Mueller v. Tepler ( 2014 )

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MARGARET A. MUELLER v. ISIDORE TEPLER ET AL.
(SC 18939)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, and Espinosa, Js.
Argued December 3, 2013—officially released July 16, 2014*
Sean K. McElligott, with whom, on the brief, was
Joshua D. Koskoff, for the appellant (plaintiff Char-
lotte Stacey).
Eric J. Stockman, with whom was Simon I. Allen-
tuch, for the appellees (defendant Iris Wertheim et al.).
Opinion
ROGERS, C. J. The issue that we must resolve in this
certified appeal is whether a person who was prevented
by state law from marrying or entering into a civil union
with her domestic partner at the time that tortious con-
duct occurred, but who can establish that the couple
would have been married if the marriage had not been
barred, may maintain a loss of consortium claim arising
from the tortious conduct. The plaintiffs, Margaret A.
Mueller1 and Charlotte Stacey, brought this medical
malpractice action against the defendants Iris Wertheim
and Iris Wertheim, M.D., LLC,2 seeking damages for
personal injuries suffered by Mueller as a result of the
defendants’ negligence, and for Stacey’s resulting loss
of consortium. The defendants filed a motion to strike
the loss of consortium claims on the ground that the
plaintiffs were not married or in a civil union before
or during the dates of the negligent acts. The trial court
granted the defendants’ motion and rendered judgment
for them on those claims. Stacey appealed to the Appel-
late Court, which affirmed the judgment of the trial
court on the narrower ground that the plaintiffs’ com-
plaint was legally insufficient because they had not
alleged that they would have married or entered into a
civil union before the dates of the defendants’ negligent
acts if they had not been barred from doing so under
the laws of this state. Mueller v. Tepler, 132 Conn. App.
742, 748–49, 33 A.3d 814 (2011). We then granted Sta-
cey’s petition for certification to appeal to this court.
Mueller v. Tepler, 304 Conn. 909, 39 A.3d 1120 (2012).
The issues that we must resolve on appeal are: (1) Did
the Appellate Court properly affirm the trial court’s
judgment in favor of the defendants on grounds distinct
from those that the trial court considered when granting
the motion instead of remanding the case to the trial
court with direction to provide Stacey with an opportu-
nity to amend her complaint?; and (2) If the answer to
the first question is no, and Stacey amends her com-
plaint on remand to allege that she and Mueller would
have been married when the underlying tort occurred
if they had not been barred from doing so under the law
of this state, should the trial court grant the defendants’
motion to strike Stacey’s loss of consortium claims on
the ground that the plaintiffs were not married or in a
civil union at that time?3 We answer both questions in
the negative.
The opinion of the Appellate Court sets forth the
following facts alleged by the plaintiffs in their third
amended complaint, and procedural history. ‘‘In August,
2001, Mueller was referred to Wertheim after testing
by her gynecologist indicated that she had cancer. In
October, 2001, Wertheim performed surgery to remove
several cancerous tumors from Mueller. These tumors
were examined by a pathologist, who identified the
cancer as pseudomyxoma peritonei, a cancer of the
appendix. Wertheim either failed to review the pathol-
ogy report or misinterpreted its findings. As a result of
this negligence, Mueller was mistakenly diagnosed with
ovarian cancer. Mueller remained under the care of
Wertheim until March 5, 2004. Although the error was
discovered in April, 2005, Mueller’s cancer had pro-
gressed to a stage where some of the tumors no longer
could be removed surgically.
‘‘On January 10, 2006, Mueller commenced the pre-
sent action against the defendants seeking recovery
for medical malpractice. The third amended complaint,
dated November 19, 2007, alleges, in relevant part, that
the defendants are liable to [Stacey] for loss of consor-
tium. In support of these claims, the amended complaint
contains the following allegations regarding [Stacey’s]
relationship with Mueller: (1) ‘At all times since June,
1985, [Stacey and Mueller] have been domestic partners
and have lived together as partners for the past twenty-
one years’; (2) ‘On or about November 12, 2005, [Stacey
and Mueller] were joined in a civil union under Connect-
icut’s civil union statute’; and (3) ‘Since 1985, [Stacey
and Mueller] . . . have supported each other both
financially and emotionally.’ ’’ (Footnotes omitted.)
Mueller v. Tepler, supra, 132 Conn. App. 744–45.
‘‘On December 6, 2007, the defendants filed a motion
to strike [Stacey’s] loss of consortium claims. In this
motion, the defendants argued that [Stacey] and Mueller
‘had not entered into a legal civil union/marriage prior
to or during the dates of the alleged negligent acts [and
therefore Stacey] cannot recover for loss of consortium
. . . .’ [Stacey] filed an objection to this motion [in
which she] argued that ‘because civil unions were
unavailable at the time . . . Mueller was injured, [the
complaint] states a valid claim for loss of consortium
against [the] defendants.’4
‘‘On February 11, 2008, the trial court granted the
defendants’ motion to strike, stating: ‘I simply feel that
the defendants are quite correct in pointing out that a
consortium claim is not sustainable by people who are
not either in a legal marriage or in a legal civil union
at the time of the wrong.’ ’’ Id., 745–46. Thereafter, the
trial court rendered judgment for the defendants on the
loss of consortium claims. The jury ultimately returned
a verdict in favor of Mueller’s estate on the claims of
medical malpractice. Id., 746.
Stacey then appealed to the Appellate Court, claiming
that she was entitled to damages for loss of consortium
because, ‘‘although she was not married to Mueller
before the defendants’ negligent actions occurred, she
and Mueller would have formalized their relationship,
but for the unconstitutional deprivation of their right
to do so under the provisions of state law existing at
that time.’’ Id., 746. The defendants contended that the
complaint was defective because the plaintiffs had not
made the allegation that they were ‘‘married or had
entered into a civil union . . . or that [they] wanted
to . . . before [Mueller’s] injury in 2001.’’ 5 The Appel-
late Court agreed with the defendants, concluding that,
even if it ‘‘were to assume that a complaint that includes
[an allegation that the plaintiffs would have been mar-
ried but for the unconstitutional deprivation of their
right to do so] states a legally sufficient claim for loss
of consortium, the plaintiff[s] did not plead this fact in
the third amended complaint.’’ Id., 748. The Appellate
Court concluded that, in the absence of such an allega-
tion, the plaintiffs’ situation was no different than that
of an opposite sex couple who were not married at the
time that the underlying tort occurred, for whom a
cause of action for loss of consortium is not available.
See Gurliacci v. Mayer, 218 Conn. 531, 564, 590 A.2d
914 (1991) (claim for loss of spousal consortium cannot
be maintained when plaintiff was not married to victim
of underlying tort when tort occurred). Accordingly,
the Appellate Court affirmed the judgment of the trial
court on this alternative ground. This certified appeal
followed.
I
Stacey’s first claim on appeal is that the Appellate
Court improperly affirmed the judgment of the trial
court in favor of the defendants on an alternative ground
that the defendants had not raised in the trial court.
Specifically, Stacey claims that: (1) the Appellate Court
improperly reviewed the defendants’ unpreserved claim
that the complaint’s loss of consortium claims were
legally insufficient because the complaint did not allege
that the plaintiffs would have been married or entered
into a civil union at the time of the tortious conduct if
they had not been barred from doing so under the law
of this state; (2) even if the unpreserved claim was
reviewable, the Appellate Court improperly determined
that the motion to strike should be granted on that
alternative ground; and (3) even if the Appellate Court
properly reviewed and resolved the defendants’ unpre-
served claim, it improperly affirmed the judgment of
the trial court in favor the defendants instead of
remanding the case to the trial court with direction
to provide Stacey with an opportunity to replead. We
conclude that Stacey’s first and second claims are not
reviewable because she failed to object to review of the
defendants’ unpreserved claim in the Appellate Court.
