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Lamphere v. United State


March 21, 2008


The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge


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 unquestionably a 'person,'" noting "Crumpton held that the child was permitted to recover and his cause of action did not accrue until his birth").*fn3

However, this court finds the Luebbers authority to be applicable to the unique circumstance examined by that court, not implicated in any of the challenged loss of consortium claims in these Motions. The Luebbers authority informs decisions related to that unique circumstance: i.e., the injury was not the loss of an established relationship, but rather the loss of an ability to form any parental relationship. None of the challenged loss of consortium claims in these Motions falls outside the scope of existing relationship analysis examined from the perspective of the time of their decedents' deaths. Unlike in Luebbers, the recognition of a "legal relationship" is not presumed, but rather is the consortium claimant's burden to prove before any damages valuation can legitimately proceed.

The Luebbers authority nevertheless does support the proposition a child's loss of consortium of a parent is a cognizable cause of action separate from a wrongful death claim, upon a proper factual showing of the requisite intimate familial relationship with that parent at the time of the loss. See Luebbers, 119 P.3d at 179 ("Given the development of loss of consortium law in New Mexico," citing, inter alia, Romero, Fernandez, Lozoya, and Fitzjerrell, the court held "upon the death of a parent, a minor child may pursue a separate claim for loss of parental consortium outside of a wrongful death action") (emphasis added). The Lubbers court clarified: "Brien Jr. may bring his loss of consortium claim separately, but his damages are limited to the value to him of the loss of Father's love, care, society, companionship, and the like," agreeing "with other jurisdictions that have 'awarded damages for lost guidance and counseling independent of damages for loss of consortium or other losses.'") Luebbers, 119 P.3d at 180 (citation omitted). Defendant does not dispute loss of parental consortium claims "have a place in [New Mexico's] tort jurisprudence," but only that these plaintiffs cannot recover damages under that theory with respect to their particular decedent parents or step parents.

Unlike the Luebbers infant, all these plaintiffs had existing relationships the nature and quality of which they must prove through evidence in support of facts to be measured against the "intimate familial relationship" factors evolved by the New Mexico courts to gauge whether the impact of the loss should be compensable in tort at all. Loss of consortium damages are not intended to "compensate claimants for grief they suffer as a result of their own upset," such as their sorrow, lost future hopes, bittersweet memories, mental distress, regrets or remorse the death forecloses for amendment, however foreseeable. Fitzjerrell, 79 P.3d at 840-41. Rather, entitlement to recovery depends on a demonstration of the requisite actual relationships the claimants shared with their decedents at the time of death.

Plaintiffs argue the quality of their relationships with their decedents "must be established by evidence at trial" (Lamphere Opp. P&A 4:17-18), and those claims necessarily involve "peculiar and unique facts . . . not amenable to any set formula nor can the claim be subject to a fixed set of factors" for evaluating the relationships (Lamphere Opp. P&A 9:1-4). The court does not find facts in deciding whether an issue must be summarily adjudicated for failure of an opposing party to carry its burden. Defendant here adequately shifted the burden to plaintiffs to produce evidence creating a triable issue of material fact on the requisite relationship based on which a reasonable jury could award them damages for loss of consortium. While not required to prove their case at this stage in the proceedings, plaintiffs must nevertheless produce some evidence to persuade the court a rational trier of fact could find in their favor on the issue under controlling law.

In consideration of the authority discussed above, the court rejects Plaintiffs' argument New Mexico has no legal test for relationships which may give rise to a right to recover for loss of consortium. See, e.g., Lamphere Opp. pp. 4-10. Plaintiffs appear to dispute New Mexico decisional law would ever permit the court to summarily adjudicate the issue due to the variety and "fact driven" nature of loss of consortium claims, arguing: "[t]here is no set rule that applies across the board; the factors for consideration by a trial Court are based upon the unique facts and relationships of the loss of consortium claimants with the victim." Opp. 20:16-18. However, the "fact-driven" nature of the analysis is accommodated by Rule 56 standards, describing the respective evidentiary burdens of the parties moving for and opposing summary adjudication as a matter of law and instructing the court to summarily adjudicate factually unsupported claims or defenses. The "relationship[] of the loss of consortium claimant[] with the victim" is precisely the showing necessary to raise a triable issue of material fact on the required element of an "intimate familial relationship," as differentiated from other close family relationships. When objective behavior substantiated in the evidentiary record establishes on its face the interactions and conduct of the consortium claimant and the decedent fall short of the indicia of "intimate familial relationship," as elaborated in the case law defining that tort for purposes of recovery of damages for a parent's, child's, or sibling's loss of the decedent's society or support essential to a finding of liability, this court concludes the quality of the relationship need not be tried to a jury because the claimant cannot recover damages under that theory as a matter of law. The jury's job is to value the loss to consortium claimants of those "intimate familial relationships" recognized as compensable losses. Absent a showing of triable issues of material fact whether the requisite relationship existed to support a potential recovery of damages, the court may find as a matter of law the legal standard cannot be met.

