2008 Ct. Sup. 8358, 45 CLR 569
No. X10-UWY-CV-0705005102SConnecticut Superior Court Judicial District of Waterbury at Waterbury
May 14, 2008
MEMORANDUM OF DECISION RE DEFENDANTS’ MOTIONS TO STRIKE (#144, 145, 146, 148)
JANE S. SCHOLL, JUDGE.
The Plaintiffs, Judy Rettig and Christine Santoro, bring this action against the Defendants for damages arising out of injuries sustained by Rettig on January 9, 2005, when she allegedly slipped on a patch of black ice that had formed on the driveway of the District Animal Control (“DAC”), where she worked, at 135 Bradley Road in Woodbridge. The DAC is alleged to be in the care, custody, and control of the Defendant towns, Woodbridge, Bethany, Orange, and Prospect, which created the DAC. The Defendants, Warren Connors, Robert Chatfield, Edwin Lieberman, and Clifford Rossom, are alleged to have been in charge of re-paving the property. The Defendant, Advanced Paving Excavating, Inc., is alleged to have contracted with Woodbridge to re-pave Bradley Road. The remaining individual Defendants, Amey Marrella, Judith Schwartz, Joseph Calistro, Christian Sorenson, James Sabshin, Edwin Sheehy, and Steven Bortner of Woodbridge; Mitchell Goldblatt, James Zeoli, Joseph Blake, Richard Meisenheimer, Dorothy Berger, Ralph Okenquiest, Patricia Pearson, and Roy Cuzzocreo of Orange; Derrylyn Gorski, Steven Thornquist, and Walter Briggs of Bethany, are alleged to have the authority, on behalf of their respective towns, to decide whether to make the driveway safe. Rettig alleges that the Defendants failed to repair the unsafe driveway or to sand or salt it. Rettig asserts that the injuries that she sustained as a result of her fall are debilitating, and have caused her a permanent loss of earning capacity and drastically diminished her ability to enjoy life’s activities.
The Plaintiff, Christine Santoro, alleges that she and Rettig have lived together as life partners for more than twenty-five years. She alleges that “[t]heir lives are filled with evidence that their relationship is the same as a marital relationship in every way that has any sensible connection to the availability of a claim for loss of consortium.” For example, she alleges that they jointly own real property, cars, and bank accounts. Santoro alleges that each Plaintiff has named the other as heir in her will, agent for healthcare purposes, CT Page 8359 and beneficiary for purposes of insurance and pensions. Santoro claims that the Plaintiffs would have entered into a civil union or marriage prior to the date of Rettig’s injury had they been legally allowed to do so. Santoro alleges that on April 9, 2006, the Plaintiffs were joined in a civil union under Connecticut’s Civil Union Statute, §§ 46b-38aa, et seq. Santoro claims that as a result of Rettig’s fall and resulting injuries she has lost the care, companionship, and consortium of Rettig, her civil union partner.
The Defendants have filed Motions to Strike Santoro’s loss of consortium claims set forth in Counts Two, Four, Six, Eight, Ten, Twelve, Fourteen, Sixteen, Eighteen, Twenty[1] and Twenty-two on the grounds that the Plaintiffs were not married or joined in a civil union at the time of the injury and therefore the loss of consortium claims should be stricken. The Plaintiffs argue that, because the law, prior to October 1, 2005, created a legal impossibility of the spousal relationship necessary to maintain a loss of consortium claim, the court should deny the Defendants’ Motion to Strike.
“Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . that party may do so by filing a motion to strike the contested pleading . . . Practice Book § 10-39(a) . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks and citations omitted.). Tracy v. New Milford Public Schools, 101 Conn.App. 560, 563 (2007).