With respect to Stacey’s third claim that the Appellate
Court improperly affirmed the judgment of the trial
court in favor of the defendants on this alternative
ground instead of remanding the case to the trial court,
we conclude that the Appellate Court’s ruling is revers-
ible under the plain error doctrine.
The following additional procedural history is rele-
vant to our resolution of this issue. In the plaintiffs’
objection to the defendants’ motion to strike the loss
of consortium claims, they contended that the rationale
of the holding in Gurliacci that ‘‘the formal marriage
relation forms the necessary touchstone to determine
the strength of commitment between the two individu-
als which gives rise to the existence of consortium
between them in the first instance’’; (internal quotation
marks omitted) Gurliacci v. Mayer, supra, 218 Conn.
564; ‘‘only has logical force . . . if the couple was capa-
ble of entering into a ‘formal marriage relation’ prior to
the injury.’’ The plaintiffs further contended that ‘‘[t]he
absence of a civil union between them prior to the
date of the injury was simply a function of the legal
impossibility and does not in any way bear upon the
strength of their commitment.’’6 During oral argument
on the motion to strike, the plaintiffs argued that the
principle that a person ‘‘can’t . . . marry into a consor-
tium claim is premised entirely on the idea that you
have the right to get married and you chose not to.’’
They further argued that they ‘‘could not consecrate
their commitment to each other in a civil union partner-
ship because . . . they didn’t have that ability before
October, 2005.’’ See footnote 4 of this opinion. The trial
court acknowledged that there might be a distinction
between couples who could marry but chose not to
and those ‘‘who might have wanted to formalize their
relationship but were unable to do so under Connecticut
law . . . .’’ The trial court also recognized that, if this
court ultimately were to conclude that same sex couples
have a constitutional right to marry, such a ruling might
allow the court to ‘‘go where I think [the plaintiffs are]
trying to send us,’’ and that ‘‘it may be that the law will
develop to the point where [Stacey’s loss of consortium]
claims will be cognizable . . . .’’7 The trial court con-
cluded, however, that the law had not yet reached that
point and granted the defendants’ motion to strike on
the ground that the plaintiffs had not been married at
the time of the alleged tortious conduct.
By the time that the plaintiffs filed their main brief
in the Appellate Court, this court had issued its decision
in Kerrigan v. Commissioner of Public Health, 289
Conn. 135, 263, 957 A.2d 407 (2008), concluding that
this state’s marriage laws were unconstitutional under
the state constitution to the extent that they barred
same sex couples from marrying. See footnote 7 of
this opinion. The plaintiffs contended in their brief that
‘‘[r]ecognizing that same-sex spouses who would have
been married absent legal impossibility may claim loss
of consortium damages is the ‘wise judicial policy’ when
the sole reason that they were not legally married at
the time of the underlying tortious conduct was a now
repudiated public policy against legal recognition of
lifelong same-sex relationships.’’ (Emphasis in original.)
In response, the defendants contended, inter alia, that
the plaintiffs had failed to allege in their complaint that
they would have entered into a civil union or a marriage
before or during the dates of the alleged tortious con-
duct if they had been legally allowed to do so. Accord-
ingly, they argued, the complaint was ‘‘devoid of any
allegations which would suggest that . . . Stacey’s
claim is any different from a heterosexual cohabitating
with an unmarried lover.’’ As we have indicated, the
Appellate Court agreed with the defendants’ contention
and affirmed the judgment of the trial court in favor of
the defendants on that ground.
Stacey claims on appeal to this court that the Appel-
late Court improperly resolved the case on the basis of
an alternative ground for affirmance that the defendants
had failed to raise in the trial court, namely, that the
complaint was legally insufficient because it failed to
allege that the plaintiffs would have been married or
in a civil union at the time of the tortious conduct if
doing so had not been barred under the law of this
state.8 The defendants respond that, even if their claim
was unpreserved and there were no exceptional circum-
stances justifying review of it by the Appellate Court,9
Stacey did not file a reply brief in the Appellate Court
objecting to review of the defendants’ unpreserved
claim or arguing that it should be rejected on the merits.
Accordingly, the defendants argue, Stacey’s claims that
the Appellate Court improperly reviewed the issue and
improperly resolved it are abandoned.10 Stacey
responds that she had no obligation to object to the
Appellate Court’s review of an unpreserved claim or to
respond to it on the merits.
We agree with the defendants that, as a general rule,
a party may not raise a claim in a certified appeal to
this court that it failed to raise in the Appellate Court.
State v. Fauci, 282 Conn. 23, 26 n.1, 917 A.2d 978 (2007)
(in certified appeal, ‘‘[w]e ordinarily decline to consider
claims that [were] not raised properly before the Appel-
late Court’’). Stacey had not explained, and we see no
reason, why this rule should not apply to claims raised
in a certified appeal to this court concerning the review-
ability of unpreserved claims raised by the opposing
party in the Appellate Court. It would undermine the
interests of judicial economy, the orderly administra-
tion of justice and principles of fairness to allow a
party to stand silent when the opposing party raises an
unpreserved claim in the Appellate Court and then, after
the unpreserved claim has been resolved in favor of
the party that raised it, to allow the party that stood
silent to object to review of the claim for the first time
on appeal to this court. Accordingly, we conclude that
Stacey’s claims that the Appellate Court improperly
reviewed and improperly resolved the defendants’
unpreserved claim that her complaint was legally insuf-
ficient because she failed to allege that she and Mueller
would have been married or in a civil union if they had
not been barred from doing so under the laws of this
state are not reviewable.
We also conclude, however, that the Appellate
Court’s affirmance of the judgment of the trial court in
favor of the defendants should be reversed pursuant
to the plain error doctrine.11 Under that doctrine, ‘‘a
reviewing court may in the interests of justice notice
plain error not brought to the attention of the [lower]
court.’’ (Internal quotation marks omitted.) Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Con-
necticut, Inc., 311 Conn. 123, 149, 84 A.3d 840 (2014).
‘‘[T]he plain error doctrine is reserved for truly extraor-
dinary situations [in which] the existence of the error
is so obvious that it affects the fairness and integrity
of and public confidence in the judicial proceedings.’’
(Internal quotation marks omitted.) Id., 149–50. A ruling
that ignores a plainly applicable rule of practice falls
within this category of extraordinary situations. See In
re Jonathan P., 23 Conn. App. 207, 211, 579 A.2d 587
(1990) (plain error doctrine applies when ‘‘a rule of
practice is ignored’’). Practice Book § 10-44 expressly
provides that ‘‘[w]ithin fifteen days after the granting
of any motion to strike, the party whose pleading has
been stricken may file a new pleading . . . .’’ Thus, a
trial court has no discretion to render judgment for the
moving party upon granting a motion to strike, unless
it is clear that the nonmoving party will be unable to
replead. See Larobina v. McDonald, 274 Conn. 394, 401,
876 A.2d 522 (2005) (‘‘[i]f it is clear on the face of
the complaint that it is legally insufficient and that an
opportunity to amend it would not help the plaintiff,
we can perceive no reason why the defendant should
be prohibited from claiming that he is entitled to judg-
ment as a matter of law’’). Because, in the present case,
the trial court did not strike Stacey’s claims on the basis
articulated by the Appellate Court, Stacey never was
afforded the mandated opportunity to cure the defective
pleading. Moreover, Stacey has indicated that, if she is
afforded the right to file a new pleading, she will file
a substitute complaint alleging that she and Mueller
would have been married or in a civil union but for
the fact that they were legally barred from doing so.12
Accordingly, we conclude that it was plain error for
the Appellate Court to affirm the judgment of the trial
court in favor of the defendants on this alternative
ground instead of remanding the case to the trial court
with direction to allow Stacey to amend her complaint.13
II
Stacey’s second claim on appeal is that, if she amends
the complaint on remand to allege that she and Mueller
would have been married or in a civil union when the
underlying tort occurred if they had not been barred
from doing so under the laws of this state, the trial
court must deny the defendants’ motion to strike her
loss of consortium claims pursuant to Gurliacci v.