In this case, each of the consortium claimants had a pre-existing relationship with their decedents, and an evidentiary record exists as to their actual connections and interactions with their decedents against which the elements of the "intimate familial relationship" showing can be compared. If that threshold is not met, in this court's view an essential element of a compensable loss under that legal theory is absent, precluding litigation of the value of the claim. The "likely nature of the relationship" question in the Luebbers-type case, supporting a presumption of a potentially compensable claim, is replaced here by actual relationships the nature of which plaintiffs must substantiate. While Plaintiffs are correct a court applying Rule 56 standards may not find facts, the court must grant summary judgment where parties with the burden of truth at trial fail to identify facts from which a trier of fact could find in their favor on the issue. Plaintiffs bear the burden of proof on all the loss of consortium claims. Unless they demonstrate trial of the claims is warranted, the issue of valuation of damages predicated on the existence of a viable claim does not arise. The court finds it can decide these Motions as a matter of law in consideration of all the facts supported by the relevant evidence presented, applying New Mexico law defining the factors controlling potential recovery for loss of consortium. Merely because loss of consortium claims are of a "fluid and fact-dependent nature" (Lamphere Opp. 10:2) does not remove them from the scope of Rule 56 review before trial.


The material facts are essentially undisputed. The motion papers elaborate the parties' differing constructions of how the facts should be characterized in consideration of factors New Mexico common law has evolved to inform the question whether the nature of the relationship of each consortium claimant with his or her decedent rises to the requisite level of interdependent intimacy to warrant submitting the claim to a jury for recovery of damages. The court decides each Motion in consideration of the essential elements for recovery of damages for loss of consortium: (1) a factual demonstration of a sufficiently intimate familial relationship between the particular claimant and the decedent existing at the time of the death; and (2) the existence of a duty owed by the defendant to the plaintiff, to be determined as a matter of law. See e.g., Lozoya, 66 P.3d at 957. While in no way intending to minimize their grief and bereavement, for the reasons discussed below, the court finds none of the plaintiffs targeted by Defendant's Motions has demonstrated the degree of "intimate familial relationship" with his or her decedent from which a reasonable jury could award them tort damages for loss of consortium.

In reviewing the evidence under Rule 56 standards, the court draws the reasonable inferences from the evidence presented each of the loss of consortium plaintiffs cared very much for their decedent, and experienced sincere grief, sorrow, and bereavement at his loss. Nevertheless, the court must winnow the Opposition facts relevant to the factors required to establish the requisite "intimate familial relationship" at the time their decedent died from facts describing historical relationships or projections of future circumstances in which the decedent's presence will be missed. The court evaluates the extent of mutual support, interdependence, and the like as they existed at the time of death in each claimant's individual relationship to his or her decedent as informing the determination whether each lost a relationship potentially compensable under a loss of consortium theory.

A. Lamphere Plaintiffs

The Lamphere plaintiffs are Tammie Lamphere, the wife and personal representative of the estate of decedent Kristopher John Lamphere, a 30-year-old professional pilot at the time of his death, and his heirs, identified in addition to his wife as his two stepchildren, his brother, his three sisters, his father, and his mother. FAC ¶ 11. Defendant seeks summary adjudication of the loss of consortium claims only as to the individual claims of: Mr. Lamphere's parents, Richard and Lavonne Lamphere; his sisters Kristin Ferris and Kathleen A. Attia-Alla; and his stepdaughters, Brianna Chacon and Marissa Chacon. Dkt No. 49. Defendant argues the undisputed facts show the requisite relationship did not exist between the decedent and any of those plaintiffs, so that their individual claims must fail as a matter of law. Those plaintiffs oppose the Motion, contending they have adequate factual support to sustain their loss of consortium claims and genuine issues of disputed material fact preclude summary adjudication. Opp. 3:11-13.

Many of the facts provided to oppose summary adjudication furnish only context, narrative descriptions of plaintiffs' personal histories, or character traits of their decedent, frequently pre-dating by many years the pertinent time period of Mr. Lamphere's October 2004 death from which the court (applying Rule 56 standards) or any eventual factfinder (applying preponderance of the evidence standards) must judge the adequacy of the evidentiary showing. Likewise, representations regarding the naturally distressing emotional effects of the loss of their decedent do not advance the required showing. Opp. pp. 13-19.

1. Parents

The undisputed evidentiary record before the court substantiates that in October 2004, Mr. Lamphere's parents resided in Albuquerque, New Mexico, but lived separately from their son. Mr. Lamphere, aged 30 years at the time of his death, had moved to Albuquerque in 2002 for a job opportunity after serving in the Air Force. He had not lived with his parents since 1992, with the exception of the month prior to his June 2004 marriage, before moving in with his wife and her young daughters. His parents had lived in North Dakota, Nebraska, and Colorado in the years since their son left the family home after high school, while he had lived primarily in other states. Until 1997, he had shared an annual trip with his father, enjoying fishing, hunting, skiiing, snow mobiling, and flying together.

