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State Farm Mutual Automobile Insurance Co. v. Naomi Luebbers6/14/2005
s such.
Romero does, however, limit the type of damages Brian Jr. can pursue outside a true wrongful death action. The three-year statute of limitations for filing a wrongful death action elapsed before the current case was filed. NMSA 1978, ยง 41-2-2 (1961). Historically, New Mexico has applied the wrongful death statute of limitations strictly. Our Supreme Court held, for example, that the prior wrongful death limitations of one year was not affected by operation of the provision extending limitation for the benefit of minors. Natseway v. Jojola, 56 N.M. 793, 797, 251 P.2d 274, 276 (1952), superseded by statute on other grounds as stated in Lujan v. Regents of Univ. of Cal., 69 F.3d 1511 (10th Cir. 1995). We recently held that the wrongful death statute of limitation is not subject to any discovery rule of accrual. See Clark v. Lovelace Health Sys., Inc., 2004-NMCA-119, 15, 136 N.M. 411, 99 P.3d 232.
Given this history, it is clear that Brian Jr. does not have a full-fledged wrongful death measure of damages available to him. He will not be allowed to claim any pecuniary damages connected to Father, including Father's medical expenses, pain and suffering, lost earnings or the value of Father's life. Like the spouse in Kilkenny v. Kenney, 68 N.M. 266, 361 P.2d 149 (1961), superseded by statute on other grounds as stated in Lujan, 69 F.3d 1511, Brian Jr.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. See Williams v. Hook, 804 P.2d 1131, 1132 n.1 (Okla. 1990) (defining parental consortium as the love, care, companionship, and guidance given by a parent to a child); Ueland, 691 P.2d at 191 (same).
We acknowledge that fetuses pose a particular problem in the context of loss of parental consortium since the emotional aspect of the parent-child relationship is not allowed to be created if the parent dies before the child's birth. The injury here is the inability to form any parental relationship rather than the loss of an established bond. We do not see this as fatal to the claim. The issue is fundamentally one of factual proof. Plaintiffs such as Brian Jr. have the burden of proving the nature and quality of the relationship lost. Proof will necessarily be different for different children. It could be that Brian Jr. will not be able to muster much admissible evidence as to the type of parent Father was likely to be. As in Fitzjerrell, such a difficulty should not defeat the claim as a matter of law. Id. 17. It should only affect the potential value of the claim. See Angelini, 575 N.E.2d at 46. Also, we see no way to meaningfully distinguish a parent's pre-birth death from any number of scenarios involving very young infants whose parents -- such as military personnel -- are killed while away from the home for extended periods of time. Why should a one-week-old infant have a claim as a matter of law, but not a fetus born and surviving? Such a distinction is simply too fine to ensconce as a bright line rule. It is better to allow the fact finder to assess the relative strength of the claims after a full factual hearing.
This approach mirrors the approach adopted by the 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.
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