Mayer, supra, 218 Conn. 564, on the ground that the
plaintiffs were not married at that time.14 We agree.
‘‘We begin by setting out the well established standard
of review in an appeal from the granting of a motion
to strike. Because a motion to strike challenges the legal
sufficiency of a pleading and, consequently, requires no
factual findings by the trial court, our review of the
court’s ruling on the [defendants’ motion] is plenary.
. . . We take the facts to be those alleged in the com-
plaint that has been stricken and we construe the com-
plaint in the manner most favorable to sustaining its
legal sufficiency. . . . Thus, [i]f facts provable in the
complaint would support a cause of action, the motion
to strike must be denied.’’ (Internal quotation marks
omitted.) Violano v. Fernandez, 280 Conn. 310, 317–18,
907 A.2d 1188 (2006).
We next review the substantive law governing spou-
sal loss of consortium claims. This court first recog-
nized spousal loss of consortium claims in Hopson v.
St. Mary’s Hospital, 176 Conn. 485, 496, 408 A.2d 260
(1979). See id. (‘‘either spouse has a claim for loss of
consortium shown to arise from a personal injury to
the other spouse caused by the negligence of a third
person’’). We recognized in that case that an injury to
one spouse also damages the spousal relationship, the
‘‘intangible elements’’ of which had ‘‘been defined as the
constellation of companionship, dependence, reliance,
affection sharing and aid which are legally recognizable,
protected rights arising out of the civil contract of mar-
riage’’; (internal quotation marks omitted) id., 487; and
held that the uninjured spouse should be compensated
for any such damage. Id., 496.
This court also has held, however, that a spousal
loss of consortium claim may be maintained only if the
plaintiff and the injured spouse were married ‘‘at the
time of the actionable injury to the plaintiff.’’ Gurliacci
v. Mayer, supra, 218 Conn. 562. In Gurliacci, the plain-
tiff, Louis Gurliacci, raised a loss of consortium claim
arising from an injury to his wife that had occurred
while the couple was engaged to be married and cohab-
iting, but before they were actually married. Id., 561.
This court stated that ‘‘[t]he language and reasoning in
Hopson focus on the marital relationship as it existed
on the date of the injury. There is no indication in
Hopson or later Connecticut decisions to support . . .
Gurliacci’s claim that a person who is not married to
the victim of the tort at the time of the injury may,
upon marriage, bring a claim for loss of consortium.’’
(Footnote omitted.) Id., 562–63. This court explained
that the rationale for the marriage requirement ‘‘is that
the formal marriage relation forms the necessary touch-
stone to determine the strength of commitment
between the two individuals which gives rise to the
existence of consortium between them in the first
instance.’’15 (Internal quotation marks omitted.) Id., 564.
This court also emphasized that the ‘‘intangible factors’’
that the loss of spousal consortium claim is intended
to protect ‘‘are legally recognizable, protected rights
arising out of the civil contract of marriage.’’ (Empha-
sis in original; internal quotation marks omitted.) Id.,
562. Accordingly, the court concluded that Gurliacci
could not maintain a claim for loss of consortium.
Id., 564.
The defendants in the present case contend that Sta-
cey’s position is no different than that of the plaintiff
in Gurliacci and, therefore, that our decision in that
case is controlling here. Stacey contends that, to the
contrary, her position is different than Gurliacci’s posi-
tion because she was barred from marrying or entering
into a civil union with Mueller under the law of this
state before the tortious conduct occurred.16 In addition,
she points to the factors that this court considered in
Mendillo v. Board of Education, 246 Conn. 456, 485–96,
717 A.2d 1177 (1998), in determining that it should not
recognize claims for loss of parental consortium. In the
alternative, Stacey contends that denying her the right
to maintain a loss of consortium claim would violate
the equal protection clauses of the state constitution
under Kerrigan because, just as this court held in that
case that it was unconstitutional to deprive same sex
couples the right to marry, it is unconstitutional to
deprive same sex couples of this right that this court
has held to be dependent on marriage. In response, the
defendants contend that Stacey’s reliance on Kerrigan
is misplaced because the holding of that case was
not retroactive.
We agree with Stacey’s claim that this court should
expand the common-law claim for loss of consortium
to members of couples who were not married when
the tortious conduct occurred, but who would have
been married if the marriage had not been barred by
state law.17 This court previously has recognized that
‘‘[i]nherent in the common law is a dynamic principle
which allows it to grow and to tailor itself to meet
changing needs within the doctrine of stare decisis,
which, if correctly understood, was not static and did
not forever prevent the courts from reversing them-
selves or from applying principles of common law to
new situations as the need arose.’’ (Internal quotation
marks omitted.) Craig v. Driscoll, 262 Conn. 312, 338–
39, 813 A.2d 1003 (2003). Consistent with this principle,
‘‘[t]he issue of whether to recognize a common-law
cause of action . . . is a matter of policy for the court
to determine based on the changing attitudes and needs
of society.’’ Id., 339. Accordingly, it is clear that this
court can expand the common-law action for loss of
consortium as required to address new societal atti-
tudes and situations.
We also conclude that we should expand the action
for loss of consortium to plaintiffs in Stacey’s position.
As this court recognized in Kerrigan v. Commissioner
of Public Health, supra, 289 Conn. 261, the attitudes
and needs of society with respect to same sex relation-
ships and marriage have changed significantly in recent
decades. See id. (‘‘as we engage over time in the inter-
pretation of our state constitution, we must consider
the changing needs and expectations of the citizens of
our state’’ [internal quotation marks omitted]); see also
id., 262 (‘‘our conventional understanding of marriage
must yield to a more contemporary appreciation of the
rights entitled to constitutional protection’’). Specifi-
cally, society has come to accept the view that commit-
ted same sex couples who wish to marry are entitled
to the same social and legal recognition as committed
opposite sex couples who wish to marry.18 Accordingly,
we agree with Stacey that, in light of this new societal
attitude, we must reevaluate this court’s decisions in
Hopson and Gurliacci.
We begin with this court’s holding in Gurliacci v.