Mr. Lamphere saw his parents several times a week when they all resided in Albuquerque, including with his new wife after their marriage. The two couples went to church together. Mr. Lamphere helped his parents make decisions and assisted around their house due to his father's heart condition, which prevented him from engaging in any strenuous activity. They spoke on the telephone almost daily. Mr. Lamphere's companionship was a source of comfort and emotional support for both his parents. Mr. and Mrs. Lamphere received no financial support from their son nor he from them. Since his death, his parents suffer from depression, anxiety, insomnia, loss of appetite, and weight loss. They regret their son never had his own child, something he badly wanted. As loving parents of a loving son, their lives are naturally forever changed by his loss.

In consideration of the evidentiary record presented, the court finds no genuine issue of material fact emerges to support the requisite interdependence essential to establish the "intimate familial relationship" prerequisite to recovery by parents of a decedent for loss of consortium foreseeable by a tortfeasor. Mr. Lamphere was an adult, not a minor child. He had not shared a household with his parents for any significant duration in the twelve years preceding his death. He did not contribute to their financial support. The nature of the interdependence as it emerges from undisputed facts cannot reasonably be construed as other than that typically shared by fond family members who reside in the same vicinity. The Lampheres have identified no unique circumstance from which a reasonable factfinder could differentiate their relationship with their adult son at the time of his death from that of any other similarly situated family. The Motion for summary adjudication of the loss of consortium claim in Defendant's favor is accordingly GRANTED with respect to Richard and Lavonne Lamphere.

2. Siblings

Kristin Ferris is Mr. Lamphere's older sister, but closest to him in age of all the siblings. They both lived in the family home until she moved out to attend college locally in 1988, but they maintained daily contact until he graduated from high school in 1992 and moved away to serve in the military. Thereafter, she and he spoke on the phone at least once a month and exchanged cards. Ms. Ferris wishes she could have seen her brother more, but the geographical distance and financial burden of traveling limited such visits. She saw Mr. Lamphere three times in the five years preceding his death. She has since had trouble sleeping and has nightmares about the air crash.

Kathleen Attia-Alla is another older sister, sixteen years her brother's senior, and the eldest child at home during his early childhood. She lived in the Lamphere family home until she moved away to attend college in 1980, but saw her brother on her visits home from college almost every weekend, as well as on holidays or at family gatherings until he moved away in 1992. She would talk with him about his career goals, and they exchanged news of each other's lives and interests after both were grown and out of the house, talking on the phone at least once a week and exchanging e-mail. Ms. Attia-Alla visited her brother in California for ten days in 2002. She saw him two times in the five years preceding his death.

Both these consortium claimants lived in North Dakota at the time of the accident. Neither shared a household with Mr. Lamphere. Neither received financial support from him. Both attest to an emptiness created in their lives by the death of their brother, and their sadness at holidays and birthdays without him. Nevertheless, the court finds by no reasonable inference from the evidence presented could it be found Mr. Lamphere and either sister shared uniquely intertwined lives of a quality or nature adequate to support recovery under a loss of consortium theory. They evince none of the factors found by New Mexico courts to warrant recognition of a separate tort theory of recovery and attribution of a duty to a tortfeasor to compensate either of them for the loss of the relationship. Their evidence describes no more than a fond relationship between independent adult siblings. The evidence identifies no particular circumstance from which a reasonable factfinder could differentiate their relationships with their brother at the time of his death from that in any other similarly situated family. The Motion for summary adjudication of the loss of consortium claim in Defendant's favor is accordingly GRANTED with respect to Kristin Ferris and Kathleen Attia-Alla.

3. Step-Children

The undisputed facts establish Briana Chacon and Marissa Chacon met Mr. Lamphere in February 2003, before he began dating their mother. They lived with him and their mother for four months, from the time of their marriage in June 2004 until the October 2004 accident. Briana was born in May 1993, and Marissa was born in May 1991. Their parents had divorced in 2001, with both natural parents maintaining joint custody.

Briana's and Marissa's declarations substantiate adjustment problems not unusual from stepparent/stepchild frictions, but which were being resolved as the girls resolved their initial fears Mr. Lamphere might be trying to take their father's place. They participated in blended family counseling to help them overcome their anger at their parents' divorce and to help them understand their growing relationship with Mr. Lamphere in his role as stepfather. They took vacations together. He was very kind to them and was fun to be with. They appreciated his love for their mother. He helped them with homework and did things with them such as cooking and swimming and gave them emotional support, despite their early antagonism toward him. After Mr. Lamphere's parents moved to Albuquerque in the summer of 2003, the girls also spent a lot of time with their step-grandparents.

