Justia.com Opinion Summary: Plaintiff and his wife (Wife) sued Defendant for negligence and loss of consortium after Defendant's vehicle struck Plaintiff's vehicle and injured Wife. Wife subsequently withdrew her claims pursuant to a settlement agreement she entered into with Defendant, and Plaintiff withdrew his negligence claim. The trial court rendered judgment for Defendant on Plaintiff's remaining claim, concluding that Plaintiff's loss of consortium claim was barred by the settlement of Wife's negligence claim. The Supreme Court affirmed, holding (1) pursuant to legally binding precedent, because a consortium claim is derivative of the injured spouse's cause of action, the consortium claim is barred when the suit brought by the injured spouse has been terminated by settlement; and (2) strong policy reasons support the application of this rule to claims such as Plaintiff's.
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JOHN G. VORIS ET AL. v. PETER M. MOLINARO
(SC 18435)
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Vertefeuille and
Harper, Js.*
Argued January 14—officially released November 22, 2011
Paul L. Bollo, for the appellant (named plaintiff).
J. Kevin Golger, for the appellee (defendant).
Kathryn Calibey filed a brief for the Connecticut
Trial Lawyers Association as amicus curiae.
Jack G. Steigelfest and Rachel J. Fain filed a brief
for the Connecticut Defense Lawyers Association as
amicus curiae.
Linda L. Morkan and Wystan M. Ackerman filed a
brief for the Insurance Association of Connecticut et
al. as amici curiae.
Opinion
McLACHLAN, J. The dispositive issue in this appeal
is whether a claim for loss of consortium is barred by
the settlement of the underlying negligence claim.1 We
conclude that it is. The plaintiff2 John G. Voris appeals
from the judgment of the trial court granting the motion
to strike by the defendant, Peter M. Molinaro.3 The
plaintiff contends that: (1) a claim for loss of consortium
may be maintained independently of the underlying
injury claim; and (2) a settlement of the underlying
injury claim does not bar the related claim for loss of
consortium. We disagree, and affirm the judgment of
the trial court.
The complaint alleges the following facts: On May
10, 2004, the plaintiff was driving his motor vehicle,
while his wife, Joan Voris (Voris), rode in the passenger
seat. The defendant, who was driving his motor vehicle,
struck the plaintiff’s vehicle on the passenger side. As
a result of the collision, Voris sustained severe injuries
to her back and spine. She has been bedridden for
extended periods of time, unable to walk long distances,
and unable to complete her household duties. She
requires epidural/faucet block treatments for the pain
from her injuries. In addition, the plaintiff sustained
severe injuries to his neck, back and spine. He has
been experiencing pain and has difficulty completing
household chores. The plaintiff and Voris brought this
action together, each asserting two counts—one for
negligence, in connection with their direct injuries, and
one for loss of consortium due to the other’s injuries.
On September 8, 2008, Voris executed a release pursuant to a settlement agreement that she had entered into
with the defendant. Consistent with that agreement,
on January 30, 2009, she withdrew both of her claims
against the defendant. On the same day, the plaintiff
withdrew his negligence claim, leaving his claim for
loss of consortium as the sole remaining count of the
complaint. The trial court granted the defendant’s
motion to strike the remaining count, relying on Hopson
v. St. Mary’s Hospital, 176 Conn. 485, 494, 408 A.2d 260
(1979), to conclude that the plaintiff’s loss of consortium claim was barred by the settlement of Voris’ negligence claim.4 The trial court rendered judgment for the
defendant and this appeal followed.
The plaintiff contends that a loss of consortium claim
is a separate cause of action that may be maintained
independently of the direct injury claim on which it
is based. The defendant responds that the consortium
claim is derivative of the direct injury action and therefore is barred by settlement of that action. The defendant relies on our statement in Hopson that ‘‘because
a consortium action is derivative of the injured spouse’s
cause of action, the consortium claim would be barred
when the suit brought by the injured spouse has been
terminated by settlement . . . .’’ Id. Contending that
our statement in Hopson is dicta and lacks precedential
value, the plaintiff urges us to rely on case law from
other jurisdictions to conclude that the consortium
claim survives the settlement of the predicate action.
