By Alex Stein
Yes, those damages are now available. The Connecticut Supreme Court decision that affirmed their availability, Mueller v. Tepler, — A.3d —- (Conn. 2014), was widely anticipated.
Back in 2008, this Court ruled that the state’s marriage laws were unconstitutional to the extent they barred same-sex couples from marrying. Kerrigan v. Comm’r Pub. Health, 957 A.2d 407 (Conn. 2008). Four weeks ago, the Court decided that a same-sex spouse can sue a tortfeasor for lost consortium under the same conditions that allow heterosexual spouses to file and successfully prosecute such actions. This decision was delivered in a medical malpractice case involving a patient whose cancer of the appendix was misdiagnosed as ovarian cancer. When this mistake was discovered, the patient’s cancer became incurable and she subsequently passed away.
Her lesbian spouse sued the negligent physician for lost consortium. The defendant moved to dismiss the suit arguing that lost-consortium damages are recoverable only by a plaintiff who had a marital relationship with the tort victim. This motion was supported by precedent: Gurliacci v. Mayer, 590 A.2d 914 (Conn. 1991) (holding that “the formal marriage relation forms the necessary touchstone to determine the strength of commitment between the two individuals which gives rise to the existence of consortium between them in the first instance”). The defendant also cited the Massachusetts Supreme Judicial Court decision, Charron v. Amaral, 889 N.E.2d 946 (Mass. 2008), that denied lost-consortium damages to a same-sex spouse.
The Supreme Court of Connecticut disagreed with the defendant and the Charron decision. Following Kerrigan v. Comm’r Pub. Health, it ruled that a tort victim’s same-sex spouse can sue the tortfeasor for lost consortium. This entitlement, it explained, is dictated by the fact that “society has come to accept the view that committed same sex couples who wish to marry are entitled to the same social and legal recognition as committed opposite sex couples who wish to marry.” The Court clarified, however, that an entitlement to consortium damages does not arise as a matter of course. To establish it, the spouse must affirmatively plead and subsequently prove that she and the victim “would have been married or in a civil union if they had not been barred from doing so under the laws of [the] state.”
The Court gave no indications on how to prove this counterfactual scenario, but it seems safe to assume that evidence showing a stable and committed relationship that includes cohabitation will suffice. Under the post-Kerrigan regime, of course, compensation for lost consortium would only be recoverable by a married same-sex spouse.
This is a very good, well reasoned, and as I said at the outset, much anticipated decision.