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State Farm Mutual Automobile Insurance Co. v. Naomi Luebbers6/14/2005
ce. Id. One of the defenses was that Crumpton could not be considered a "person" within the meaning of § 1983 because when the killing occurred he was a non-viable fetus. Crumpton, 947 F.2d at 1420. The Ninth Circuit reasoned that the loss of the liberty interest in familial relations -- like loss of consortium -- can only be felt after birth when the plaintiff was unquestionably a "person." Id. at 1422-23. Crumpton held that the chid was permitted to recover and his cause of action did not accrue until his birth. Id. at 1423-24.
The facts here present a classic example of a temporal disconnect between a wrongful act and the injury it ultimately causes. See Restatement (Second) of Torts § 433(c) cmt. f (1965) (acknowledging that the mere lapse of time -- even if great -- is not sufficient by itself to negate a finding of causation). Father was killed while Brian Jr. was in utero. That event could not cause the type of injury contemplated by the notion of loss of consortium. Injury can only occur upon birth. At birth, when the tort was completed (if there was an accident) and the cause of action accrued, Brian Jr. was unquestionably a "human being" living with the named insured within the meaning of the policy.
State Farm might argue -- though it has not done so as yet -- that Brian Jr.'s cause of action accrued or matured outside the policy period. State Farm's policy provides coverage for "accidents . . . that take place during the policy period." The "Policy Period" is the time shown on the declaration page "and is for successive periods of six months each for which you pay the renewal premium." The "accident" clearly occurred during the "Policy Period." Assuming O'Brien properly renewed (which the record does not reflect and we do not assume), Brian Jr. also suffered his injury during the "Policy Period." The record is simply not sufficiently developed with regard to these facts or the proper rule of coverage. We leave this issue for the parties to litigate properly on remand.
3. Is loss of consortium of a parent available to Brian Jr. as a cause of action separate from a wrongful death claim?
Citing Romero v. Byers, 117 N.M. 422, 424, 872 P.2d 840, 842 (1994), and Otero v. City of Albuquerque, 1998-NMCA-137, 4, 125 N.M. 770, 965 P.2d 354, State Farm suggests that New Mexico has refused to recognize an independent claim for loss of parental consortium, and instead requires that a minor child bring such a claim as part of a wrongful death action. Luebbers argues that because New Mexico has clearly recognized an independent cause of action for loss of spousal consortium, an independent cause of action for a grandmother who lost the companionship of her granddaughter (Fernandez v. Walgreen Hastings Co., 1998-NMSC-039, 33, 126 N.M. 263, 968 P.2d 774), and even an independent cause of action for those persons not legally married but engaged in a spousal-type relationship (Lozoya v. Sanchez, 2003-NMSC-009, 31, 133 N.M. 579, 66 P.3d 948), it is reasonable to afford the same right to a child who suffers the loss of a parent. Recently, we held that parents and adult siblings are not legally barred from asserting claims of loss of consortium, but rather such claims are subject to proof as to the quality of the relationship lost. Fitzjerrell v. City of Gallup, 2003-NMCA-125, 17, 134 N.M. 492, 79 P.3d 836.
Fitzjerrell strengthens Luebbers' argument as to the state and direction of the law of loss of consortium in New Mexico and we hold that 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. Given the development of loss of consortium law in New Mexico, we see no ne
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