MUELLER v. TEPLER

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Supreme Court of Connecticut.

Margaret A. MUELLER v. Isidore TEPLER et al.

No. 18939.

Decided: July 16, 2014

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, and ESPINOSA, Js. Sean K. McElligott, with whom, on the brief, was Joshua D. Koskoff, for the appellant (plaintiff Charlotte Stacey). Eric J. Stockman, with whom was Simon I. Allentuch, for the appellees (defendant Iris Wertheim et al.).

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 conduct 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 Appellate Court, which affirmed the judgment of the trial court on the narrower ground that the plaintiffs' complaint 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 Stacey'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 opportunity to amend her complaint?; and (2) If the answer to the first question is no, and Stacey amends her complaint 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 pathology 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 progressed to a stage where some of the tumors no longer could be removed surgically.

“On January 10, 2006, Mueller commenced the present 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 consortium. 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 Connecticut'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. at 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., at 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., at 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., at 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 Appellate 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 married 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., at 748. The Appellate Court concluded that, in the absence of such an allegation, 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' unpreserved 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 reversible under the plain error doctrine.

The following additional procedural history is relevant 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 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. at 564, 590 A.2d 914; “only has logical force ․ if the couple was capable 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 consortium 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 partnership 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 concluded, 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 conduct if they had been legally allowed to do so. Accordingly, 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 Appellate 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 circumstances 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 Appellate 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 administration 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 insufficient 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 Connecticut, Inc., 311 Conn. 123, 149, 84 A.3d 840 (2014). “[T]he plain error doctrine is reserved for truly extraordinary 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., at 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 judgment 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. at 564, 590 A.2d 914, 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 complaint that has been stricken and we construe the complaint 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 spousal loss of consortium claims. This court first recognized 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 marriage”; (internal quotation marks omitted) id., at 487, 408 A.2d 260; and held that the uninjured spouse should be compensated for any such damage. Id., at 496, 408 A.2d 260.

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. at 562, 590 A.2d 914. In Gurliacci, the plaintiff, 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 cohabiting, but before they were actually married. Id., at 561, 590 A.2d 914. 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., at 562–63, 590 A.2d 914. This court explained that the rationale for the marriage requirement “is that the formal marriage relation forms the necessary touchstone 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., at 564, 590 A.2d 914. 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.” (Emphasis in original; internal quotation marks omitted.) Id., at 562, 590 A.2d 914. Accordingly, the court concluded that Gurliacci could not maintain a claim for loss of consortium. Id., at 564, 590 A.2d 914.

The defendants in the present case contend that Stacey'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 position 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 themselves 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., at 339, 813 A.2d 1003. Accordingly, it is clear that this court can expand the common-law action for loss of consortium as required to address new societal attitudes 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. at 261, 957 A.2d 407, the attitudes and needs of society with respect to same sex relationships and marriage have changed significantly in recent decades. See id. (“as we engage over time in the interpretation 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., at 262, 957 A.2d 407 (“our conventional understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection”). Specifically, society has come to accept the view that committed 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. at 564, 590 A.2d 914, 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 presumption 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 individuals” [internal quotation marks omitted] ); see also Gillespie–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. at 135, 957 A.2d 407, 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 plaintiffs were actually married when the underlying tort occurred as a prerequisite to bringing a loss of consortium 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 married 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 relations which exist between spouses living together in marriage ․ [including] affection, society, companionship and sexual relations.” (Citation omitted; internal quotation marks omitted.) Hopson v. St. Mary's Hospital, supra, 176 Conn. at 487, 408 A.2d 260. 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. at 564, 590 A.2d 914; “an individual should not be permitted to marry a cause of action”; id., at 564 n. 28, 590 A.2d 914; 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 reasonable expectations and reliance interests in a “serious way․” Hopson v. St. Mary's Hospital, supra, at 495–96, 408 A.2d 260.

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 elements” 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. at 564, 590 A.2d 914; 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., at 564 n. 28, 590 A.2d 914; instead of the formalization of a relationship that already had given rise to “the existence of consortium”; (internal quotation marks omitted) id., at 564, 590 A.2d 914; 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 marriages 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. at 495–96, 408 A.2d 260. 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., at 496 n. 5, 408 A.2d 260 (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 Stacey'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. at 456, 717 A.2d 1177, 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., at 480–85, 717 A.2d 1177; 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., at 483, 717 A.2d 1177; require this court to impose arbitrary limitations on the cause of action; id., at 486, 717 A.2d 1177; impose an undue economic burden on the general public; id., at 487, 717 A.2d 1177; or create a risk of multiple recoveries. Id., at 489, 494, 717 A.2d 1177. In addition, this court has considered the decisions of our sister states; id., at 490–92, 717 A.2d 1177; and the degree to which the new loss of consortium claim resembles a spousal loss of consortium claim. Id., at 493, 717 A.2d 1177.

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., at 480, 717 A.2d 1177. As the court also recognized in Mendillo, an important factor supporting this presumption 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., at 483, 717 A.2d 1177. It is clear, however, that this consideration comes into play primarily 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 consequence of deterring socially beneficial conduct.22 In the present case, the defendants have not specifically identified 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 circumstances of the present case also would not require this court to impose arbitrary limitations on the cause of action; id., at 486, 717 A.2d 1177; impose an undue economic burden on the general public; id., at 487, 717 A.2d 1177; or create a risk of multiple recoveries. Id., at 489, 717 A.2d 1177. As we have indicated, the requirement 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 marriages 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 consortium claim under these circumstances.23

In addition, the risk of multiple recoveries under these circumstances is no greater than the risk of multiple recoveries by couples who were married when the underlying tort occurred. See Hopson v. St. Mary's Hospital, supra, 176 Conn. at 493–94, 408 A.2d 260 (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. 767,451 Mass. 767, 889 N.E.2d 946 (2008). In Charron, the plaintiff, Cynthia Kalish, sought loss of consortium damages arising from injuries suffered by her domestic partner, Michelle Charron, before the couple was married. Id., at 768–69, 889 N.E.2d 946. 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 Massachusetts 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, at 769, 889 N.E.2d 946. The trial court rendered summary judgment in favor of the defendants on Kalish's loss of consortium claim on the ground that the couple was not married when the underlying tort occurred. Id., at 768, 889 N.E.2d 946. 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., at 772, 798 N.E.2d 941.

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 judgment of its decision for 180 days to permit the [l]egislature to take such action as it may deem appropriate․ The purpose of the stay was to afford the [l]egislature 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 couples who marry to make up for past discrimination against same-sex couples,” Kalish was not entitled to maintain a loss of consortium claim. Id., at 773, 798 N.E.2d 941. 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 conceded 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 marital 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. at 339, 813 A.2d 1003; not whether, as a remedy for the constitutional violation that this court recognized in Kerrigan, same sex couples who can prove that they would have been married as of a particular date if their marriage 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 affirmative answer to the latter question. Most significantly, in determining whether we should expand a common-law action, we are not constrained by any considerations of the constitutional separation of powers or respect for the authority of a coordinate branch of government, as we would be when determining whether a plaintiff is retroactively entitled to a statutory benefit .25 Cf. Charron v. Amaral, supra, 451 Mass. at 774, 889 N.E.2d 946 (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 Stacey's position, i.e., those who were barred from marrying 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. at 496, 408 A.2d 260; see also Voris v. Molinaro, 302 Conn. 791, 797, 31 A.3d 363 (2011) (“settlement of the predicate claim extinguishes 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 retroactively 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 defendants 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 proceedings in accordance with this opinion.

In this opinion the other justices concurred.

ROGERS, C.J.

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