Briana experienced shock at the news of the air crash. She feels her relationship with her stepfather was cut short, with a big part of her life just beginning then suddenly taken away. Marissa feels bad for not spending more time getting closer to her stepfather and for not always treating him as nicely as he treated her. She regrets the time she wasted being stubborn, and feels a big hole in her life without him.

The court finds, by any frame of reference, the four-month duration of the shared household relationship allegedly giving rise to a loss of consortium claim by Mr. Lamphere's stepchildren was too short to persuade any reasonable factfinder the requisite intimate and interdependent relationship had been established. Rather, undisputed facts demonstrate the girls' primary caretakers and objects of their emotional dependency continued to be mother and their biological father, who shared joint custody of them and to whom the girls looked for companionship, society, comfort, aid, and protection rather then to their stepfather, to whom they were admittedly slow to warm. There is no evidence of any plans to alter that arrangement or for Mr. Lamphere to adopt his wife's daughters.

Plaintiffs do not refute "no reported case in New Mexico has ever dealt with a claim for loss of consortium by a stepchild." Mot. P&A 5:10-11. Defendant identifies Luebbers as the one reported case in New Mexico to recognize a claim for loss of consortium by a biological child. The court distinguishes that case above as predicated on a unique circumstance in the loss of consortium context requiring a modified recovery theory, because it dealt with the loss of an opportunity to have any relationship with a parent killed before the child's birth rather than applying the analysis to characterize an existing relationship under the legal standard for finding an "intimate familial relationship." That court presumed the existence of an "intimate familial relationship," whereas here the court must determine whether these consortium claimants have any evidence from which such a finding could be made. The Luebbers court fashioned a remedy in reliance on the legal relationship between a child unborn at the time of his father's death, rather than performing the usual analysis to identify the presence or absence of factors suggesting the requisite relationship existed between the consortium claimant and the decedent. The court is unpersuaded by plaintiffs' attempt to save this claim in reliance on Luebbers. No legal relationship through formal custody or adoption existed between the Mr. Lamphere and his stepdaughters. With respect to the intimacy and caretaker factors, the evidence is insufficient to create a triable issue of fact these minor children looked primarily to Mr. Lamphere for such support. Their mother worked, and the children were not financially dependent on him rather than on their biological parents.

In addition to Mr. Lamphere's step-daughters' loss of consortium claim, the FAC also asserts a claim for "lost guidance and counseling" on their behalf. A minor's lost guidance and counseling "is a pecuniary injury under the [Wrongful Death] Act," and such damages are to be included as part of the value of the decedent's survivors under the Act. Romero, 872 P.2d at 847. The Romero court recognized a cause of action by a minor child for loss of parental guidance and counseling as part of a claim for loss of spousal consortium, noting "the cause of action by a minor child for loss of guidance and counseling has not been considered by this Court, because the basis for the action was seen as rooted in loss of consortium." Id., at 842. However, the Luebbers court acknowledged Romero did not limit children to a remedy under the Wrongful Death Act and "did not bar an independent cause of action for loss of parental consortium as such." Luebbers, 119 P.3d at 180 (distinguishing the type of damages a minor child can pursue outside a true wrongful death action, eliminating any pecuniary damages under a loss of consortium/loss of guidance theory for the parent's medical expenses, pain and suffering, lost earnings, or the value of the parent's life), quoting Romero, 872 P.2d at 846.

Plaintiffs do not refute Defendant's contention New Mexico has not dealt with a claim by a stepchild for lost guidance and counseling, coming closest in Otero v. City of Albuquerque, 965 P.2d 354 (N.M. App. 1998). The Otero, court made recovery under that theory contingent upon proof of legal or equitable adoption.*fn4 Mr. Lamphere's stepchildren attempt no such showing, nor can any reasonable inference be drawn they could conceivably prove the requisite relationship with him in consideration of their on-going relationship with their biological father. The Motion for summary adjudication of the loss of consortium and loss of guidance and counseling claims in Defendant's favor is accordingly GRANTED with respect to Briana and Marissa Chacon.