Because we conclude that our subsequent decisions
that have consistently applied the principle that we first
expressed in Hopson are controlling, legally binding
precedent, we agree with the defendant and affirm the
judgment of the trial court.
In Hopson, we reversed our long-standing rule, set
forth in Marri v. Stamford Street Railroad Co., 84 Conn.
9, 24, 78 A. 582 (1911), that had precluded the recognition of claims for loss of consortium. In overturning
our prior precedent and articulating the new rule, we
defined consortium as ‘‘encompassing the services of
the wife, the financial support of the husband, and the
variety of intangible relations which exist between
spouses living together in marriage. [W.] Prosser, Torts
(4th Ed. 1971) § 124, pp. 881–82. These intangible elements are generally described in terms of affection,
society, companionship and sexual relations. . . .
These intangibles have also been defined as the constellation of companionship, dependence, reliance,
affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of
marriage.’’ (Citation omitted; internal quotation marks
omitted.) Hopson v. St. Mary’s Hospital, supra, 176
Conn. 487. As we ordinarily do when we recognize a
new cause of action, we outlined its contours, in light
of our reconsideration of the relevant public policies.
Id., 490–94. One of the public policy concerns that
weighed against recognizing the cause of action was
the risk of double recovery. Id., 492. We rejected that
concern as a basis for not recognizing the new cause
of action, in part because of our conclusion that a ‘‘consortium claim would be barred when the suit brought
by the injured spouse has been terminated by settlement
or by an adverse judgment on the merits.’’ Id., 494.
Although we subsequently have characterized that
statement as dicta, we consistently have relied on it in
deciding subsequent cases. In Ladd v. Douglas Trucking Co., 203 Conn. 187, 190–91, 523 A.2d 1301 (1987),
we concluded that in a wrongful death action a surviving
spouse may recover for antemortem loss of consortium,
but may not recover for postmortem loss of consortium.
Id., 197. Relying both on Hopson’s characterization of
a loss of consortium action as derivative and on our
statement in Hopson that a loss of consortium claim is
barred by the settlement of the predicate cause of
action, we rejected the plaintiff’s contention that our
decision in Hopson would support the recovery of damages for postmortem loss of consortium. Id., 195.
In Jacoby v. Brinkerhoff, 250 Conn. 86, 735 A.2d 347
(1999), we again relied on the principle first expressed
in Hopson. In Jacoby, the plaintiff sought damages for
loss of consortium in connection with his allegations
that the defendant, a psychiatrist, had committed medical malpractice in treating the plaintiff’s former wife.
Id., 87. The plaintiff’s former wife had not initiated an
action on her own behalf and refused to join in the
plaintiff’s action. Id., 89. We rejected the plaintiff’s claim
that joinder should be excused because his former
wife’s refusal to join had rendered joinder impossible.
Id., 90. We considered the question of whether joinder
of the consortium claim with the predicate claim should
be required, and found that question to be inextricably
linked to the question of whether the settlement of a
predicate action would bar the derivative consortium
action.5 Id., 91. We explained that the public policy
concerns implicated by both questions are the same,
namely, limiting the risk of multiple actions or double
recoveries stemming from the same transaction. Id. We
observed that we could ‘‘discern no viable distinction
between precluding a consortium claim when the
injured spouse has settled with the alleged tortfeasor
and precluding it when the injured spouse, as in this
case, has declined altogether to sue the alleged tortfeasor.’’ Id. Both rules result from the derivative nature of
a claim for loss of consortium. Id., 91–92. We concluded,
therefore, that the dicta in Hopson regarding the settlement of the predicate claim functions as a ‘‘roadblock
to the plaintiff’s claim for recovery . . . .’’ (Emphasis
added.) Id., 91.6 Our consistent reliance in both Ladd
and Jacoby on the principle articulated in Hopson—
that the settlement of the predicate claim extinguishes
the derivative claim for loss of consortium—makes
clear that this rule is the governing law in Connecticut.
