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Bailey v. Allderdice9/26/2005
A loss of consortium claim does not arise when the injury to the spouse that causes the loss occurs before marriage. That rule is subject to a limited exception that has no application here. Because Marilyn Wallin-Bailey fails to qualify under the narrow exception and does not otherwise persuasively argue that the general rule is inapplicable to this case, we affirm the summary dismissal of her claim for loss of consortium.
Marilyn Wallin-Bailey and Allan Bailey lived together for 16 years before Allan was injured in an automobile accident with David Allderdice on February 18, 2003. There does not appear to be any dispute that theirs was a long-term, stable relationship. Allan Bailey commenced this personal injury action for damages arising from the auto accident in April 2003. Allan and Marilyn were married less than two weeks later. Two days after their marriage, the Baileys amended the complaint, adding the loss of consortium claim on behalf of Marilyn and the marital community.
The trial court found that though the 'alleged facts of the long-standing meretricious relationship between the Baileys present{ed} a sympathetic argument for maintaining the loss of consortium claim,' the fact that the Baileys were not married at the time of injury barred the claim under well-established Washington law. We agree and affirm.
Green v. A.P.C., is a very recent statement of the majority rule that this state generally follows. That was a products liability action by the Greens against manufacturers of a pregnancy drug, Diethylstilbestrol (DES). The wife suffered a T-shaped uterus due to toxic exposure to DES while in utero. The injury was unknown to her until years later--after she was married and attempted to have children.
One of the claims in that action was a claim by Joshua Green for loss of consortium stemming from his wife's difficult pregnancy. The supreme court started its analysis of this claim by noting that this court had correctly identified the rule in this and most jurisdictions: 'a loss of consortium claim does not lie when the injury to the spouse that caused the loss of consortium occurred prior to the marriage.' The supreme court went on to identify the three policy reasons for the general rule. They include: '(1) a person should not be permitted to marry a cause of action; (2) one assumes with a spouse the risk of deprivation of consortium arising from any prior injury; {and} (3) as a matter of policy, tort liability should be limited.'
The court then specifically rejected the majority rule as unfair under the specific facts of an unknown latent toxic injury. The Green court reasoned: (1) the husband could not have married a lawsuit if the wife did not yet know of her injury; (2) the husband could not assume a risk of which he had no knowledge; and (3) it is surely foreseeable that a future spouse or close relative might suffer loss of consortium damages. The court concluded: 'The best argument for rejecting the majority rule, however, is its fundamental unfairness in the toxic exposure context: loss of consortium damages should be available for a premarital injury if the injured spouse either does not know or cannot know of the injury.'
Here, Wallin-Bailey argues that there should be a further extension of the exception in Green. The rationale she argues is that to deny her relief when she is in a long-standing, marital-like relationship is fundamentally unfair. While there may be strong arguments why the policies underlying the majority rule that this state follows do not apply here, Wallin-Bailey does not make them. Thus, to rely solely on the allegation that the rule is fundamentally unfair is simply not persuasive i
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