WA Supreme Court: Whether Loss of Parental Consortium Joinder was Feasible is a Question of Fact Given Parental Declaration
In a 4-3-1-1 of concurrences (lead + 3 concurring; concurrence +2 concurring; concurrence; concurrence), the court again dealt with the issue of claims of loss of parental consortium.
In this case, a parent plaintiff brought suit in 2004 for pretty severe injuries sustained during a forklift accident. 6 months after that suit ended, the three minor children brought suit for consortium.
The standard, laid out in Ueland v. Pengo Hydra-Pull Corp. requires that children bringing separate parental consortium claims have to show that joinder was not feasible. The plaintiff testified via declaration that he only realized that he would no longer be able to interact with his children as he had after he underwent accident related lumbar surgery. That surgery only happened four days before trial.
The court first addressed the minor children's argument that the court's earlier decision saying that a minor child's consortium claim is governed by statute. I will go on records as saying that, while finality is of course an issue in minor consortium claims, the court shouldn't be going contrary to clear statutory authority tolling minor childrens' claims until the age of majority. Of course, you won't hear about judicial activism on this one, as it actually helps corporations. Given my ire, you can guess where the court went with the argument.
The court then addressed that the burden is on the family or friends of the children to appoint a guardian ad litem. This makes sense of course. A not to all counsel: If you have a potential claim for children, you should be getting a G.A.L. involved earlier rather than later. The small amount of cost is nothing compared to the extra level of protection for the children.
The court, looking to the declaration submitted, found that it created a question of fact on whether joinder was feasible, given the father's late realization and the family's dire financial circumstances.
Justice Madsen's concurrence with the result would tread feasibility as a matter of law. Given the facts of this case, I don't see how that is workable. Seems to me, you have to look at the circumstances and credibility of the declarations to determine if it was actually feasible under the plain definition. Justice Madsen's decision seems to give sway to a form of judicial estoppel. Alas, it was only one person's opinion and holds no sway over the law of the case.
Justice Fairhurst wrote to express concern that loss of parental consortium should be treated like any other consortium claim, and not just limited to permanent disability or death.
Justice Stephens, with two others on her side, would have adopted the Court of Appeals in full, setting a low hurdle under Ueland.
The law of the day actually goes, for the most part, to the lead opinion. A majority going with the lead opinion, save for Fairhurst's addendum.