Therefore, the trial court properly granted the defendant’s motion to strike in the present case.7
Although we repeatedly have articulated and relied
on the principle that the settlement of the underlying
injury claim bars the derivative action for loss of consortium, we recognize that neither Hopson, Jacoby, nor
Ladd had a procedural posture identical to the present
one. Accordingly, we take this opportunity to articulate
the strong policy reasons that support the application
of this rule to claims such as the plaintiff’s. The same
rationale that mandates the joinder of loss of consortium claims with the claims of the directly injured party
also should apply to bar a claim for loss of consortium
once the predicate action has been settled.8
First, when the claims are not resolved together, there
is a greater probability of overlapping damages awards.
The concept of marital consortium encompasses services, support ‘‘and the variety of intangible relations
which exist between spouses living together in marriage.’’ Hopson v. St. Mary’s Hospital, supra, 176 Conn.
487. Consortium has been described variously as
‘‘affection, society, companionship and sexual relations’’ or ‘‘the constellation of companionship, depen-
dence, reliance, affection, sharing and aid . . . .’’
(Internal quotation marks omitted.) Id. Because the
experiences comprising consortium are not specific to
either party to a marriage, ‘‘damages to a marital relationship are frequently inextricably intertwined with
the harm sustained by the injured spouse. . . . [M]arital interests are in reality . . . interdependent [and]
injury to these interests is . . . essentially incapable
of separate evaluation as to the husband and wife.’’
(Internal quotation marks omitted.) Oaks v. Connors,
339 Md. 24, 37, 660 A.2d 423 (1995). Given that interdependence, ‘‘there is some risk that a jury hearing the
[injured spouse’s] claim will consciously or not, include
something in the verdict for the [deprived spouse’s]
loss as well, and vice versa.’’ W. Prosser & W. Keeton,
Torts (5th Ed. 1984) § 125, p. 933. In Hopson, we recognized this danger and, therefore, acknowledged the wisdom of trying both claims together ‘‘before a single trier
of fact.’’ Hopson v. St. Mary’s Hospital, supra, 494.
Allowing a loss of consortium claim to proceed alone
following the settlement of the injured spouse’s claims
would ignore this important safeguard.9
Second, ‘‘[i]t is inherent in the nature of a derivative
claim [such as loss of consortium] that the scope of
the claim is defined by the injury done to the principal.’’
Jacoby v. Brinkerhoff, supra, 250 Conn. 93. Accordingly,
the loss of consortium claim ‘‘is lost, diminished or
barred when the injured person’s claim is so affected.’’
2 D. Dobbs, Law of Remedies (2d Ed. 1993) § 8.1 (5),
p. 401. When the claims become untethered from each
other, inconsistent outcomes may occur. Thus, the
claims are not necessarily resolved on the basis of the
sequela of the principal’s injury.
Third, requiring both claims to be resolved simultaneously promotes efficiency and conserves judicial
resources by protecting against the repeated litigation
of the same underlying issues. Buckley v. National
Freight, Inc., 220 App. Div. 2d 155, 158, 644 N.Y.S.2d
809 (1996), aff’d, 90 N.Y.2d 210, 681 N.E.2d 1287, 659
N.Y.S.2d 841 (1997). This is because, ‘‘[i]n order to subject a defendant to liability to a deprived spouse for
illness or bodily harm done to the impaired spouse, all
of the elements of a tort action in the impaired spouse
must [be proven to] exist, including the tortious conduct
of the tortfeasor, the resulting harm to the impaired
spouse and the latter’s freedom from such fault as
would bar a recovery by him or her, as for example,
contributory negligence.’’ 3 Restatement (Second),
Torts § 693, comment (e) (1977). By negotiating and
settling their claims, both an injured party and a tortfeasor hope to avoid the expense and uncertainty of litigating the tort action at trial and to resolve their dispute
once and for all. Allowing the loss of consortium claim
to proceed following the settlement of the injured party’s claim undermines these goals.10 Additionally,
because only a single ‘‘ ‘per person’ ’’ liability insurance
policy limit may be available to satisfy both the direct
injury and the accompanying loss of consortium claim;
see Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 312–
13, 524 A.2d 641 (1987); fairness dictates that both
claims should be evaluated and resolved together. Specifically, if, as happened in Izzo, the insurance carrier
settled for the full per person limit with the primary
plaintiff, the insurance policy would provide no coverage for the consortium claim.11 If we were to adopt the
plaintiff’s advocated rule and allow a consortium claim
to proceed following the settlement of the predicate
action, whenever a claim has been settled for the per
person limit with the directly injured person, an insured
would be left without coverage for the remaining consortium claim.12
The judgment is affirmed.