4. The Lamphere Plaintiffs Have Not Carried Their Rule 56 Burden

In summary, drawing all reasonable inferences in their favor, the court finds none of the Lamphere consortium claimants targeted in Defendant's Motion has carried his or her burden to defeat summary adjudication of that tort claim under New Mexico law. Defendant demonstrates, as a matter of law on undisputed facts, at the time of the accident none of them had a sufficiently intimate familial relationship with their decedent to recover damages under that theory. Moreover, the court is not persuaded by any of the showings Defendant reasonably can be found to have had a foreseeable, actionable duty towards the parents of a 30-year-old man with whom he had not shared a household for more than a decade prior to his death, or to geographically distant adult siblings, or to his stepchildren of four months duration who remained emotionally, financially, and legally dependent upon their biological father and mother. Plaintiffs produce no evidence from which a reasonable jury could find the social interactions or the financial support Mr. Lamphere provided to any of them either existed or surpassed the normal familial interactions to be expected in any similar family units among themselves. Under this court's reading of New Mexico authority, it is insufficient to sustain a loss of consortium claim based solely on an allegedly "strong, caring, emotional bond." See Opp. 20:3-5. In the absence of evidence of at least some of the factors used to demarcate a loss of consortium claim actionable as a tort from emotional distress and grief associated with the death of a loved one, the court finds Defendant's Motion must be GRANTED with respect to the targeted claims of these Lamphere plaintiffs. The court of course expresses no opinion on the issues associated with these plaintiffs' Wrongful Death theories nor their potential for recovery of damages under any other FAC theory.

B. Womble Plaintiffs

The applicable law and reasoning the court applied in deciding the Lamphere Motion apply equally to the loss of consortium claims of the parents and stepchild of decedent Donald Womble, Jr., who was 45 years old when he perished in the plane crash. The necessarily idiosyncratic factual underpinnigs of each individual claimant's relationship to his or her decedent, including those of Mr. Womble's own children, are addressed separately below to support the result. The court again perceives from the factual record presented each of the Womble plaintiffs targeted by the Motion cared very much for their decedent, and experiences sincere grief, sorrow, and bereavement at his loss.

1. Parents

Consortium claimants Donald Womble, Sr. and Jeanne Womble are the parents of Donald Womble, Jr., their decedent. As pertinent here, it is undisputed he resided in Edgewood, New Mexico, a suburb of Albuquerque, from 1995 until the 2004 accident. His parents lived in Albuquerque. He had lunch with his father at least once a month. Mr. and Mrs. Womble testified they taught their son to be independent, and he moved out of their house to focus on his career when he became an adult. They characterize their relationship with him at the time of his death as "loving and supportive." Decl. D. Womble, Gilman Exh.3; Decl. J. Womble, Gilman Exh. 2. They describe their responses to his death as causing grief, anxiety, insomnia, depression, worsening medical conditions, and loss of the comfort of having him there for their elderly years, as well as loss of the opportunity to fully repair their relationship with him.

Mrs. Womble describes their relationship with their son as "in a state of repair" at the time of his death, due to some tension that had developed during a period of his involvement with an ex-girlfriend before he married Laura Womble, his second wife. J. Womble Decl., Gilman Decl. Exh. 2 p. 3. Mr. Womble, Jr. apparently did not invite his parents to his small second wedding, and they did not attend. Defendant relies on Mrs. Womble's deposition in support of the facts: she had never met Laura Womble; her son never visited his mother, and spoke with her only a few times a year; she could not remember the last time she visited with him nor how long it took to drive from her house to his. J. Womble Depo. pp. 20-26, Fowler Decl. Exh. I. Defendant highlights the absence of any financial interdependence between the Wombles and their decedent, the infrequency of personal visits despite living in the same area, and the absence of a shared household and daily experiences as defeating a threshold showing of "intimate familial relationship" required for recovery of damages under a loss of consortium theory. Defendant argues the absence of cohabitation, absence of dependence on their son for material or personal assistance, lack of mutual dependence or common contribution to a life together with him eliminates the foundation for any compensable loss of consortium claim.

Leaving aside the details about their relationship during Mr. Womble, Jr.'s childhood and young adulthood as not informative of the nature or quality of the relationship at the relevant time period, the court finds Mr. and Mrs. Womble fail to carry their shifted burden on summary judgment to create a genuine issue of disputed material fact to save the claim. They advance the same argument as the other consortium claimants in their Motions, i.e. "the fact that Plaintiffs lost their [decedent] is subject to ruling as a matter of law. However, the quality of the relationship between the Plaintiffs and [their decedent] must be established by evidence at trial." Opp. 4:18-21, citing Luebbers, 119 P.3d 169. The court has construed that case as distinguishable from the loss of consortium claims at issue in these Motions. In addition, as discussed elsewhere in this ruling, summary judgment standards do not preclude a decision on the bare ground that particularized facts must be considered in deciding the Motions. The Motion for summary adjudication of the loss of consortium claim in Defendant's favor is accordingly GRANTED with respect to Donald Womble, Sr. and Jeanne Womble.

