent a legally cognizable right, a cause of action cannot be stated. Dillon, 38 Mont. at
496, 100 P. at 963.
¶67 The Concurrence states that “there are significant legal and policy reasons” to
allow an adult to bring a cause of action for loss of consortium with an injured parent.
Concurrence, ¶ 39. Despite this assertion, the Concurrence provides no Montana
precedent establishing the legal right at issue. Instead, the Concurrence cites “legal
commentary” favoring increased recognition of children’s rights. Concurrence, ¶¶ 40,
43, 46. Children’s rights are not at issue here. There is no impediment to the ability of
an eighteen-year-old woman to bring a legal action, provided she has suffered legal
injury.
¶68 To that end, the Concurrence also cites cases and commentary stating that injured
persons should be compensated for their losses. Concurrence, ¶ 45. The sources cited,
however, refer to persons who have been directly injured. When we are asked to define
the category of injured persons, it does not advance that inquiry to state that an injured
person is entitled to compensation. Liability must end somewhere; a line must be drawn.
42
In recognizing an “inherent filial right” rather than a legally cognizable one, we blur this
line to the point where it may no longer exist. As the Connecticut Supreme Court has
recognized:
In the constellation of family relationships, there are other formally
recognized relationships—e.g., siblings, grandparent and grandchild, and
aunt or uncle and nephew or niece—and others, less formally recognized
but nonetheless just as real in an emotional sense—e.g., stepsiblings, and
stepchild and stepparent—that could well, depending on the case, present
equally strong claims of loss of consortium.
Mendillo, 717 A.2d at 1191. Following our decision today, can we draw any coherent
distinction between these relationships in future cases, when a loved one claims an
“inherent right” to the society of an injured person?
¶69 In its broad statements about the function of loss of consortium claims to address
“injuries to emotional well-being,” the Concurrence seems to suggest that every instance
of grief or sadness, by definition it would seem, presents a legally cognizable injury.
Concurrence, ¶ 42. There is no generalized right to emotional well-being. We have
recognized that “[t]he loss of or serious injury to a child, whether an adult or a minor, is
no doubt a traumatic experience, but it is one experienced by countless parents every
year.” Renville, ¶ 15. In spite of this, “‘life goes on.’” Renville, ¶ 15. The same is true
when a young adult experiences the loss of or serious injury to a parent.
¶70 As far as the “policy reasons” alluded to, the Concurrence concludes that “the law
should not impose such an artificial extinguishment when it comes to the inherent filial
right to a parent’s affection, aid, and society.” Concurrence, ¶ 47. Yes, the age of
majority is a legal concept, arbitrarily set at 18 years rather than 19, 16, or 21. That is
43
not, in itself, reason to deprive it of legal significance. The Concurrence advocates a
policy of indefinite childhood. This, too, is bad policy. The law should promote
independence in young adults, rather than vesting in them the legal right to have a parent
attend to their intangible needs.
¶71 I feel sympathy for Sadee Stucky and her family, and I admire the close
relationship Calvin Stucky built with his daughters. Embarking on an independent adult
life is a challenging endeavor, and without question, Sadee’s path has been made even
more challenging by this family hardship. Absent a legally cognizable right, however, I
do not believe this Court should create a new cause of action simply to fit the present
circumstances.
¶72 If the Court is to recognize such a cause of action, I believe we must clearly define
the evidentiary standard to be applied. We must first recognize the distinction between
the evidentiary standards we have applied to independent causes of action for loss of
consortium and those for determining “just” damages pursuant to the wrongful death
statute. In Keele, we held that a minor child bringing a cause of action for loss of
consortium with an injured parent must establish that the parent has suffered a serious,
permanent and disabling mental or physical injury compensable under Montana law, and
that the parent’s ultimate condition of mental or physical impairment must be so
overwhelming and severe that it causes the parent-child relationship to be destroyed or
nearly destroyed. 258 Mont. at 162, 852 P.2d at 577. Keele required no proof of the
nature of the relationship between parent and child, only the degree of injury. This was
44
appropriate because the child was a minor, and close dependence could therefore be
presumed. In Hern, we held that a parent claiming damages for loss of consortium with a
deceased adult child in a wrongful death action must present significant evidence of an
extraordinarily close and interdependent relationship. Hern, ¶ 58. Hern required no
proof of the degree of injury or harm to the relationship. Again, this was appropriate
because in a wrongful death, there could be no question that the relationship was
destroyed.