Mayer, supra, 218 Conn. 564, that a plaintiff who was
not married to the injured person when the underlying
tort occurred cannot maintain a loss of consortium
claim. That determination was based on the presump-
tion that, if a couple had the level of mutual commitment
that customarily leads to marriage and wanted to be
married before the underlying tort occurred, the couple
would have been married. See id. (‘‘the formal marriage
relation forms the necessary touchstone to determine
the strength of commitment between the two individu-
als’’ [internal quotation marks omitted]); see also Gilles-
pie-Linton v. Miles, 58 Md. App. 484, 492, 473 A.2d 947
(1984) (‘‘[p]resumably, when parties wish social and
legal recognition of their relationship, they marry’’). The
court in Gurliacci also implicitly assumed that existing
marriage laws were consistent with public policy and,
therefore, that any couple that wanted to be married
and whose marriage would be consistent with public
policy could be married. As this court recognized in
Kerrigan v. Commissioner of Public Health, supra, 289
Conn. 135, however, the marriage laws that existed at
the time that the tortious conduct in the present case
occurred were not consistent with public policy
because they did not reflect existing societal attitudes
toward same sex relationships and marriage. Because
the plaintiffs in the present case could not have been
married before the date of the tortious conduct even
if they had the requisite commitment and desire, and
because the bar on same sex marriage was inconsistent
with public policy, we conclude that it would be both
illogical and inequitable to require proof that the plain-
tiffs were actually married when the underlying tort
occurred as a prerequisite to bringing a loss of consor-
tium claim.
We further conclude that none of the public policies
that this court considered in Hopson and Gurliacci
would be undermined by allowing a member of a same
sex couple to maintain a loss of consortium claim if he
or she can prove that the couple would have been mar-
ried when the underlying tort occurred if not for the
fact that they were barred from doing so under the laws
of this state. The public policy in favor of recognizing
such claims is the policy favoring the compensation of
individuals for the loss of a ‘‘variety of intangible rela-
tions which exist between spouses living together in
marriage . . . [including] affection, society, compan-
ionship and sexual relations.’’ (Citation omitted; inter-
nal quotation marks omitted.) Hopson v. St. Mary’s
Hospital, supra, 176 Conn. 487. Gurliacci identified
the following three public policies in favor of limiting
compensation to married couples: if the couple is not
married, the couple presumably did not have the
‘‘strength of commitment . . . which gives rise to the
existence of consortium between them in the first
instance’’; (internal quotation marks omitted) Gurliacci
v. Mayer, supra, 218 Conn. 564; ‘‘an individual should
not be permitted to marry a cause of action’’; id., 564
n.28; and ‘‘liability for injury must be delineated at some
point for public policy reasons.’’ Id. Similarly, the court
in Hopson recognized that loss of consortium claims
should not be recognized if doing so would impair rea-
sonable expectations and reliance interests in a ‘‘serious
way . . . .’’ Hopson v. St. Mary’s Hospital, supra,
495–96.
Addressing each of these public policy factors in turn,
we conclude, first, that the ‘‘intangible elements’’ of the
relationship between the members of a same sex couple
that would have been married when the underlying tort
occurred if they had not been barred from doing so
under state law are the same as the ‘‘intangible ele-
ments’’ of the marital relationship.19 Accordingly, a
member of such a couple has the same interest in being
compensated for the loss of these ‘‘intangible elements’’
as a member of a married couple. Second, as we have
explained, marriage cannot logically serve as a proxy
for the existence of the commitment that ‘‘gives rise to
the existence of consortium . . . in the first instance’’;
(internal quotation marks omitted) Gurliacci v. Mayer,
supra, 218 Conn. 564; when marriage is not an option.
Third, if a member of a same sex couple can prove
that the couple would have been married when the
underlying tort occurred if not for the fact that they
were barred from doing so, it would be illogical and
unfair to characterize a marriage after the tort occurred
as a marriage to ‘‘a cause of action’’; id., 564 n.28; instead
of the formalization of a relationship that already had
given rise to ‘‘the existence of consortium’’; (internal
quotation marks omitted) id., 564; and already had all
of the hallmarks of a marriage. Fourth, the requirement
that a member of an unmarried couple who raises a
loss of consortium claim must prove that (1) the couple
would have been married when the underlying tort
occurred but for the existence of a bar on such mar-
riages under the laws of this state and (2) the marriage
would not have been inconsistent with public policy
places clear limits on liability for such claims.20 Finally,
as in Hopson, we conclude that allowing a plaintiff
to maintain a loss of consortium claim under these
circumstances will not impair preexisting expectations
or reliance interests in any serious way. Hopson v. St.
Mary’s Hospital, supra, 176 Conn. 495–96. It is highly
unlikely that the rule in Gurliacci categorically barring
loss of consortium claims in the absence of a formal
contract of marriage at the time of the underlying tort
guided the conduct of any potential tortfeasor. Cf. id.,
496 n.5 (prior rule barring loss of consortium claims
‘‘may not be reasonably supposed to have determined
the conduct of the litigants . . . particularly when in
its origin it was the product of institutions or conditions
which have gained a new significance or development
with the progress of the years’’).
We further conclude that allowing plaintiffs in Sta-
cey’s position to maintain a loss of consortium claim
would not undermine any of the public policies that
this court identified in Mendillo v. Board of Education,
supra, 246 Conn. 456, when it considered whether it
should recognize loss of parental consortium claims.
Those factors include the public policy against imposing
third party liability on tortfeasors; see id., 480–85; and
whether extending the cause of action to the new class
of plaintiffs would create ‘‘significant risks of affecting
conduct in ways that are undesirable as a matter of
policy’’; id., 483; require this court to impose arbitrary
limitations on the cause of action; id., 486; impose an
undue economic burden on the general public; id., 487;
or create a risk of multiple recoveries. Id., 489, 494. In
addition, this court has considered the decisions of our
sister states; id., 490–92; and the degree to which the
new loss of consortium claim resembles a spousal loss
of consortium claim. Id., 493.
We recognize, as this court did in Mendillo, that we
must start from the presumption that no such liability
will be imposed absent ‘‘satisfaction of a special policy
inquiry.’’ 21 Id., 480. As the court also recognized in
Mendillo, an important factor supporting this presump-
tion is that expanding liability in this way may create
‘‘significant risks of affecting conduct in ways that are
undesirable as a matter of policy.’’ Id., 483. It is clear,
however, that this consideration comes into play pri-
marily when this court is considering third party liability
based on an underlying tort of a particular type when
deterring the tort might also have the unintended conse-
quence of deterring socially beneficial conduct.22 In the
present case, the defendants have not specifically iden-
tified any particular form of socially useful conduct
that would be deterred if this court allowed Stacey
to maintain a loss of consortium claim. Accordingly,
although we recognize that the imposition of third party
liability is generally disfavored, this particular factor
supporting that public policy has no application in the
present case.
Recognizing loss of consortium claims under the cir-
cumstances of the present case also would not require
this court to impose arbitrary limitations on the cause
of action; id., 486; impose an undue economic burden
on the general public; id., 487; or create a risk of multiple
recoveries. Id., 489. As we have indicated, the require-
ment that a member of an unmarried couple who raises
a loss of consortium claim must prove that the couple
would have been married when the underlying tort
occurred but for the existence of a bar on such mar-
riages under the laws of this state and that public policy
does not disfavor such marriages places inherent limits
on the scope of such claims. Accordingly, the economic
burden created by our recognition of such claims is
inherently limited. Indeed, according to the defendants
in the present case, Stacey is the only plaintiff in this
state who is seeking to maintain a loss of spousal con-
sortium claim under these circumstances.23
In addition, the risk of multiple recoveries under
these circumstances is no greater than the risk of multi-
ple recoveries by couples who were married when the
underlying tort occurred. See Hopson v. St. Mary’s Hos-
pital, supra, 176 Conn. 493–94 (difficulty of assessing
damages for loss of spousal consortium claims does
not militate against recognizing such claims). The
requirement that the plaintiff prove that the couple
would have been married or in a civil union when the
underlying tort occurred if they had not been barred
from doing so necessarily means that only one person
will be able to bring a loss of consortium claim as the
result of an injury to another person.24
Finally, we consider the decisions of our sister states.