In this opinion NORCOTT, ZARELLA and HARPER,
Js., concurred.
* This case originally was argued before a panel of this court consisting
of Chief Justice Rogers and Justices Norcott, Palmer, Zarella, McLachlan
and Vertefeuille. Thereafter, Justice Harper was added to the panel, and he
has read the record and briefs and has listened to the recording of the
oral argument.
1
Following oral argument on January 14, 2011, the Connecticut Trial
Lawyers Association, the Connecticut Defense Lawyers Association, the
Insurance Association of Connecticut, the National Association of Mutual
Insurance Companies and the American Insurance Association submitted
amicus briefs in response to our invitation to do so.
2
Joan Voris also is a plaintiff in this action, but she withdrew her claims
against the defendant prior to trial pursuant to a settlement agreement. For
convenience, all references to the plaintiff in this opinion are to John G. Voris.
3
The plaintiff appealed from the decision of the trial court to the Appellate
Court and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
4
The trial court did not issue a written memorandum of decision on the
defendant’s motion, but instead, handwrote a brief summary of the basis
of its decision on the order granting the motion. The court then denied the
plaintiff’s motion to reargue, in which the plaintiff had argued that the
court’s cursory note did not clarify whether the court had considered the
arguments and authorities relied on by the plaintiff in its objection to the
motion to strike. In denying the motion, the court simply reiterated that
Hopson v. St. Mary’s Hospital, supra, 176 Conn. 494, controlled.
5
Stating that ‘‘even if we were persuaded that the absence of joinder
might be excusable sometimes,’’ we were not so persuaded under the facts
of Jacoby, and we left open the question of whether ‘‘joinder may be excused
if intervening events have made it impossible . . . .’’ That question is not
before us in this appeal. See generally 3 Restatement (Second), Torts § 693
(2) (1977).
6
Although dicta is not binding precedent; see, e.g., State v. DeJesus, 288
Conn. 418, 454 n.23, 953 A.2d 45 (2008); we may look to dicta as persuasive
authority, and, by relying on it in subsequent decisions, convert it to binding
precedent. That is precisely what happened to the Hopson dicta. ‘‘[Dicta]
includes those discussions that are merely passing commentary . . . those
that go beyond the facts at issue . . . and those that are unnecessary to
the holding in the case. . . . [I]t is not [dicta] [however] when a court . . .
intentionally takes up, discusses, and decides a question germane to, though
not necessarily decisive of, the controversy . . . . Rather, such action constitutes an act of the court [that] it will thereafter recognize as a binding
decision.’’ (Internal quotation marks omitted.) Cruz v. Montanez, 294 Conn.
357, 376–77, 984 A.2d 705 (2009). To support our conclusions in both Ladd
and Jacoby, we relied on the principle articulated in Hopson, that the settlement of the predicate action precludes an action for loss of consortium by
the spouse. In Jacoby in particular, we intentionally took up and discussed
the principle that we had articulated in Hopson, and relied on it as an
essential part of our rationale. At that point, the principle ceased to be dicta.
7
Because we conclude that our later decisions that cite to and rely on
the principle articulated in Hopson are binding, it is unnecessary for us
to address the plaintiff’s reliance on case law from other jurisdictions as
interpretive aids for understanding the import of our statement in Hopson.
As we have explained in this opinion, we already have interpreted that
statement as setting forth a legally binding rule of law—termination of the
predicate action by settlement bars the derivative consortium claim.