¶73 In this case, the party claiming loss of parental consortium is not a minor child,
and so a relationship of close dependence cannot be presumed. Similarly, because the
injuries are non-fatal, we must require proof of the degree of injury and the resulting
damage to the parental relationship. In short, neither the Keele standard nor the Hern
standard is appropriate on its own. The Opinion claims to adopt the Keele standard, but
in addition to requiring the two elements stated under Keele, states that “the plaintiff may
present evidence of factors including . . . the actual effect the parent’s injury has had on
the relationship and is likely to have in the future; the child’s age; the nature of the
child’s relationship with the parent; and the child’s emotional, physical, and geographic
characteristics.”4 Opinion, ¶ 38 (emphasis added). In Hern, we recognized that
consideration of the nature of the relationship between an adult and his or her parent was
necessary when addressing a claim for loss of consortium damages. The Court seems to
find that consideration appropriate here, to some degree—but doesn’t actually require
4
The “geographic characteristics” of the plaintiff presumably refer to “where the plaintiff
physically resides in relation to the injured parent.”
45
any evidence of the nature of the relationship, and provides no guidance on the minimum
showing a plaintiff must make to have the cause of action presented to a jury. Opinion,
¶ 38.
¶74 The “standard” enunciated by the Court is not only legally confusing and
inadequate, it draws a wholly unsupported distinction between the rights of a parent and
the rights of an adult son or daughter in identical circumstances. The Court rejects the
Hern standard, which we have already applied to the relationship between an adult and
his or her parent in the context of a wrongful death action. Opinion, ¶¶ 35-36. Instead,
the Court claims to apply the standard we set out for an independent loss of consortium
claim by a minor child in Keele, concluding there is “no reason to adopt a different
standard” when the plaintiff is an adult. Opinion, ¶ 36. The Court reasons that “it is only
the age of the child that is different,” Opinion, ¶ 36, inexplicably ignoring the fact that
age is precisely what makes the difference, legally, between a child and an adult. Section
41-1-101, MCA. It is not “only the age of the child” at issue: it is the fact that at a certain
age, one is no longer a child. Under the law, that is reason enough to adopt a different
standard. See, e.g., Mode v. Barnett, 361 S.W.2d 525, 530 (Ark. 1962) (“The adult child
who loses a parent is generally better able to withstand the blow than a minor child whose
close and constant association with the parent in the home creates considerably more of a
binding tie.”); Smith, 57 S.W.3d at 843 (“[T]here is a legitimate basis for limiting
recovery for loss of parental consortium to minor or unemancipated children.”); Theama,
46
344 N.W.2d at 522 (“[T]he minor is one whose relationship is most likely to be severely
affected by a negligent injury to the parent.”).
¶75 The Court declares that “an adult child’s reliance on a parent for guidance and
support is likely different from the parent’s reliance on a child that we discussed in Hern.
No ‘extraordinarily close and interdependent relationship’ is required for an adult child to
be harmed, or even devastated, by the effective loss of a close parent-child relationship.”
Opinion, ¶ 38. Setting aside the circuitous statement that a close relationship is not
required for one to be devastated by the loss of a close relationship, the Court implies that
a parent is comparably unlikely to be devastated by the loss of a close relationship with
an adult son or daughter. The Court presents no support for this assertion. I find equal
arguments to the contrary: in the course of life, it is natural and expected that one will
eventually suffer the loss of one’s parents. It is not expected, at any age, that one will
lose a child. It is not for this Court to categorically declare one loss more devastating
than the other.
¶76 In defining the standard to govern an adult’s cause of action for loss of consortium
with a non-fatally injured parent, if the Court should recognize such a cause of action, I
would uphold the standard we have previously applied to the parent-child relationship
when it exists between two adults, and require evidence of an extraordinarily close and
interdependent relationship. Hern, ¶ 58. Because a non-fatal injury is involved, I would
also require proof that the parent has suffered a serious, permanent and disabling mental
or physical injury compensable under Montana law, and that the parent’s ultimate
47
condition of mental or physical impairment must be so overwhelming and severe that it
causes the parent-child relationship to be destroyed or nearly destroyed. Keele, 258
Mont. at 162, 852 P.2d at 577. Requiring the plaintiff to demonstrate the severity and
genuineness of his or her injury as a threshold matter is also consistent with our approach
to causes of action for other intangible injuries, such as emotional distress. See Sacco v.
High Country Indep. Press, 271 Mont. 209, 232, 896 P.2d 411, 425 (1995).
¶77 For the reasons stated above, I dissent.
/S/ LAURIE McKINNON
48