Coleman v. Sandoz Pharmaceuticals Corp.

660 N.E.2d 424, 74 Ohio St. 3d 492

Opinions

The following questions have been certified to us by the United States District Court for the Northern District of Ohio, Western Division, pursuant to S.Ct. Prac.R. XVIII:

“The first questions [sic ] of law presented in the instant case, therefore, is whether Gallimore [v. Children’s Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, 617 N.E.2d 1052] is retroactive so that Brandi Coleman may maintain a cause of action for loss of parental consortium even though the incident at issue took place before Gallimore was decided. Second, if Gallimore is retroactive, the question becomes whether Brandi Coleman’s loss of parental consortium claim is outside of the statute of limitations because it was not joined with Janette Coleman’s case, or whether such requirement does not apply in this case because it was not feasible. Third, in a case such as this where the intervening minor child has sued additional parties as defendants, an additional question presented is whether a derivative loss of parental consortium claim that is filed by an intervening child can be brought against additional defendants where the parent’s case in chief has only one defendant.”

We answer the first and third certified questions in the affirmative.

As to the second certified question, in Gallimore, supra, we approved of the reasoning of Justice Resnick in her dissent in High v. Howard (1992), 64 Ohio St.3d 82, 592 N.E.2d 818, where she wrote as follows:

“The only realistic concern expressed by the majority is the problematic area regarding multiple suits. Yet, the Sixth District Court of Appeals, in Farley [v. Progressive Cas. Ins. Co. (Feb. 21, 1992), Lucas App. No. L-90-323, unreported, 1992 WL 32111], supra, considered the question and reached a very coherent, sensible solution — one that I recommend this court adopt. That court framed and answered the issue as follows:

“‘ * * * R.C. 2305.16 tolls the statute of limitations for minors until they reach the age of majority. Thus, a minor would potentially have many years after the parent’s injury to bring a cause of action for loss of parental consortium. This would impede settlement of the injured parent’s claim and the spouse of the injured parent’s loss of consortium claim, since a tortfeasor, or his insurance company, would be most likely to resist settling a portion of the damages arising from one injury without settling all of them. Further, if a case were not settled, the injured parent and spouse could file their lawsuit within two years from the date of injury and a separate lawsuit could potentially be filed by each child many years later.

“ ‘This problem has been dealt with in other jurisdictions by requiring joinder of all minors’ consortium claims with the injured parent’s claim whenever feasible. * * * We believe that this is a sensible solution to the problem and hold that a child’s loss of parental consortium claim must be joined with the injured parent’s claim whenever feasible.’” (Emphasis added.) Id. at 94-95, 592 N.E.2d at 826-827.

We find nothing in the record before us to show that joinder of Brandi Coleman’s cause of action for loss of parental consortium to her mother’s cause of action is not just and feasible. Moreover, since the statute of limitations for Brandi’s independent cause of action for loss of parental consortium is majority plus four years (see R.C. 2305.09), there is no statute-of-limitations problem.

Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., Wright and Cook, JJ., dissent.