The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER GRANTING DEFENDANT SUMMARY ADJUDICATION OF CERTAIN PLAINTIFFS' LOSS OF CONSORTIUM CLAIMS [Dkt Nos. 47, 49, 51, 53]
This consolidated Federal Tort Claims Act case arising out of an airplane accident is before the court on four Motions For Summary Judgment defendant the United States of America ("Defendant") has filed for adjudication of the loss of consortium claims advanced by certain sets of plaintiffs ("Motions"). Each set of plaintiffs filed an Opposition, and the government filed separate Replies. Pursuant to Civil Local Rule 7.1(d)(1), the court finds the issues presented appropriate for decision on the papers and without oral argument. For the reasons discussed below, the Motions are GRANTED.
Plaintiffs' decedents are four of five passengers or crew on a New Mexico-based air ambulance service plane which crashed shortly after takeoff from Brown Field Municipal Airport in San Diego, California on October 24, 2004. Plaintiffs allege air traffic controllers, employed by the Federal Aviation Administration, were negligent and caused the accident. Defendant denies those allegations. The First Amended Complaint ("FAC"), consolidating the claims in one pleading, presents multiple survival actions and claims for damages for wrongful death and loss of consortium. Dkt No. 33. By Order entered May 10, 2007, this court decided the choice of law issues, concluding the measure of damages will be decided under the law of New Mexico, and liability issues will be decided under California law. Dkt No. 23. The Motions seek summary adjudication of only the loss of consortium and loss of guidance and counseling claims of only certain of the plaintiffs, on grounds those plaintiffs cannot establish elements essential to recovery of damages under those theories.
A. Summary Adjudication Of Issues
Federal Rule of Civil Procedure ("Rule") 56(c) empowers the court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c); see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). A fact is material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A court considering summary adjudication of issues does not make credibility determinations or weigh conflicting evidence, as those determinations are for the trier of fact and are inappropriate in summary proceedings. Anderson, 477 U.S. at 249. The court considers the evidence in the light most favorable to the non-moving party. Id. at 255. However, the court is not required to accept conclusory allegations nor does the court assume the truth of legal conclusions merely because they are cast in the form of factual allegations. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003).
The moving party bears the initial burden of identifying the elements of the claim which that party "believes demonstrates absence of a genuine issue of material fact." Celotex, 477 U.S. at 323; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a triable issue. Celotex, 477 U.S. at 324; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Arpin, 261 F.3d at 919. Where the plaintiff bears the burden of proof at trial, summary judgment for the defendant is appropriate if there is an absence of evidence to support the claim. See Celotex, 477 U.S. at 325; see also Garneau v. City of Seattle, 147 F.3d 802, 807 (9th Cir. 1998). To successfully rebut a properly supported motion, a plaintiff "must point to some facts in the record that demonstrate a genuine issue of material fact and, with all reasonable inference made in the plaintiffs' favor, could convince a reasonable jury to find for the plaintiffs." Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000), citing, inter alia, Celotex, 477 U.S. at 323. If the party opposing the motion fails to make a sufficient showing on an element of his or her case, the movant is entitled to judgment as a matter of law. Celotex, 477 U.S. at 325; Anderson, 477 U.S. at 250-251 (summary judgment must be entered "if, under the governing law, there can be but one reasonable conclusion as to the verdict"); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (there is no genuine issue for trial if, on the record as a whole, a rational trier of fact could not find in favor of the party opposing the motion).
B. Cognizable Claims For Loss Of Consortium Damages
In deciding these Motions, the court addresses only those tort claims seeking recovery of damages for loss of consortium and related lost guidance and counseling challenged by the Motions. The court expresses no opinion on the targeted Plaintiffs' ability to prove liability or damages under their Wrongful Death Act causes of action or otherwise.
Loss of consortium is a limited claim cognizable under New Mexico common law. That theory of recovery is available only to certain categories of claimants in their individual capacities when the nature of their relationship with the injured or deceased person satisfies certain intimacy criteria, and when a legal duty predicated on forseeability to the tortfeasor of the loss to the claimant can be imputed. See, e.g., Romero v. Byers, 872 P.2d 840, 847, 843 (N.M. 1994) (recognizing a loss of consortium cause of action in a spousal relationship, defining the claim as "the emotional distress suffered by one spouse who loses the normal company of his or her mate when the mate is physically injured due to the tortious conduct of another," finding the duty of a potential tortfeasor to the spouse arises form the foreseeability of damage to the close relationship typically shared by husband and wife).
