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New Tort Rules for Unmarried Partners: the Enhanced Potential for Successful Loss of Consortium and Nied Claims by Same Sex Partners in New Mexico After Lozoya

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New Tort Rules for Unmarried Partners: the Enhanced Potential for Successful Loss of Consortium and Nied Claims by Same Sex Partners in New Mexico After Lozoya Volume 34 Issue 3 Summer 2004 Summer 2004 New Tort Rules for Unmarried Partners: The Enhanced Potential for Successful Loss of Consortium and Nied Claims by Same Sex Partners in New Mexico after Lozoya Flynn Sylvest Recommended Citation Flynn Sylvest, New Tort Rules for Unmarried Partners: The Enhanced Potential for Successful Loss of Consortium and Nied Claims by Same Sex Partners in New Mexico after Lozoya, 34 N.M. L. Rev. 461 (2004). Available at: https://digitalrepository.unm.edu/nmlr/vol34/iss3/4 This Notes and Comments is brought to you for free and open access by The University of New Mexico School of Law. For more information, please visit the New Mexico Law Review website: www.lawschool.unm.edu/nmlr NEW TORT RULES FOR UNMARRIED PARTNERS: THE ENHANCED POTENTIAL FOR SUCCESSFUL LOSS OF CONSORTIUM AND NIED CLAIMS BY SAME SEX PARTNERS IN NEW MEXICO AFTER LOZOYA FLYNN SYLVEST* I. INTRODUCTION On March 24, 2003, the New Mexico Supreme Court produced a new consortium rule in Lozoya v. Sanchez.' Lozoya made New Mexico the first state in the nation to recognize a consortium claim brought by an unmarried cohabitant to a tort victim.2 The court allowed Sara Lozoya's claim for loss of consortium 3 on the basis of domestic partnership 4 and devised a test for assessing loss of consortium claims for a series of "spouse/partner"5 relationships. 6 Lozoya's new consortium rule paved the way for consortium claims brought by same sex partners in New Mexico and indicated a likely change to the relationship requirement of the New Mexico negligent infliction of emotional distress (NIED) rule.7 First, this Note will describe the procedural posture and the facts of the consortium issue of two claims addressed in the case. Next, this Note provides a full discussion of the court's rationale for extending consortium to a new class of plaintiffs, including a detailed description of Lozoya's new consortium rule. The analysis section briefly outlines the history of New Mexico consortium law and develops the two major policy themes from the Lozoya consortium ruling:8 scope of liability and marriage policy. Finally, two implications are addressed: (1) a likely change in the relationship requirement of New Mexico's NIED rule and (2) the availability of the consortium claim, and potentially the NIED claim, to same sex couples. H. STATEMENT OF THE CASE Ubaldo Lozoya suffered a disabling back injury after two rear-end collisions that occurred within a ten-month period in 1999 and 2000.' Each collision resulted in legal claims that were consolidated into a single lawsuit.' "At the time of the first * Class of 2005, University of New Mexico School of Law. 1. 2003-NMSC-009, 66 P.3d 948. 2. Id. 1 1, 17, 66 P.3d at 951, 954. Before overruled, Butcher v. Superior Court, 188 Cal. Rptr. 503 (Ct. App. 1983), overruled by Elden v. Sheldon, 758 P.2d 582, 590 (Cal. 1988), allowed unmarried cohabitants to claim consortium. 3. Lozoya, 2003-NMSC-009 1, 66 P.3d at 951. 4. One term the court used for Sara and Ubaldo's relationship was "domestic partnership." Id. 9, 66 P.3d at 952. 5. The court described the class of plaintiffs covered by the Lozoya test as "spouse/partner[s]." Id. 29 n.5, 66 P.3d at 958 n.5. 6. Id. 27, 66 P.3d at 957. 7. For the New Mexico negligent infliction of emotional distress rule, see Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983), overruled in part by Folz v. State, 110 N.M. 457, 460, 797 P.2d 246, 249 (1990). NIED also involves a requirement for an "intimate family relationship." Ramirez, 100 N.M. at 541,673 P.2d at 825. 8. See infra Part IV. 9. Lozoya, 2003-NMSC-009, f 2,6-7,66 P.3d at 951. 10. Id. 111, 66 P.3d at 952. NEW MEXICO LA W REVIEW [Vol. 34 accident, Ubaldo lived in a domestic partnership with Sara Lozoya, [but] they were not married."" Between the two accidents, Sara and Ubaldo did marry. 2 The trial "court granted a directed verdict [on the consortium claim for] the first accident because [Sara and Ubaldo] were not legally married at the time."'3 The court of appeals certified Lozoya for the New Mexico Supreme Court because of the ' 4 "substantial public interest"' in whether unmarried cohabitants should be entitled ' to recover consortium. The supreme court reversed16 the trial court's directed verdict on the consortium claim and remanded the claim. Before the first accident, Sara and Ubaldo had an intimate relationship 7 and were happy in their relationship with each other. 