The parties have identified, and our research has
revealed, only one case in which the precise issue
before us has been addressed, namely, Charron v.
Amaral, 451 Mass. 767, 889 N.E.2d 946 (2008). In Char-
ron, the plaintiff, Cynthia Kalish, sought loss of consor-
tium damages arising from injuries suffered by her
domestic partner, Michelle Charron, before the couple
was married. Id., 768–69. As in the present case, the
couple had been unable to marry under the laws of
Massachusetts when the underlying tort occurred, but
married after the Supreme Judicial Court of Massachu-
setts held in Goodridge v. Dept. of Public Health, 440
Mass. 309, 342, 798 N.E.2d 941 (2003), that the bar on
same sex marriages violated the state constitution.
Charron v. Amaral, supra, 769. The trial court rendered
summary judgment in favor of the defendants on Kal-
ish’s loss of consortium claim on the ground that the
couple was not married when the underlying tort
occurred. Id., 768. On appeal, Kalish claimed that she
was entitled to maintain the loss of consortium claim
because she and Charron would have been married if
the marriage had not been unconstitutionally barred,
and that ‘‘all the laws that required (exclusively opposite
sex) marriage as a prerequisite to certain rights were
derivatively unconstitutional’’ under Goodridge. Id.,
772.
The Massachusetts Supreme Judicial Court rejected
Kalish’s claim. The court in Charron pointed out that,
in Goodridge, the court had ‘‘stayed the entry of judg-
ment of its decision for 180 days to permit the [l]egisla-
ture to take such action as it may deem appropriate.
. . . The purpose of the stay was to afford the [l]egisla-
ture an opportunity to conform the existing statutes to
the provisions of the Goodridge decision.’’ (Citation
omitted; internal quotation marks omitted.) Id. The
court in Charron concluded that, because the court
in ‘‘Goodridge granted same-sex couples the right to
choose to be married after a specific date,’’ and did not
state that ‘‘people in same-sex, committed relationships
. . . would be considered married before they obtained
a marriage license’’ or that ‘‘it was amending, in any
way, the laws concerning the benefits available to cou-
ples who marry to make up for past discrimination
against same-sex couples,’’ Kalish was not entitled to
maintain a loss of consortium claim. Id., 773. The court
also observed that, ‘‘however sympathetic we may be to
the discriminatory effects the marriage licensing statute
had before our Goodridge decision, as counsel con-
ceded at oral argument, to allow Kalish to recover for
a loss of consortium if she can prove she would have
been married but for the ban on same-sex marriage
could open numbers of cases in all areas of law to the
same argument.’’ Id.
Relying on Charron, the defendants in the present
case contend that allowing Stacey to maintain a loss
of consortium claim would amount to a retroactive
application of the constitutional holding in Kerrigan
and would open the floodgates to claims for other mari-
tal benefits. We find Charron unpersuasive. The issue
before us in this case is whether we should expand the
judicially created right to maintain a loss of consortium
claim as ‘‘a matter of policy . . . based on the changing
attitudes and needs of society’’; Craig v. Driscoll, supra,
262 Conn. 339; not whether, as a remedy for the consti-
tutional violation that this court recognized in Kerri-
gan, same sex couples who can prove that they would
have been married as of a particular date if their mar-
riage had not been barred should be deemed to have
been married as of that date or be entitled retroactively
to a particular statutory benefit. Because these two
issues involve different considerations, an affirmative
answer to the former question does not imply an affir-
mative answer to the latter question. Most significantly,
in determining whether we should expand a common-
law action, we are not constrained by any considera-
tions of the constitutional separation of powers or
respect for the authority of a coordinate branch of gov-
ernment, as we would be when determining whether a
plaintiff is retroactively entitled to a statutory benefit.25
Cf. Charron v. Amaral, supra, 451 Mass. 774 (Marshall,
C. J., concurring) (‘‘[d]elaying the implementation of a
[constitutional] decision is a matter of the deference
owed by one branch of government to the other in the
task of effecting an orderly system of laws’’).
For the foregoing reasons, we conclude that, if Stacey
amends the complaint on remand to allege that she and
Mueller would have been married or in a civil union
when the underlying tort occurred if they had not been
barred from doing so under the laws of this state, the
trial court must deny the defendants’ motion to strike
her loss of consortium claims.26 As this court did in
Hopson, however, we emphasize that persons in Sta-
cey’s position, i.e., those who were barred from mar-
rying when the underlying tortious conduct occurred,
may not maintain a loss of consortium claim arising
from such conduct when the injured person’s ‘‘claim
for physical injuries has been concluded by judgment or
settlement or the running of [the statute of] limitations’’
before the date that this opinion is officially released.
Hopson v. St. Mary’s Hospital, supra, 176 Conn. 496;
see also Voris v. Molinaro, 302 Conn. 791, 797, 31 A.3d
363 (2011) (‘‘settlement of the predicate claim extin-
guishes the derivative claim for loss of consortium’’);
Marone v. Waterbury, 244 Conn. 1, 10–11, 707 A.2d 725
(1998) (judgments that are not by their terms limited
to prospective application are presumed to apply retro-
actively to pending cases).
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the trial court’s judgment in favor of the defen-
dants on Stacey’s loss of consortium claims and to
remand the case to the trial court affirming that ruling
on the motion to strike, but with direction to allow
Stacey to amend her complaint, and, in the event that
Stacey does amend her complaint, for further proceed-
ings in accordance with this opinion.
In this opinion the other justices concurred.
* July 16, 2014, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Mueller died on January 10, 2009. Thereafter, the trial court granted a
motion substituting the executrix of her estate as a plaintiff. References
herein to the plaintiffs are to Mueller and Stacy.
2
The original complaint also named Isidore Tepler and Hematology Oncol-
ogy, P.C., as defendants. The claims against those defendants ultimately
were settled. Accordingly, all references to the defendants in this opinion
are to Iris Wertheim and Iris Wertheim, M.D., LLC.
3
The first issue on which this court granted certification was: ‘‘Did the
Appellate Court properly affirm the trial court’s grant of the defendants’
motion to strike based on grounds distinct from those that the trial court
considered when granting the motion?’’ Mueller v. Tepler, supra, 304 Conn.
909. As we explain more fully in part I of this opinion, we conclude that
Stacey’s claim that the Appellate Court improperly determined that the
motion to strike should be granted on the basis of the defendants’ unpre-
served alternative ground for affirmance is unreviewable in this certified
appeal because Stacey failed to object to the review of the unpreserved
claim in the Appellate Court. The sole question that is reviewable—because,
as we discuss in part I of this opinion, it involves plain error—is whether,
upon determining that the trial court properly granted the defendants’ motion
to strike, the Appellate Court properly affirmed the judgment of the trial
court in favor of the defendants instead of affording Stacey an opportunity
to replead. Accordingly, we have reframed the first certified question. See,
e.g., State v. Ouellette, 295 Conn. 173, 184, 989 A.2d 1048 (2010) (court may
reformulate certified question to conform to issue actually presented).
The second issue on which this court granted certification was: ‘‘Did the
Appellate Court properly conclude that [Stacey] was not entitled to loss of
consortium damages where she was not married to her domestic partner
at the time of the partner’s injury because neither civil unions nor same
sex marriages were recognized at that time?’’ Mueller v. Tepler, supra, 304
Conn. 909. The Appellate Court did not reach the merits of this issue,
however, because it affirmed the judgment of the trial court on the ground
that the plaintiffs’ complaint had not alleged that Stacey and Mueller would
have been married or in a civil union at the time of the alleged tortious
conduct if doing so had not been legally impossible under the laws of this
state. Accordingly, we also have reframed the second certified question. As
we explain in footnote 14 of this opinion, this claim is reviewable because,
in light of our resolution of the first claim, it is likely to arise on remand.