The duty analysis was framed by the Supreme Court of New Mexico in Solon v. WEK Drilling Co., Inc., 829 P.2d 645, 648, 650 (N.M. 1992) (holding any injuries to the parents of an adult child who lived with them and provided them household services were not foreseeable, and could therefore not support the parents' claims for loss of consortium and loss of economic support associated with their son's death in a work-related accident); see Fernandez v. Walgreen Hastings Co., 968 P.2d 774, 783-84 (N.M. 1998) (tracing "a series of New Mexico cases culminating in" the Solon "test for determining whether a duty is owed to a plaintiff" in tort cases, and holding that test should be applied to loss of consortium claims), citing Romero, 872 P.2d 840. The injury will be found foreseeable, and a plaintiff may recover for loss of consortium, only in circumstances where the plaintiff had an "intimate familial relationship" with the decedent.*fn1 Lozoya v. Sanchez, 66 P.3d 948, 957 (N.M. 2003).
As traced by Defendant, the New Mexico courts appear to recognize two types of "intimate familial relationships" warranting the availability of damages recovery for loss of consortium: (1) the relationship between spouses or an equivalent relationship (Lozoya, 66 P.3d at 957, 961, 958) and (2) the relationship between a familial caretaker and a minor child or an equivalent relationship (Fernandez, 968 P.2d at 784). Addressing the first relationship, the Lozoya court held the district court should have permitted a loss of consortium damages claim to go to the jury, even though the accident that injured the consortium claimant's spouse occurred prior to the time they were married, based on a factual demonstration establishing an intimate familial relationship: the consortium claimant and the injured person had "been together" for over 30 years, had three children, had lived for fifteen years in a house they had purchased, used the same last name, and filed joint tax returns. That court rejected arguments that a loss of consortium claim cognizable in relationships other than that of married couples would "create an impractical and unworkable cause of action." Lozoya, 66 P.3d at 957. "This would only be true if this Court does not do its duty of providing sufficient guidance to lower courts when determining when the claim should be allowed," and adopting as "greatly helpful" the criteria articulated in Dunphy v. Gregor, 642 A.2d 372, 377 (N.J. 1994). Id. While acknowledging "a myriad of factors should be considered to determine whether the relationship was significant enough to recover" (Id.), the Lozoya court articulated several factors comprising the "intimate familial relationship" standard for purposes of establishing a cognizable claim:
That standard must take into account the duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, the extent and quality of shared experience, and ... whether the plaintiff and the injured person were members of the same household, their emotional reliance on each other, the particulars of their day to day relationship, and the manner in which they related to each other in attending to life's mundane requirements.
Lozoya, 66 P.3d at 957 (emphasis added) (holding while "not everyone who is engaged to be married, living together, or assuming the roles of husband and wife (common law or not) will be entitled to recover" for loss of consortium, the facts of the relationship convinced that court to recognize the right of that particular cohabitant to present a claim for loss of consortium to a jury associated with the tort victim's demise, and identifying a "presumption . . . in favor of [finding] a close familial relationship when the claimant can prove the elements . . . of mutual consent to be married followed by a mutual assumption of marital rights, duties or obligations," with consent to be "implied from the parties' acts or conduct, and the usual civil burden of proof of preponderance of the evidence should apply"), quoting Dunphy, 642 A.2d at 378.
As for the second type of relationship, the Fernandez court held a particular grandmother, upon proof of her unique position as the family caretaker and provider of parental affection to her twenty-two month old grandchild, could recover for loss of consortium when the child died as a result of taking a negligently filled prescription medication. That court identified four factors that must be present before a compensable relationship will be recognized between a familial caretaker and a child for purposes of recovery of damages for loss of consortium:
We hold that such foreseeability can exist where: (1) the victim was a minor; (2) the plaintiff was a familial care-taker, such as a parent or grandparent, who lived with and cared for the child for a significant period of time prior to the injury or death; (3) the child was seriously physically injured or killed; and (4) the plaintiff suffered emotional injury as a result of the loss of the child's companionship, society, comfort, aid, and protection.
Fernandez, 968 P.2d at 784 (emphasis added).
Other New Mexico authority elaborates the Solon test for finding an "intimate familial relationship" adequate to satisfy the standard in other factual circumstances. For example, in Fitzjerrell v. City of Gallup, 79 P.3d 836, 840 (N.M. App. 2003), the Court of Appeals traced the development of the cause of action and clarified its scope (citing, inter alia, Romero, Fernandez, and Lozoya), to emphasize "the loss of consortium is a claim to recover compensation for damage to a relational interest with a person, not a legal interest." Fitzjerrell, 79 P.3d at 840. "Loss of consortium is thus derivative of other injuries and not an injury in and of itself." Fitzjerrell, 79 P.3d at 840. "Accordingly, a duty to a prospective plaintiff springs only from the foreseeability of injury to that close and intimate bond." Id., citing, inter alia, Solon, 829 P.2d at 648. "The legal availability of relief depends on the factual determination of whether a plaintiff has a significant enough relational bond with the victim of a tort to recover for loss of consortium," characterized as one "sufficiently close and intimate" with the victim. Fitzjerrell, 79 P.3d at 840, citing Lozoya, 66 P.3d 948.