8 They had "'been together' for over 30 years. ' 9 They had lived in the house they purchased together for fifteen years." "They had three children together," used "the same last name and had filed joint tax returns since at least 1997. 2I' They went dancing and visited friends together. "After the first accident ....Ubaldo became depressed. '23 Sara and Ubaldo's relationship "changed dramatically. '24 Ubaldo's pain caused by injuries from the accident significantly affected the couple's social life.25 Ubaldo "stay[ed] in bed quite a bit,' 26 and the couple's social life and sex life "diminished. 27 Even though their relationship had changed significantly, Sara and Ubaldo married about six months after the first accident occurred.28 II1. THE COURT'S RATIONALE The court concluded, among other things, that "consortium is not limited to married partners., 29 This Note addresses the rationale behind that decision. First, the court acknowledged that New Mexico did not recognize any kind of consortium claim until Romero v. Byers30 allowed a spousal consortium claim in 1994.31 Romero 11. Id. 9,66P.3dat952. 12. Id. 1 14, 66 P.3d at 953. 13. Id. 111, 66 P.3d at 952. Only the consortium claim from the first accident is at issue in this note, but four issues came up on appeal: (1)the trial court's directed verdict disallowing the consortium claim in the first accident at issue in this note, (2) the trial court's judgment of no negligence in the second accident, (3) the trial court's exclusion of evidence that Ubaldo had a vehicle repossessed and that foreclosure proceedings had begun on the Lozoya home, and (4) the trial court's refusal of plaintiffs special verdict form. Id. 13, 66 P.3d at 952-53. 14. Id. 1,66 P.3d at 950. 15. Id. 16. Id. f 1,31, 66 P.3d at 951, 958. 17. Id. 10, 66 P.3d at 952. 18. Id. Ubaldo testified that he and Sara were happy together before the accidents. id. 19. Id. 1 9,66 P.3d at 952. 20. Id. 21. Id. 22. Id. 1 10, 66 P.3d at 952. 23. Id. 24. Id. 25. Id. 26. Id. 27. Id. 28. Id. 9, 66 P.3d at 952. 29. Id. 11, 66 P.3d at 951. 30. 117 N.M. 422, 872 P.2d 840 (1994). 31. Lozoya, 1 15, 66 P.3d at 953 (citing Romero, 117 N.M. 422, 872 P.2d 840). Summer 2004] LOSS OF CONSORTIUM CLAIMS made New Mexico the last state in the nation to recognize spousal consortium. 32 The Lozoya court noted that Romero came to its conclusion by using "the working definition ' 33 of New Mexico's "modem duty rule. 34 The Lozoya court restated the duty rule used in Romero, quoting excerpts from Solon v. WEK Drilling Co. 35 and Calkins v. Cox Estates.36 The excerpt from Solon underscored the relationship between forseeability and' 37 duty. "If it is found that a plaintiff, and injury to that plaintiff, were foreseeable, then the defendant owes a duty to the plaintiff.38 Calkins added that forseeability is determined by whether the plaintiff is "within the zone of danger created by [the tortfeasor' s] actions."39 Beyond this, the court noted that New Mexico's duty rule also includes consideration of policy factors. Specifically, the court stated that the duty rule asks whether there are policy reasons to prevent imposing a duty even when the plaintiff is foreseeable.' The court emphasized a "conspicuous[]"'" absence of any legal status requirement for the relationship between a plaintiff and the tort victim in the duty standard.42 Despite the fact that New Mexico was the last state in the country to recognize spousal consortium, 43 in Fernandezv. Walgreen's Hastings Co.," it became the first jurisdiction to allow grandparents to bring consortium claims "in certain circum- stances. 45 Referring again to the duty standard, the court pointed out that Fernandez held that "it can be foreseeable that negligently causing the death of a twenty-two- month-old child will cause emotional distress to a grandparent who had a close familial relationship with the child."46 The fundamental question that the court next considered was whether the reasoning in Romero and Fernandezcould be used to extend the consortium benefit to unmarried cohabitants. 47 The court started its analysis by noting that no state in 32. Romero, 117 N.M. at 425 n.l, 872 P.2d at 843 n.,cited in Lozoya, 16, 66 P.3d at 953. 33. Id. 1 15, 66 P.3d at 953. 34. Id. 35. 113 N.M. 566, 829 P.2d 645 (1992); Romero, 117 N.M. at 425-26, 872 P.2d at 843-44 (citing Solon, 113 N.M. at 569, 829 P.2d at 648 (holding consortium claim by parents of an adult child invalid)), quoted in Lozoya, 2003-NMSC-009, 15, 66 P.3d at 953.
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