4
The Appellate Court noted that ‘‘the law first afforded [Stacey] the ability
to formalize her relationship with Mueller in 2005, under our civil union
law. See General Statutes (Supp. 2006) §§ 46b-38aa through 46b-38oo; see
also Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 148, 957
A.2d 407 (2008). The third amended complaint alleges that the defendants
ceased caring for Mueller on March 5, 2004. The effective date of the civil
union statute was October 1, 2005. Public Acts 2005, No. 05-10, § 1.’’ Mueller
v. Tepler, supra, 132 Conn. App. 745 n.5.
5
The Appellate Court stated that ‘‘the complaint does not allege that
[Stacey] and Mueller would have formalized their relationship before March
5, 2004, the date Mueller left the defendants’ care, had they . . . been
allowed to do so under state law.’’ Mueller v. Tepler, supra, 132 Conn. App.
745. At oral argument before this court, Stacey agreed that, to prevail on
her loss of consortium claims, she must prove that she and Mueller would
have been married or entered into a civil union by this date if they had been
able to do so. Although the defendants in their brief refer repeatedly to
October, 2001, the approximate date that Wertheim performed surgery on
Mueller, as the date by which, according to them, the plaintiffs would have
had to have been married or entered into a civil union for Stacey to raise
her loss of consortium claims, they have not challenged the Appellate Court’s
determination to the contrary on appeal to this court. Accordingly, we
assume for purposes of this opinion that March 5, 2004, is the operative date.
6
In addition, the plaintiffs contended that the ‘‘[d]efendants should not
be given a free pass simply because it was impossible for the couple to
enter a civil union prior to the injury’’ and ‘‘[t]he existence of a marriage is
a reasonable place to draw the line in situations where a couple is able to
marry prior to the injury.’’
7
The trial court issued its oral ruling granting the defendants’ motion to
strike on February 11, 2008. The trial court granted the defendants’ motion
for judgment on the loss of consortium claims on August 20, 2008. On October
28, 2008, this court released its decision in Kerrigan v. Commissioner of
Public Health, 289 Conn. 135, 957 A.2d 407 (2008), concluding that the
state statutory scheme prohibiting marriage between same sex couples was
unconstitutional under the state constitution. Id., 260.
8
‘‘This court previously has held that [o]nly in [the] most exceptional
circumstances can and will this court consider a claim, constitutional or
otherwise, that has not been raised and decided in the trial court. . . . This
rule applies equally to alternate grounds for affirmance. . . . New Haven
v. Bonner, 272 Conn. 489, 498, 863 A.2d 680 (2005); see also Thomas v. West
Haven, 249 Conn. 385, 390 n. 11, 734 A.2d 535 (1999) ([t]he appellee’s right
to file a [Practice Book] § 63-4 [a] [1] statement has not eliminated the duty
to have raised the issue in the trial court . . . ), cert. denied, 528 U.S. 1187,
120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000); Peck v. Jacquemin, 196 Conn. 53,
62 n.13, 491 A.2d 1043 (1985) (compliance with [Practice Book § 63-4 (a)
(1)] is not to be considered in a vacuum; particularly to be considered is
its linkage with [Practice Book § 60–5] which provides in part that this court
shall not be bound to consider a claim unless it was distinctly raised at the
trial or arose subsequent to the trial ). Such exceptional circumstances may
occur where a new and unforeseen constitutional right has arisen between
the time of trial and appeal or where the record supports a claim that a
litigant has been deprived of a fundamental constitutional right and a fair
trial. . . . An exception may also be made where consideration of the ques-
tion is in the interest of public welfare or of justice between the parties.’’
(Footnote omitted; internal quotation marks omitted.) Perez-Dickson v.
Bridgeport, 304 Conn. 483, 498–500, 43 A.3d 69 (2012).
9
The defendants concede that their claim was unpreserved, but contend
that exceptional circumstances warranted review of the claim because the
plaintiffs did not raise the claim that they would have been married or in
a civil union before or during the dates of the tortious conduct if doing so
had not been barred under the law of this state until they filed their brief
in the Appellate Court. As the foregoing procedural history shows, however,
the plaintiffs had claimed consistently in the trial court that Stacey was
entitled to raise a loss of consortium claim even though the plaintiffs were
not married or in a civil union at the time of the tortious conduct because
they had been barred from doing so under this state’s laws. We can perceive
no reason why the plaintiffs would have made this claim except to emphasize
the point that they would have been married or entered into a civil union
at the relevant time if they had not been barred from doing so. Although
this court’s intervening decision in Kerrigan v. Commissioner of Public
Health, supra, 289 Conn. 135, that the prohibition on same sex marriages
violated the state constitution, bolstered Stacey’s claim that barring her from
seeking loss of consortium damages would be unfair when she and Mueller
could not marry under the laws of the state, regardless of the strength of
their commitment to each other, and, indeed, is critical to the success of
her claim; see part II of this opinion; the essential nature of the claim, i.e.,
that Stacey was entitled to raise a loss of consortium claim because the
plaintiffs would have been married or in a civil union at the relevant time
if they had not been barred from doing so, has not changed since the plaintiffs
filed their opposition to the defendants’ motion to strike. Accordingly, we
can perceive no reason why the defendants could not have raised the claim
that they raised in their main brief to the Appellate Court in the trial court.
We also note, however, that the defendants could have asked the Appellate
Court to review the unpreserved alternative ground for affirmance on the
ground that the unpreserved claim would be likely to arise on remand if
Stacey prevailed on her claim on appeal. Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 164–66, 84 A.3d
840 (2014) (reviewing court may review unpreserved alternative ground for
affirmance that is likely to arise on remand if basic prerequisites for appellate
review are met).
10
The defendants also contend that the trial court’s ruling on their motion
to strike was ‘‘subsumed’’ by the Appellate Court’s ruling that the complaint
was legally insufficient because it failed to allege that the plaintiffs would
have been married or in a civil union at the time of the tortious conduct if
they had not been barred from doing so under state law. Although we are
not entirely certain what this claim means, to the extent that they are
claiming that the Appellate Court’s ruling was merely duplicative of the trial
court’s ruling, we disagree. The trial court held that Stacey could not prevail
on her loss of consortium claim even if the plaintiffs would have been
married or would have entered into a civil union before the tortious conduct
occurred if they had not been barred from doing so in this state. The
Appellate Court’s ruling was based on the assumption that Stacey could
have prevailed on her loss of consortium claim if the complaint had included
this allegation and she could later prove it. See Mueller v. Tepler, supra,
132 Conn. App. 748 (‘‘[e]ven if we were to assume that a complaint that
[alleged that the plaintiffs would have been married or entered into a civil
union if they had not been barred from doing so under the law of this state]
states a legally sufficient claim for loss of consortium, [Stacey] did not plead
this fact in the third amended complaint’’). Thus, the Appellate Court’s ruling
provided Stacey with a potential route for success on her claim that the
trial court’s ruling had foreclosed. We conclude in part II of this opinion
that, under the circumstances of this case, a complaint alleging that the
plaintiffs would have been married if they had not been barred from doing
so would be legally sufficient, and the defendants make no claim that,
contrary to her representations on appeal, Stacey will be unable to amend
the complaint to make the requisite allegation in good faith. But see footnote
26 of this opinion. Accordingly, Stacey must be provided with the opportunity
to replead.