The Fitzjerrell court reversed the lower court's dismissal of the loss of consortium claims by parents and siblings, as a matter of law from the face of the pleading, holding dismissal was premature in the absence of any factual record. Such family members are not necessarily legally barred from asserting loss of consortium, if they can produce evidence to show "that their relationships with Decedent was [sic] sufficiently close financially, socially, or both, and if it was foreseeable that the injury to Decedent would harm the relationships." Fitzjerrell, 79 P.3d at 841 (emphasis added). The Fitzjerrell court succinctly summarizes the nature of a compensable loss of consortium claim and substantiates the existence of a manageable standard against which to measure the unique factual circumstances of consortium claimants:
In order to determine whether a claimant has a sufficiently close and intimate relationship with the victim, this Court should consider several factors, including but not limited to: duration of the relationship; mutual dependence; common contributions to a life together; shared experience; living in the same household; financial support and dependence; emotional reliance on each other; qualities of their day to day relationship; and the manner in which they related to each other in attending to life's mundane requirements. . . . Lozoya's "mutual dependence" factors include, in our view, emotional, physical, and financial support and dependence. Lozoya makes clear that a relationship that creates a compensable interest is one that is intimate, protective, interdependent, and intertwined in functional (the way the people in the relationship meet day-to-day situations together), financially interdependent, and temporal ways (spending time together at least to the extent of living together in the same household). . . . When added to the elements of the cause of action enunciated in Fernandez, these factors form a cogent picture of the legal requirements that are necessary to maintain a claim for loss of consortium. It is clear that the purpose of this cause of action is not to compensate claimants for grief they suffer as a result of their own upset, but to compensate an injury to a relationship they shared with the injured or deceased person. Loss of consortium is thus derivative of other injuries and not an injury in and of itself. . . . Accordingly, a duty to a prospective plaintiff springs from the foreseeability of injury to that close and intimate bond.
Fitzjerrell, 79 P.3d 836, 840-41 (emphasis added) ("The elements consisting of the qualities of the relationship that give rise to the claim are flexible in scope," so that the "legal availability of relief depends on the factual determination of whether a plaintiff has a significant enough relational bond with the victim of a tort to recover for loss of consortium").
The issue before this court is in a procedural posture different from that in the Fitzjerrell case. Plaintiffs here have had the opportunity to present an evidentiary record from which a reasonable jury could find the requisite "intimate familial relationship" and a duty imputable to the alleged tortfeasor adequate to warrant an award of damages. Applying Rule 56 standards to the evidentiary record presented, this court may determine whether Plaintiffs have carried their shifted burden to identify triable issues of material fact associated with the standard New Mexico applies to authorize loss of consortium damages recoveries and whether, on the record as a whole, a rational trier of fact could find in favor of the parties opposing summary judgment of those claims. See Matsushita, 475 U.S. at 586-87; see also Anderson, 477 U.S. at 250-251. If the facts of the particular relationship upon which the plaintiff sues reveal it was not sufficiently interdependent in functional, financial, and temporal ways to qualify as an "intimate familial relationship," this court is not persuaded it may not make that finding as a matter of law.
Plaintiffs and Defendant dispute whether the court may make a pre-trial determination as a matter of law whether a loss of consortium claim is compensable. That divergence appears to arise from observations in State Farm Mut. Auto Ins. Co. v. Luebbers, 119 P.3d 169 (N.M. App. 2005), cert. quashed, 146 P.3d 810 (2006) (construing an automobile insurance policy and holding a child's status as a four-week-old fetus at the time of his father's death was not fatal to a claim for loss of parental consortium, on grounds the injury in those circumstances was the inability to form any parental relationship, rather than the loss of an established bond, and the difficulty of proving what type of parent his father was likely to be affected only the potential value of the claim).*fn2 The Luebbers court observed "[i]t is better to allow the fact finder to assess the relative strength of the claims after a full factual hearing" rather than for the court to create a "bright line rule" with respect to the timing when a child's loss of consortium claim may become cognizable among very young infants or a parent's pre-birth death. Luebbers,199 P.3d at 180.
This approach mirrors the approach adopted by the [New Mexico] Supreme Court in Lozoya, in that it allows inquiry into the nature and quality of the relationship to determine whether a claim is compensable rather than relying on the existence of a particular legal relationship as a dividing point. The distinction is that in this case we start with a recognized legal relationship and allow the parties to litigate the value of the claims based on the likely nature of the relationship which was not allowed to come into existence.
Luebbers,199 P.3d at 180-81, 178 (an approach devised to accommodate "a classic example of a temporal disconnect between a wrongful act and the injury it ultimately causes"), citing Crumpton v. Gates, 9947 F.2d 1418, 1420-24 (9th Cir. 1991) (involving a 42 U.S.C. § 1983 claim by a son for the loss of his liberty interest in familial relations arising out of the police killing of his father when he was a two-month-old fetus, construed by the Luebbers court as analogous to a loss of consortium claim, because the loss "can only be felt after birth when the plaintiff was ...