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State Farm Mutual Automobile Insurance Co. v. Naomi Luebbers6/14/2005
ed to dwell at length on the pros and cons of recognizing the claim as such. See Theama v. City of Kenosha, 344 N.W.2d 513 (Wis. 1984), for a good example of the concerns raised and answered by the courts which recognized the claim, including the common law development of loss of consortium generally and the academic commentary as to loss of parental consortium in particular. New Mexico has covered this ground in rapid succession since Romero, and has concluded that loss of consortium claims have a place in our tort jurisprudence. We have simply not had a case previously which presented the issue squarely as to children losing their parents. This is that case. The more pertinent question now concerns the procedural form of the claim.
Confusion as to the form of a claim for loss of parental consortium stems at least in part from our decision in Otero, 1998-NMCA-137, 4, where we speculated " erhaps [claimant's] separate cause of action is barred by Romero." Despite this speculation, Otero clearly stated: " o avoid any implication to the contrary, we first emphasize that there is one issue of law that we are not deciding on this appeal -- the proper procedure for a child to bring a claim of loss of guidance and counseling arising from the wrongful death of a parent." Id. Otero thus does not bar Brian Jr.'s separate cause of action for loss of Father's consortium.
Neither does Romero. The opinion in Romero came out of a consolidated appeal involving two separate cases. One came to the Supreme Court by certiorari and certified question from the Court of Appeals (Romero), and the other came by certified question from the United States District Court in New Mexico (Sears v. Nissan). Romero, 117 N.M. at 424, 872 P.2d at 842. In the Romero portion of the case, the New Mexico Supreme Court considered whether to recognize a claim for loss of spousal consortium, while in the Sears portion of the case, the second question, pertinent here, was the proper measure of damages suffered by minor children from the wrongful death of a parent. Romero, 117 N.M. at 424, 872 P.2d at 842. In response to the Romero question, the Court held that New Mexico would recognize a claim for loss of spousal consortium, and that the loss of consortium claim is a separate cause of action to be brought by the spouse, not to be awarded through the Wrongful Death Act. Id.
In response to the Sears question, the Court pointed out that " he 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." Romero, 117 N.M. at 428, 872 P.2d at 846. "Our opinion today establishing such a cause of action has opened the door for recognition of loss of guidance and counseling as well." Id. The Court then answered the question posed by Sears concerning a measure of damages which would be consistent with the Wrongful Death Act, but not violate the UJI 13-1830 NMRA stricture that " t is not permissible for you [the jury] to be influenced . . . by the loss of the deceased's society to the family." Romero, 117 N.M. at 427, 872 P.2d at 845. Given this posture, we do not believe the Court in Romero limited children to a remedy under the Wrongful Death Act. The Court simply acknowledged the existence of a new specie of pecuniary damage recoverable in wrongful death and answered the question posed in the context of the case presented to it. The Court agreed with other jurisdictions that have "awarded damages for lost guidance and counseling independent of damages for loss of consortium or other losses." Id. at 428, 872 P.2d at 846. Thus, Romero does not bar an independent cause of action for loss of parental consortium a
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