The plaintiff, Judith Bashaway, proposed two arguments in favor of extending loss of consortium claims to members of same-sex couples. First, she argued that the status to bring such a claim should hang on the seriousness of the relationship and not on whether the couple was legally married. Second, she argued in the alternative that the court should create an exception to the marriage requirement because same-sex couples are not legally allowed to be married in Florida and but for that prohibition she would have met the requirements of the action.
The court dismissed these arguments first by reaffirming that loss of consortium claims are based on a legal familial relation. Then the court dismissed her second argument by deferring to the legislature as to who can obtain the legal rights and responsibilities of a marriage relationship.
The opinion none-the-less makes several compelling observations that should factor in favor of Ms. Bashaway should the case go to the Florida Supreme Court. First, the courts have been responsible thus far for modernizing Florida’s loss of consortium law. Second, the policies behind loss of consortium claims are moving away from a property basis and towards a basis in the emotional bonds upon which families are based. In 1952, the Florida Supreme Court declined to extend loss of consortium claims to a wife whose husband had been injured, appealing to the legislature to make any necessary changes to the law. After 19 years of legislative inaction, the Florida Supreme Court finally extended such claims to wives. In the 1994 case of United States v. Dempsey the Florida Supreme Court finally signaled the death knell for property rights as the basis for loss of filial consortium claims. The court noted that the “love, affection, companionship and society” within the family unit are the proper basis for loss of filial consortium claims.
The absence of a contractual relationship in committed, long-term same-sex relationships does not detract from the love and affection on which these relationships are based. Hopefully the Florida Supreme Court will see it the same and extend loss of consortium claims as they have in the past.
(Postscript: the opinion no longer appears on the links from the 1st DCA’s opinions page. I’m not sure what this means as the case dockets from the trial court and 1st DCA don’t show any action since the written opinion… Duval County trial court case number: 2006-CA-008533)