2. Natural Children

Consortium claimants Donald Womble, III and Kristin Womble are the biological children of the decedent from his first marriage, to Stacey Gardener.*fn5 Undisputed Fact Nos. 12, 13. Donald III was born in January 1989. Kristin was born in December 1986. Mr. Womble, Jr. and Ms. Gardener divorced in July 1995. Their parents shared legal custody after the divorce. The undisputed facts establish Donald III and Kristin lived with their father full time in New Mexico from July 1995 until December 1999, the three and one-half years after their parents' divorce. They visited their mother and half-sister, Amber Straubing (the decedent's stepdaughter during his marriage to Ms. Gardener) every weekend while they lived in Amarillo, Texas. Donald III and Kirstin moved in with their mother full-time in 1999 when their father started paramedic school and began sharing an apartment with a family friend to save money. They never lived with their father again. Their mother remarried. Donald III and Kristin lived with their mother and their stepfather, Robert Gardener, after 1999. Kristin characterizes the relationship with their stepfather as good. He paid the household bills and gave them emotional support. K. Womble Depo. p. 18, Gilman Decl. Exh. 6. They moved to Illinois with their mother and stepfather. They visited their father thereafter during school vacations and for holidays, three or four times a year. Depo. D. Womble, III, Fowler Decl. Exh. K and Gilman Exh. 4; Decl. D. Womble, III, Gilman Decl. Exh. 5; Depo. K. Womble, Fowler Decl. Exh. L and Gillman Exh. 6; Decl. K. Womble, Gilman Decl. Exh. 6.

Mr. Womble, Jr. invited his children to move back to Albuquerque in 2002, when he married his second wife, Laura, but the teenagers preferred to stay in Chicago where they had become involved, although they characterize their relationship with their father as very good despite the distance. He discussed with them how much money they needed for school and clothes, and would reimburse their mother for half their expenses. He also sent money to the children for birthdays and holidays. Gardener Decl., Gilman Decl. Exh. 10.

Donald III spoke with his father two to four times a month, using a webcam so they could see each other. D. Womble, III Decl. 2:16-18. He declares they discussed his school and future plans, and he received guidance and comfort from him. His father planned to help him with college tuition and living expenses. They visited the military academy in New Mexico in 2001 together, in preparation for his joining the Air Force. He describes an effect of his father's death as his no longer having a father to turn to when making tough decisions.

D. Womble III Decl. pp. 3-4.

On undisputed facts, the court finds neither of Mr. Womble, Jr.'s consortium claimant children shared a daily interdependence with him, financially or socially, and he had not had physical custody of his children nor had he served as their primary caregiver for many years before the accident. Those circumstances foreclose a finding of duty based on foreseeability of the type of injury to these plaintiffs contemplated by New Mexico's test for "intimate familial relationship" on the part of a potential tortfeasor. See Fernandez, 968 P.2d at 784.

The Motion for summary adjudication of the loss of consortium claim in Defendant's favor is accordingly GRANTED with respect to Donald Womble, III and Kristin Womble.

3. Step Child

Consortium claimant Amber Straubing is the child of the decedent's former wife, Stacey Gardener. The discussion of stepchild status associated with the legal analysis of the Chacon consortium claimants, above, applies equally to this plaintiff. She was about three years old when Mr. Womble, Jr. married her mother. Sometime in 1992, when she was about 10 years old, her mother and stepfather decided it would be best for her to live with her grandmother in Amarillo, Texas to attend school. After her divorce from the decedent, Ms. Gardener also moved to Amarillo and remarried. Mr. Womble, Jr. never adopted Amber, but she testified she did not know he was not her biological father until she was 8 or 9 years old when such discussions came up. Straubing Depo. p. 16, Decl. p. 2; Gilman Exhs. 8, 9. She never knew her biological father and considered her stepfather to be her dad. Straubing Decl. p. 2.

Amber had not lived with the decedent since 1992. From 1992 until 1995, she spent school vacations in New Mexico with her family, including her stepfather, and they visited her on weekends. She also saw him on weekends thereafter, until 1998 or 1999 when she moved with her mother, stepfather, and siblings to Chicago. After the move to Chicago, she did not accompany Donald III and Kristin when they visited their father in New Mexico. She not seen him in the five years before his death. She declares she spoke with him two or three times a week by phone and webcam and testified they discussed her moving back to Albuquerque to live near him. He helped pay her expenses. They spoke of her future plans and goals for her career, of which he was very supportive. He intended to help with her college tuition and living expenses, and wanted her to finish college. Straubing Decl. pp. 3-4. Amber was nearly twenty-two when her stepfather died, as calculated from her December 1982 birth date and the October 2004 plane crash. She describes the effects of his loss as increased anxiety, interfering with her ability to go anywhere, including to work. After the accident, she was not able to sleep and still dreams about him. Straubing Decl. p. 4.

This court finds, on undisputed facts, Amber cannot possibly prove the mutual dependence or day-to-day relationship of the kind necessary for her to prevail under a loss of consortium theory of recovery applying New Mexico law, leaving aside the absence of adoption. The Motion for summary adjudication of the loss of consortium claim in Defendant's favor is accordingly GRANTED with respect to Amber Straubing.