The Plaintiffs argue that the right to recover for loss of consortium is a common-law right, both created and limited by judicial decisions, and that its boundaries are fixed by consideration of sound public policy and that the public policy that restricted its application to opposite sex married couples has been repudiated. They argue that “under these unique circumstances, allowing Ms. Santoro to recover for her loss of consortium is required by all the policy reasons that are the basis of the common-law right and is consistent with all the prudential considerations that limit the scope of that right.” (Plaintiff’s Memorandum in Opposition to Motions to Strike, p. 2.) They ask the court to adopt a common-law rule “to allow loss of consortium claims for spouses, including those who were not spouses at the time of the original injury olely because of legal impossibility arising from a public policy that has now been repudiated.” (Id., p. 15.) Thus the CT Page 8360 Plaintiffs ask this court to recognize a cause of action pursuant to common law for loss of consortium by a partner who would have been married or joined in a civil union at the time of the other partner’s injury but for the legal impossibility of that marriage or civil union on the date of injury. This would require the court to employ an analysis in which the court determines first, that the Plaintiffs, but for, the legal impossibility of their joining in a civil union on or before the date of injury, would have done so; and second, that the legislature’s repudiation of the prohibition against same sex civil unions applies retroactively.
As to the first part of the court’s inquiry, for purposes of the motions to strike, the Plaintiffs argue, and the court agrees, it must take their allegations that “[t]he sole reason that they have not legally married is that they were prohibited by law from doing so” and that they “would have entered into a civil union or marriage prior to January 2005 had they been legally allowed to do so” and that “[h]ad they been allowed to marry or join in a civil union before January 9, 2005 they would have done so,” as true.
As to the second part of the inquiry, that is, whether the legislative policy set forth in the civil union statutes should be applied retroactively, the Plaintiff Santoro’s claim must not be considered solely on the basis of a common-law analysis, as she argues, but with due consideration of the public policy set forth in the statutes as well. Although common law evolves with the changing times, it is not fashioned solely in that context, but is shaped consistent with the policy considerations set forth by our legislature. “[T]he common law of today is not a frozen mold of ancient ideas, but such law is active and dynamic and thus changes with the times and growth of society to meet its needs . . . It has not been the policy of this court to close its eyes to change or to disregard reality . . . Principles of law which serve one generation well may, by reason of changing conditions, disserve a later one . . . The adaptability of the common law to the changing needs of passing time has been one of its most beneficent characteristics . . . The flexibility and capacity of the common law is its genius for growth and adaptation.” (Internal quotation marks and citations omitted.) State v. Guess, 244 Conn. 761, 775-76 (1998). However, “[j]ust as the legislature is presumed to enact legislation that renders the body of the law coherent and consistent, rather than contradictory and inconsistent . . . courts must discharge their responsibility, in case by case adjudication, to assure that the body of the law — both common and statutory — remains coherent and consistent . . . we have previously used statutes as a useful source of policy for common law adjudication, particularly if there was a close relationship CT Page 8361 between the statutory and common law subject matters . . . Statutes are now central to the law in the courts, and judicial lawmaking must take statutes into account virtually all of the time . . . More often, the issue is rather to what extent a statute is itself a source of policy for consistent common law development.” (Internal quotation marks and citations omitted.) Fahy v. Fahy, 227 Conn. 505, 514 (1993). Thus, although the Plaintiffs claim that their argument rests on the common law and not on statutory interpretation, the statutes which set forth the rights of parties to a civil union cannot be ignored.
The Civil Union Act, in particular General Statutes § 46b-38nn, effective October 1, 2005, provides that: “Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman.” Prior to October 1, 2005, our jurisprudence had clearly defined the common-law loss of consortium cause of action as one that arises out of the existence of a spousal relationship at the time of the injury. In Gurliacci v. Mayer, 218 Conn. 531, 563-64 (1991), Louis Gurliacci sought to recover for loss of consortium stemming from his wife’s injuries which resulted from an accident which occurred while they were engaged and cohabiting but before they were married. In rejecting his claim, the Court stated: “The language and reasoning in Hopson [v. St. Mary’s Hospital, 176 Conn. 485
(1979)], focus on the marital relationship as it existed on the date of the injury. There is no indication in Hopson or later Connecticut decisions . . . to support Louis Gurliacci’s claim that a person who is not married to the victim of the tort at the time of the injury may, upon marriage, bring a claim for loss of consortium. To the contrary, the language of Hopson, providing that should the victim be married . . . implicitly limits such actions to situations where the victim was married at the time of the alleged incident. Furthermore, virtually all of the jurisdictions that have considered the question . . . take the position that [a]n action for loss of consortium cannot be maintained unless the plaintiff was married to the injured person at the time of the actionable conduct . . . The rationale behind this requirement is 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 . . . We agree with this rationale, and conclude, consistent with our prior case law, that a cause of action for loss of consortium does not exist where the injury occurred prior to the marriage of the parties.” (Footnotes omitted; internal quotation marks and citations omitted.) This holding has been applied even in a case in which the CT Page 8362 sequella of an injury sustained before marriage did not manifest itself until after the marriage. Gross v. Sauer, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 378358 (Aug. 14, 1992, Wagner, J.) [7 Conn. L. Rptr. 235]. Thus, as of the time of the adoption of our civil union statute, a cause of action for loss of consortium only existed where the parties were married on the date of injury.
