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KULISH v. WEST SIDE UNLIMITED CORP.

3/20/1996

Appellants, Donald E. Kulish and Linda L. Kulish, seek to recover consortium damages arising from the wrongful death of their adult son, Matthew Kulish. Relying on principles of equal protection, they ask us to recognize their right to recover such damages under the common law. We conclude the trial court correctly dismissed the Kulishes' claim for loss of their adult son's consortium. Therefore, we affirm.


I. Background Facts and Proceedings.


Matthew Kulish, an adult, died as a result of injuries sustained when a truck owned by appellee, West Side Unlimited Corporation, and driven by appellee, Douglas Zahradnik, struck his bicycle. Matthew's parents brought two claims against West Side and Zahradnik: a wrongful death claim pursued in the Kulishes' capacity as administrators of their son's estate, and a claim for loss of consortium brought in their individual capacity as parents.


The district court granted the defendants' motion to dismiss the loss of consortium claim, holding that parents of an adult child have no recognized right to recover consortium damages. See Miller v. Wellman Dynamics Corp., 419 N.W.2d 380, 384 (Iowa 1988) (holding a parent's claim for loss of consortium of an adult child is not recognized at common law, by statute, or by rule). In dismissing the Kulishes' claim the court rejected their equal protection argument in which they compared the common law right of adult children to recover for loss of parental consortium with the absence of a common law right of parents to recover for the loss of an adult child's consortium. We granted the Kulishes' application for interlocutory appeal.


II. Scope of Review.


We review a dismissal for failure to state a claim for legal error. Iowa R. App. P. 4; Smith v. Smith, 513 N.W.2d 728, 730 (Iowa 1994). Such a dismissal will be upheld if there is no conceivable state of facts under which the party may recover. Smith, 513 N.W.2d at 730.


III. Overview of Loss of Consortium Claims.


Before addressing the issue raised in this appeal, it is helpful to briefly summarize Iowa's loss of consortium law. Iowa Code section 613.15 (1993) permits an injured person or the administrator of the estate of a deceased person to recover "the value of [545 NW2d Page 862]


services and support as spouse or parent, or both." The term "services," as used in section 613.15, includes intangible consortium damages. Audubon-Exira Ready Mix, Inc. v. Illinois Cent. Gulf R.R., 335 N.W.2d 148, 152 (Iowa 1983). Thus, by statute, a person may recover for the loss of consortium resulting from the injury to or death of that person's spouse. Id. Similarly, adult and minor children may recover consortium damages when their parents are injured or killed. Id. (Although there are limitations on who may sue for such damages, see id. at 152-53, those limitations are irrelevant to the issue presented here.)


Section 613.15 does not encompass losses suffered when one's child is injured or dies. Miller, 419 N.W.2d at 383 (section 613.15 only refers to services "as spouse or parent," not as a child). However, such losses are partially addressed in Iowa Rule of Civil Procedure 8:


A parent, or the parents, may sue for the expense and actual loss of services, companionship and society resulting from injury to or death of a minor child.


(Emphasis added.) Losses resulting from the injury to or death of an adult child are not within the scope of rule 8 and therefore, parents of an adult child have no claim under rule 8 for injuries to or death of their child. Miller, 419 N.W.2d at 383. Furthermore, we have upheld rule 8 against a constitutional challenge, holding

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