4. The Womble Plaintiffs Have Not Carried Their Rule 56 Burden

As noted by Defendant, the Womble Plaintiffs "do not allege any facts to show that their relationships were any more intimate than the typical relationship between a parent and an adult child, or a parent and child who live thousands of miles apart." Reply 2:25-28. The court concurs with Defendant: to find genuine issues of material fact requiring resolution by a fact-finder on this evidentiary record, the court would have to expand New Mexico impermissibly to conclude that state's loss of consortium cause of action/theory of recovery extends to anyone claiming "the loss of opportunity to develop the relationship which might have been." Reply 3:1-4, quoting Opp. 9:9. The court must concur the relationships those plaintiffs describe "were not intimate, protective, interdependent, or intertwined in functional, financially interdependent and temporal ways." Mot. P&A 8:1-3. The absence of familial caretaking associated with a minor child (see Fernandez), and the failure to satisfy any of the criteria discussed in Lozoya or Fitzjerrell preclude as a matter of law the potential for them to recover under a loss of consortium theory. None of these plaintiffs demonstrates he or she was making "common contributions to a life together" with their decedent. Reply 10:4-9. Plaintiffs' proffered explanations for the status of their relationships with their decedent at the time of his death (i.e., living in separate households, geographical distance, in the process of repairing the relationship, and the like) cannot substitute for the existence of a contemporaneous "intimate familial relationship," absent which, irrespective of the reasons the relationships were insufficiently intimate, the claim cannot proceed.

C. Larson Plaintiffs

Raymond and Gladys Larson are the parents of Laura Womble, who perished in the airplane accident at the age of 47 years along with her husband, Donald Womble, Jr. In reviewing the evidence under Rule 56 standards, the court draws the reasonable inferences each of them cared very much for their daughter, and experiences sincere grief, sorrow, and bereavement at her loss.

Defendant argues the Larsons can produce no evidence that their relationship with Ms. Womble "rose to the level of intimacy and inter-dependence required by New Mexico law to recover loss of consortium," warranting summary adjudication of that claim in its favor as to those plaintiffs. Mot. P&A 2:20-23. Defendant argues certain fundamental factors essential to the requisite "intimate familial relationship" showing did not exist between Ms. Womble and her parents at the time she died. In particular: the Larsons did not share a household or daily experiences with their adult daughter and, in fact, had lived in Florida for the 24 years preceding this action, while Ms. Womble lived in Ohio and New Mexico; she and her parents had no financial interdependency; Ms. Womble visited her parents in Florida at least once a year for vacations after she married her first husband, and her children also visited them; Mr. Larson had met his daughter's husband only twice in the two years they were married before the accident, and Mrs. Larson had met him three times; and their interactions with Ms. Womble were primarily telephonic, with no day-to-day interactions for over two decades, although Ms. Larson spoke on the telephone with her daughter about twice a week in conversations lasting an hour or more, sharing details of their lives. See G. Larson Depo., Fowler Decl. Exh. N; R. Larson Depo., Fowler Decl. Exh. P; see also Joint Statement of Undisputed Facts. Again, the court must winnow relevant facts from the extensive narrative of historical examples and descriptions provided of Ms. Wombles' life and the Larsons' natural feelings for their daughter and hers for them in order to determine whether they carry their burden to raise a triable issue of material fact.*fn6

In Opposition, the Larsons argue New Mexico has rejected any "bright line test based upon the legal status of the parties to the relationship" in deciding loss of consortium claims, in reliance on Lozoya, 66 P.3d 948. Opp. 7:26-28. This court's understanding of the authority elaborating the elements required for recovery under a loss of consortium theory under New Mexico common law appears above. The court declines to interpret that authority as so fluid that a fact-finder must always decide the nature of the relationship. The Larson's Rule 56 Opposition obligation was to produce evidence from which a reasonable factfinder could determine the existence of at least one of the indicia essential to a finding of an "intimate familial relationship" shared with their daughter at the time of her death.

The Larsons have lost the comfort of knowing their daughter would be around as they aged, and their grief at her lost has manifested in feelings of numbness, difficulty accepting she is actually gone, a void and loneliness and fear of future loneliness without her, difficulty sleeping, and the like. Opp. pp. 12-15. They summarize: "Gladys and Raymond Larson may not have lived with Laura Womble, but they maintained a strong, caring, emotional bond with their daughter, and the loss to these parents by the death of their daughter has been extreme." Opp. 16:5-8. The natural indicia of grief and sorrow, no matter how sincerely and profoundly felt, standing alone, are not compensable injuries under a loss of consortium theory under New Mexico law. These plaintiff parents point to no evidence from which a reasonable fact finder could conclude the nature of their relationship with their adult decedent was one of daily financial or social interdependence, or otherwise rose to an unusual level of intimacy distinct from any good relationship among grown children and their affectionate but geographically distant parents.