The Plaintiff Santoro argues that she should be allowed to pursue a claim for loss of consortium because she would have been joined in a civil union with Rettig at the time of the injury but for the legal impossibility of such a union at that time. Acceptance of the Plaintiffs’ argument would have the court essentially apply the civil union statutes retrospectively, where the legislature has not seen fit to do so. The Civil Union Act, Public Act No. 05-10, was approved April 20, 2005, and effective October 1, 2005. There is nothing in the act that indicates that it is to apply retroactively. “Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute . . . In order to determine the legislative intent, we utilize well established rules of statutory construction. Our point of departure is General Statutes § 55-3, which states: No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect. The obligations referred to in the statute are those of substantive law . . . Thus, we have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only . . . The rule is rooted in the notion that it would be unfair to impose a substantive amendment that changes the grounds upon which an action may be maintained on parties who have already transacted or who are already committed to litigation . . . In civil cases, however, unless considerations of good sense and justice dictate otherwise, it is presumed that procedural statutes will be applied retrospectively . . . Procedural statutes have been traditionally viewed as affecting remedies, not substantive rights, and therefore leave the preexisting scheme intact . . . [A]lthough we have presumed that procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary . . . a statute which, in form, provides but a change in remedy but actually brings about changes in substantive rights is not subject to retroactive application . . . While there is no precise definition of either [substantive or procedural law], it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress . . . Put differently, substantive changes to statutes in the absence of CT Page 8363 any clear expression of legislative intent to the contrary [are] presumptively prospective.” (Footnote omitted; internal quotation marks and citations omitted.) Walsh v. Jodoin, 283 Conn. 187, 195-6 (2007). The civil union statute contains no provision for retroactive application, and clearly effects substantive rights. Therefore it cannot be construed to apply retroactively.
Holding that a claim for loss of consortium cannot be made where the Plaintiffs were not joined in marriage or a civil union at the time of the injury is consistent with our jurisprudence that the “[s]ubstantive rights of the parties are fixed at the date upon which the cause of action accrued . . . In Connecticut, a cause of action accrues when a plaintiff suffers actionable harm . . . Actionable harm occurs when the plaintiff discovers or should discover, through the exercise of reasonable care, that he or she has been injured and that the defendant’s conduct caused such injury.” Champagne v. Raybestos — Manhattan, Inc., 212 Conn. 509, 521 (1989). Loss of consortium is a cause of action which accrues on the date of injury. Hinde v. Butler, 35 Conn.Sup. 292, 293 (1979).
General Statutes § 46b-38nn give parties to a civil union the same benefits under common law available to spouses in a marriage. A spouse in a marriage who was not married at the time of an injury to the other spouse does not have a common law claim for loss of consortium. Thus a party to a civil union does not have a claim for loss of consortium resulting from injuries to the other party to the civil union which occurred prior to their entering into the civil union.
Here the date of the injury is January 9, 2005. At that time Santoro was not joined in a civil union with Rettig. Because the injury preceded the civil union, the Plaintiff Santoro cannot pursue a claim for loss of consortium.
Therefore, for the reasons stated above, the Motions to Strike are granted.
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