11
Although Stacey did not request plain error review in her brief to this
court, we recently have stated that a reviewing court can invoke the plain
error doctrine sua sponte as long ‘‘as the court provides an opportunity for
the parties to be heard . . . and the other threshold conditions for review
are satisfied.’’ Blumberg Associates Worldwide, Inc. v. Brown & Brown of
Connecticut, Inc., 311 Conn. 123, 161–62, 84 A.3d 840 (2014). After oral
argument before this court, we ordered the parties to submit supplemental
briefs on the question of whether, assuming that the Appellate Court properly
upheld the trial court’s granting of the motion to strike Stacey’s loss of
consortium claims on an alternative ground, it was plain error to affirm
the judgment in favor of the defendants without providing Stacey with an
opportunity to file a new pleading pursuant to Practice Book § 10-44.
12
The defendants contend that application of the plain error doctrine is
inappropriate under the circumstances of this case because Stacey did not
claim that she and Mueller would have been married if they had not been
legally barred from doing so until she filed her appeal in the Appellate Court.
We have concluded otherwise. See footnote 9 of this opinion. The defendants
also contend that the Appellate Court did not commit plain error because
amending the complaint would be futile. Specifically, they contend that
Stacey cannot amend her complaint to render it legally sufficient because
she cannot allege that she and Mueller were married when the tort occurred,
as required by Gurliacci. As we have explained, however, to render the
complaint legally sufficient, Stacey need only allege that she and Mueller
would have been married when the tort occurred if they had not been
legally barred from doing so. Accordingly, we reject this claim.
13
In light of this conclusion, we reject the defendants’ claim that Stacey
lacked standing to maintain a loss of consortium claim because she failed
to allege that, but for the fact that she was barred from marrying or entering
into a civil union in this state, she would have been married when the
underlying tortious conduct occurred.
14
As we have indicated, the Appellate Court did not reach this question
because it concluded that the plaintiffs’ complaint did not adequately allege
that they would have been married or in a civil union at the relevant time
if they had been able to do so. See footnote 3 of this opinion. We address
the question in the interest of judicial economy, on the assumption that it
will arise on remand. Cumberland Farms, Inc. v. Groton, 247 Conn. 196,
201 n.5, 719 A.2d 465 (1998) (in certified appeal, this court, in interest of
judicial economy, addressed issue that had been raised in Appellate Court
and in petition for certification, but that had not been addressed by Appel-
late Court).
15
In addition, the court observed in Gurliacci v. Mayer, supra, 218 Conn.
564 n.28, that ‘‘[o]ther reasons often stated in support of the requirement
of an existing marital relationship at the time of the injury are: (1) an
individual should not be permitted to marry a cause of action . . . (2) an
individual marries the person in her existing state of health, and thereby
assumes the risk that the resulting injury will result in a deprivation . . .
and (3) liability for injury must be delineated at some point for public policy
reasons.’’ (Citations omitted.)
16
Stacey contends that, under these circumstances, as a matter of logic
and equity, instead of applying the bright line rule of Gurliacci, we should
consider the public policy factors that underlay this court’s decisions in
Hopson and Gurliacci. The defendants respond that it is unclear whether
Stacey is claiming that ‘‘every person can file a loss of consortium claim
and a jury will examine the nature and quality of the relationship to determine
if damages are appropriate’’; that this court should ‘‘[c]reate an exception
to the common law for unmarried gay couples who were not civilly united
before the injury occurred’’; or that this court should treat Stacey and Mueller
‘‘as retroactively civilly united . . . .’’ We conclude that, under a fair reading
of Stacey’s brief, she is making none of these claims. Rather, she is claiming
that, as a matter of law, a person who can prove that his or her domestic
partner was injured by tortious conduct, and that he or she would have
married or entered into a civil union with the injured person before the
tortious conduct occurred if doing so had not been barred, is entitled to
maintain a loss of consortium claim, consistent with the principles enunci-
ated in Hopson and Gurliacci.
17
Accordingly, we need not address Stacey’s constitutional claim. See
Moore v. McNamara, 201 Conn. 16, 20, 513 A.2d 660 (1986) (‘‘[t]his court
has a basic judicial duty to avoid deciding a constitutional issue if a noncon-
stitutional ground exists that will dispose of the case’’).
18
See also Lawrence v. Texas, 539 U.S. 558, 571–72, 123 S. Ct. 2472, 156
L. Ed. 2d 508 (2003) (‘‘[W]e think that our laws and traditions in the past
half century are of most relevance here. These references show an emerging
awareness that liberty gives substantial protection to adult persons in decid-
ing how to conduct their private lives in matters pertaining to sex.’’); id.,
572 (‘‘[t]his emerging recognition should have been apparent when [Bowers
v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), in
which the United States Supreme Court upheld the constitutionality of laws
prohibiting sodomy] was decided’’); In re Marriage Cases, 43 Cal. 4th 757,
821, 183 P.3d 384, 76 Cal. Rptr. 683 (2008) (‘‘There can be no question
but that, in recent decades, there has been a fundamental and dramatic
transformation in this state’s understanding and legal treatment of gay indi-
viduals and gay couples. California has repudiated past practices and policies
that were based on a once common viewpoint that denigrated the general
character and morals of gay individuals, and at one time even characterized
homosexuality as a mental illness rather than as simply one of the numerous
variables of our common and diverse humanity.’’); In re Marriage Cases,
supra, 822 (‘‘the change in this state’s past treatment of gay individuals and
homosexual conduct is reflected in scores of legislative, administrative, and
judicial actions that have occurred over the past [thirty] or more years’’);
Goodridge v. Dept. of Public Health, 440 Mass. 309, 334, 798 N.E.2d 941
(2003) (‘‘Massachusetts has responded supportively to the changing realities
of the American family . . . and has moved vigorously [in cases dating
back to 1993] to strengthen the modern family in its many variations. . . .
Moreover, we have repudiated the common-law power of the [s]tate to
provide varying levels of protection to children based on the circumstances
of birth [in a case dating back to 1987]. . . . [Under case law dating back
to 1980], [t]he best interests of the child standard does not turn on a parent’s
sexual orientation or marital status.’’ [Citations omitted; internal quotation
marks omitted.]); Lewis v. Harris, 188 N.J. 415, 438, 908 A.2d 196 (2006)
(‘‘[t]imes and attitudes have changed, and there has been a developing
understanding that discrimination against gays and lesbians is no longer
acceptable in this [s]tate, as is evidenced by various laws and judicial deci-
sions [dating back to 1993] prohibiting differential treatment based on sexual
orientation’’); Baker v. State, 170 Vt. 194, 223–24, 744 A.2d 864 (1999)
(‘‘[W]hatever claim may be made in light of the undeniable fact that federal
and state statutes—including those in Vermont—have historically disfavored
same-sex relationships, more recent legislation [dating back to 1977] plainly
undermines the contention. . . . In 1992, Vermont was one of the first states
to enact statewide legislation prohibiting discrimination in employment,
housing, and other services based on sexual orientation. . . . Sexual orien-
tation is among the categories specifically protected against hate-motivated
crimes in Vermont. . . . Furthermore, as noted earlier, recent enactments
of the General Assembly have removed barriers to adoption by same-sex
couples, and have extended legal rights and protections to such couples
who dissolve their ‘domestic relationship.’ ’’ [Citations omitted.]). We note
that Connecticut repealed its law prohibiting sodomy in 1969; see Public
Acts 1969, No. 828, § 214 (repealing General Statutes [Rev. to 1968] § 53-
216); long before the United States Supreme Court declared such laws
unconstitutional in Lawrence v. Texas, supra, 578; enacted legislation prohib-
iting discrimination on the basis of sexual orientation in 1991; see Public
Acts 1991, No. 91-58, codified as amended at General Statutes § 46a-81a et
seq.; and enacted legislation in 2000 providing that, for purposes of adoption,
‘‘[t]he best interests of a child are promoted when the child is part of a loving,
supportive and stable family, whether that family is a nuclear, extended, split,
blended, single parent, adoptive or foster family.’’ Public Acts 2000, No. 00-
228, codified as amended at General Statutes § 45a-727a (3). Accordingly,
we conclude that the societal needs and expectations in this state regarding
same sex relationships that underlay this court’s decision in Kerrigan
emerged no later than the societal changes discussed in these cases, which
was clearly long before March 5, 2004, the date of the tortious conduct in
the present case.