For that same reason, the plaintiff’s reliance on the Appellate Court’s
decision in Musorofiti v. Vlcek, 65 Conn. App. 365, 783 A.2d 36, cert. denied,
258 Conn. 938, 786 A.2d 426 (2001), is unavailing. Moreover, even if we were
to look to Musorofiti as persuasive authority, that decision is consistent
with and relies on our existing precedent in its analysis. In Musorofiti, the
Appellate Court reversed the judgment of the trial court in favor of the
defendants on the plaintiff wife’s loss of consortium claim, concluding that
the trial court improperly had refused to instruct the jury on the claim. Id.,
367. The court rejected the wife’s claim, however, that, because of the nature
of the two claims as ‘‘ ‘inextricably intertwined,’ ’’ the proper remedy was
a retrial on both her loss of consortium claim and her husband’s predicate
claim, and instead determined that the remand should be limited to a hearing
in damages on the wife’s claim for loss of consortium. Id., 369. In so concluding, Musorofiti recognized the derivative nature of a claim for loss of consortium and also recognized our established rule that ‘‘if an adverse judgment
or a settlement bars the injured spouse’s cause of action, any claim for loss
of consortium necessarily fails as well.’’ Id., 376, citing Hopson v. St. Mary’s
Hospital, supra, 176 Conn. 494. The court in Musorofiti further stated: ‘‘A
new trial in the present case solely on the issue of damages as to the loss
of consortium claim does not implicate any of the concerns for which
courts have determined that the underlying impaired spouse’s claim must
accompany the deprived spouse’s claim. The defendants presented no evidence of comparative responsibility. The . . . husband neither lost in his
action nor settled his claim, so neither settlement nor adverse judgment
bars the . . . wife’s claim. Furthermore, no reason exists for concern that
the jury will improperly award damages to the . . . wife for the husband’s
injuries or vice versa.’’ Musorofiti v. Vlcek, supra, 381. Accordingly, Musorofiti is not only consistent with our holding today, it provides persuasive
support for our conclusion that the rule we apply is an established one,
supported by our legal precedent.
8
The applicable Restatement (Second) rule requires the joinder of a loss
of consortium claim with the underlying tort claim ‘‘[u]nless it is not possible
to do so’’; 3 Restatement (Second), Torts § 693 (2), p. 495 (1977); for example,
when the injured spouse has ‘‘settled and released the claim for bodily harm
without the knowledge of the deprived spouse.’’ Id., comment (g), p. 498.
In the present matter, it is clear that the plaintiff was aware of Voris’
settlement of her claims.
9
The risk of overlapping awards is exacerbated in cases such as the
present one, in which the injured spouse’s settlement consists of an undifferentiated lump sum award, making it impossible to discern the purposes at
which the compensation may have been directed.
10
There may be cases in which spouses are unable to agree on the wisdom
of accepting an offer of settlement on the injured party’s claim if no acceptable offer to settle the loss of consortium claim is included as part of the
offer. It is true that, in such cases, the injured party may unilaterally agree
to settlement of his or her claim, thereby extinguishing the deprived party’s
right to pursue recovery on the loss of consortium claim. Although this
potential outcome is not ideal, it is preferable to an outcome that could
result from permitting the consortium claim to remain viable. Namely, a
tortfeasor who otherwise would agree to a settlement with a willing injured
party would decline to do so because the benefits of settlement—finality
and the avoidance of trial—would be eliminated by the potential, continued
pursuit of the consortium claim. In other words, the deprived spouse effectively could force the injured spouse to continue participating in litigation
against his or her will, perhaps requiring him or her to be deposed, submit
to medical examinations and testify at trial. When the interests of the directly
injured spouse and the deprived spouse diverge, the wishes of the injured
spouse, who may be in need of the immediate financial relief that a settlement
offers, ought to control. See, e.g., Pugh v. Super Fresh Food Markets, Inc.,
640 F. Sup. 1306, 1308 (E.D. Pa. 1986).
11
The question of whether the settlement of the predicate claim barred
the consortium claim was not before us in Izzo. See Izzo v. Colonial Penn
Ins. Co., supra, 203 Conn. 308 n.3 (‘‘[a]s part of the settlement, the defendants
waived any argument that the settlement of the claim [of the plaintiff’s wife]
acted to extinguish the loss of consortium claim of the plaintiff’’).
12
We do not speculate as to whether a defendant would have any claim
against his carrier for settling the direct injury claim.
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