The court finds, applying the factors summarized in the legal standards section above necessary to sustain a loss of consortium claim by parents of adult children who share no financial, domicile, or caregiving interdependence, neither of the Larson plaintiffs raises a triable issue of material fact warranting fact-finding by a jury with respect to the "intimate familial relationship" nature of their connections to Ms. Womble at the time of her death. As a matter of law, these plaintiffs cannot prevail on the claim. Defendant's Motion is accordingly GRANTED as to the Larsons' loss of consortium claim.

D. Kolb Plaintiff

Brett Kolb is the adult son of Karl Kolb, a professional pilot living in Albuquerque, New Mexico at the time of the accident. Karl Kolb perished in the plane crash at the age of 56 years. The court does not doubt Brett Kolb, like the other consortium claimants, cared very much for his father and experiences sincere grief, sorrow, and bereavement at his loss.

Defendant argues Brett Kolb cannot establish his relationship with his father at the time of his death rose to the level of intimacy required by New Mexico common law to recover loss of consortium damages, warranting summary adjudication of that claim in its favor. In particular, Defendant argues Brett Kolb "must prove he shared a household and daily experiences with the decedent" in order to prevail on his loss of consortium claim, and the undisputed facts demonstrate he cannot do so. Defendant relies on the deposition of Linda Kolb, the decedent's wife and plaintiff's mother, for the facts: Brett Kolb was 22 years old at the time his father died; he lived in a different state; when his parents moved to New Mexico in 2002, he stayed behind and lived independently in Billings, Montana; and he had not lived with his parents for about two years prior to the accident. L. Kolb Depo. pp. 15-16, 40, Fowler Decl. Exh. Q; Undisputed Facts 1-4.

In his Opposition, Brett Kolb substantiates other facts he contends preclude summary adjudication of his loss of consortium claim.*fn7 In particular, he declares: his parents sold their Billings, Montana home and relocated to Santa Fe, New Mexico in June 2002, when his father accepted a pilot's job there; Brett remained in Billings to attend Montana State University as a full-time student, where he was a sophomore in fall 2002; he remained fully dependent on his parents for his educational and living expenses, tuition, books, room, and board; he and his father spoke on the phone affectionately several times a week; he and his parents would "frequently" visit back and forth between Billings and Santa Fe; he felt "overwhelmed" when he heard of his father's death, it left "a big hole in Brett's life;" and he thinks about his father every day and "still cannot accept the fact he will never see him again." B. Kolb Decl. pp. 2-4.

The court again rejects Plaintiffs' suggestion only a fact-finder "should be permitted to assess the relative strength of the [loss of consortium] claims after a full factual hearing" in purported "accordance with New Mexico law." Opp. 15:20-21. While it is true the characterization of a consortium claimant's particular relationship with the victim is a question of fact, the decision whether the damages claim should proceed to trial can and should be determined by the court applying Rule 56 standards after the party resisting the Motion has had an opportunity to present evidence and the record as a matter of law is insufficient to permit a reasonable finding in the plaintiff's favor. As discussed above, this court disagrees there is no legal test under New Mexico common law for whether a plaintiff may recover damages for loss of consortium and rejects the premise "there is no way meaningfully to distinguish as a matter of law among the myriad scenarios that may present as a loss of consortium claim." Opp. 15:16-17. The essential showing of an "intimate familial relationship" does not appear flexible enough to encompass the claim of an adult child who did not live with the decedent, where the claim is based solely on warm but only occasional interactions and financial support during the college years. For all the foregoing reasons, Defendant's Motion is GRANTED with respect to Brett Kolb's loss of consortium claim.


The court appreciates the lives of these consortium claimants are permanently changed by the loss of their decedents, and acknowledges each experiences emotional pain, sorrow, and grief. However, the court finds none has raised a triable issue of fact from which a jury could reasonably conclude any of them had so intertwined a relationship with their decedents that a jury must be permitted to reach the issue of damages, due to the unique quality of the relationship warranting construction as imposing a foreseeable duty on a potential tortfeasor to compensate them for loss of the relationship. New Mexico common law has identified factors pertinent to a finding a plaintiff should be permitted to pursue loss of consortium damages. They are not indicated here. For the all the foregoing reasons, expressing no opinion on any other cause of action or theory of recovery of these or any of the other plaintiffs, IT IS HEREBY ORDERED all the loss of consortium claims challenged in the Motions fail as a matter of law, and the Motions are GRANTED. Summary adjudication of the loss of consortium tort and loss of guidance and counseling claims (only) is accordingly decided in Defendant's favor as to Richard Lamphere, Lavonne Lamphere, Kathleen Attia-Alla, Kristin Ferris, Briana Chacon, Marissa Chacon, Donald Womble, Sr., Jeanne Womble, Donald Womble III, Kristin Womble, Amber Straubing, Gladys Larson, Raymond Larson, and Brett Kolb.


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