19
We recognize that, unlike for married couples, for same sex couples
who could not marry under the laws of this state, these ‘‘intangible elements’’
were not ‘‘legally recognizable, protected rights . . . .’’ Hopson v. St. Mary’s
Hospital, supra, 176 Conn. 487. Thus, a member of a same sex couple could
not, for example, sue the other member for divorce and seek alimony or
support payments for failing to provide these intangible elements. This court
recognized in Gurliacci, however, that it is ‘‘the strength of commitment
between the two individuals which gives rise to the existence of consortium
between them in the first instance’’; (internal quotation marks omitted)
Gurliacci v. Mayer, supra, 218 Conn. 564; and the ‘‘formal marriage relation’’;
(internal quotation marks omitted) id.; is merely a proxy for that commit-
ment. To conclude that a member of a committed same sex couple who
was barred from securing his or her legal right to the consortium of his or
her domestic partner is barred from seeking compensation for the loss of
such consortium because he or she had no legally enforceable right to it
would be circular and unfair.
20
Contrary to the defendants’ suggestion in their brief, nothing in this
opinion supports the proposition that ‘‘every person can file a loss of consor-
tium claim and a jury will examine the nature and quality of the relationship
to determine if damages are appropriate . . . .’’ See footnote 16 of this
opinion. Rather, to raise such a claim, a plaintiff who was not married to
the victim of the underlying tort when the tort occurred must prove that
the couple would have been married but for the existence of a prohibition
on such marriages, and that public policy does not disfavor such marriages.
When public policy disfavors the marriage of a particular couple—when,
for example, the individuals were too young or too closely related to marry
under the laws of this state—it would violate the public policy against
the creation of consortium between such persons to recognize a loss of
consortium claim, regardless of the couple’s level of commitment to each
other. It is clear, therefore, that such couples may not maintain a loss of
consortium claim.
With respect to couples who could have been married before the underly-
ing tort occurred, nothing in this opinion changes the bright line rule that
this court adopted in Gurliacci, under which the courts will conclusively
presume that, if the couple was not married, they did not have ‘‘the strength
of commitment . . . which gives rise to the existence of consortium
between them in the first instance.’’ (Internal quotation marks omitted.)
Gurliacci v. Mayer, supra, 218 Conn. 564. We recognize that there may be
situations in which the presumption may not reflect reality, as, for example,
when a husband-to-be was injured as he proceeded down the church aisle
to be married. Nevertheless, the rule’s general reasonableness as applied
to couples who could have married before the underlying injury occurred
and its ease of application outweigh the potential harshness of its application
in outlying cases.
21
This court stated in Mendillo v. Board of Education, supra, 246 Conn.
480, that ‘‘the imposition of third party liability on a tortfeasor is an exception
to the general rule of the scope of tort liability that requires satisfaction of
a special policy inquiry.’’ The court explained that ‘‘[o]ur reluctance to
recognize causes of action in tort based on third party liability, in the absence
of satisfaction of a special policy inquiry, is based in part upon our realization
that the scope of the tortfeasor’s third party liability, measured only by pure
rules of foreseeability could lead to unlimited liability.’’ (Internal quotation
marks omitted.) Id., 482. ‘‘Moreover, where the primary victim of the tortious
behavior recovers for her own injuries, those direct consequences of the
wrongful conduct are compensated and the wrongdoer does not escape
liability.’’ Id.
22
See Mendillo v. Board of Education, supra, 246 Conn. 483, citing
Zamstein v. Marvasti, 240 Conn. 549, 560–61, 692 A.2d 781 (1997) (court
declined to impose upon psychiatrist duty of care to suspected child abuser
because doing so could ‘‘discourage[e] such professionals . . . from per-
forming sexual abuse evaluations of children altogether’’); see Zamstein v.
Marvasti, supra, 557 (declining to ‘‘recognize that psychiatrists, or other
mental health professionals, who evaluate children for evidence of sexual
abuse, owe a duty to exercise reasonable care in the performance of the
evaluation, to the person suspected of committing the abuse’’); see also
Mendillo v. Board of Education, supra, 483, citing Fraser v. United States,
236 Conn. 625, 634–35, 574 A.2d 811 (1996) (psychotherapist owes no duty
of care to third party injured by psychotherapist’s outpatient ‘‘based partly
on the risk of inhibiting the openness that is essential to the therapist-
patient relationship and partly on the risk of over-encouraging involuntary
hospitalization of the mentally ill’’).
23
We conclude later in this opinion that a plaintiff who was prevented
from marrying under circumstances like those in the present case may not
maintain a loss of consortium claim if the statute of limitations for the
underlying tort has expired or if the underlying claim was concluded by
judgment or settlement before the official release date of this opinion. Cf.
Hopson v. St. Mary’s Hospital, supra, 176 Conn. 496.
24
Even if a plaintiff could prove that, had the marriage not been statutorily
barred, he or she would have been married to an injured person who was
already married to another person, recovery of loss of consortium damages
would be barred because bigamy violates public policy.
25
In this regard, it is important to note that this court has on occasion
left the crafting of a remedy for an unconstitutional legislative act to the
legislature in the first instance. See Sheff v. O’Neill, 238 Conn. 1, 45–46, 678
A.2d 1267 (1996) (‘‘In light of the complexities of developing a legislative
program that would respond to the constitutional deprivation that the plain-
tiffs had established, we concluded, in [Horton v. Meskill, 172 Conn. 615,
653, 376 A.2d 359 (1977)], that further judicial intervention should be stayed
to afford the General Assembly an opportunity to take appropriate legislative
action. . . . Prudence and sensitivity to the constitutional authority of coor-
dinate branches of government counsel the same caution in this case.’’
[Citation omitted; internal quotation marks omitted.])
26
The defendants suggest that Stacey cannot prevail on her loss of consor-
tium claims because she has not alleged and cannot establish that it was
impossible for the plaintiffs to have been married or to have entered into
a civil union before the date of the underlying tortious conduct. Specifically,
they contend that, before the tortious conduct occurred, the plaintiffs could
have married or entered a civil union in a place where same sex marriage
or civil unions were permitted, such as Vermont or the Netherlands. Although
we recognize that these issues may arise on remand, we decline to address
them because the record is inadequate for this court to determine whether
the plaintiffs could have married or entered a civil union elsewhere before
the underlying tortious conduct occurred, as either a practical or a legal
matter, and, more fundamentally, because the parties have not briefed the
question of whether Stacey must establish that it was impossible for the
plaintiffs to have married or entered a civil union at that time or, instead,
whether she can prevail if she can establish that they would have been
married or in a civil union but for the fact that they were barred from doing
so under the laws of this state.