Weitl v. Moes

311 N.W.2d 259, 1981 Iowa Sup. LEXIS 1052
CourtSupreme Court of Iowa
DecidedOctober 21, 1981
Docket64843
StatusPublished
Cited by105 cases

This text of 311 N.W.2d 259 (Weitl v. Moes) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weitl v. Moes, 311 N.W.2d 259, 1981 Iowa Sup. LEXIS 1052 (iowa 1981).

Opinions

[261]*261ALLBEE, Justice.

Two important questions are presented by this appeal: (1) whether a child may maintain an action for loss of parental society and companionship when the parent is injured by the tortious act of a third party, and (2) whether a wrongful death action lies in behalf of a fetus which is stillborn due to a tortious injury to the mother. Trial court, in recognition of prior precedent, found that neither cause of action is cognizable in Iowa, and accordingly dismissed two counts of plaintiffs’ petition. We affirm the dismissal of the wrongful death claim, but reinstate the action for loss of parental society and companionship.

The allegations of plaintiffs’ petition, which we accept as true for purposes of this appeal, may be summarized as follows. Linda Weitl, a mother of three children, was in the late stages of a pregnancy when she was treated for bronchitis and hyperventilation at defendant hospital in November 1977. As a result of improper diagnosis and treatment by defendant doctors and hospital, Linda experienced respiratory and cardiac arrest. This incident produced severe, permanent brain damage and permanent blindness in Linda, and also caused her fetus to be stillborn. The fetus, which has been given the name Kelly, was very nearly full term and was capable of being born alive at the time of the incident which produced Linda’s injury.

In Count I of plaintiffs’ petition, Linda seeks damages for her own injuries and for loss of her services and support to her children and husband. Her husband, Gregory Weitl, asks for damages for loss of consortium and for Linda’s medical expenses in Count II. Defendants did not request dismissal of those counts.

Linda’s three minor children seek recovery in Count III for “loss of family relationship, loss of companionship and association, the care, attention, kindness, maternal guidance, comfort and solace of their mother’s society.” On behalf of the fetus’s purported estate, Gregory sues in Count IV for the wrongful death of the stillborn fetus. On motion of some defendants, trial court dismissed Counts III and IV. This appeal followed.

I. Appellate jurisdiction.

Before considering the merits of this appeal, we must address a jurisdictional issue. There being some question as to whether this appeal is from a final judgment, as required by Iowa R.App.P. 1(a), we asked the parties to submit briefs on that issue.

The parties argue opposing views as to the finality of trial court’s order dismissing two of four counts of the petition. See Iowa R.App.P. 1(a) and (b). But even assuming that the order was not a final judgment, we have determined that we may, and should, grant an appeal in this case pursuant to Iowa R.App.P. 1(c). That rule permits us to treat the papers upon which the appeal is taken as the equivalent of an application for interlocutory appeal under Iowa R.App.P. 2. Rule 2, in turn, allows us to entertain an appeal from an interlocutory ruling upon finding that the ruling “involves substantial rights and will materially affect the final decision and that a determination of its correctness before trial on the merits will better serve the interests of justice.” We find that those criteria are met in the present case.

II. Child’s action for loss of parental consortium.

A.

As stated at the outset, the- first important issue presented by this appeal is whether this court should recognize an independent right of action in a child to recover for the loss of society and companionship of a parent who has been tortiously injured by a third party. Before addressing the parties’ specific arguments, it will be helpful to examine the background and current status of this asserted cause of action in Iowa and elsewhere.

Until recently, a child’s cause of action for loss of parental consortium was unknown to the common law. See Hankins v. Derby, 211 N.W.2d 581, 582 (Iowa 1973). Within the last two years, however, two [262]*262jurisdictions have recognized such a cause of action. See Ferriter v. Daniel O’Connell’s Sons, Inc.,-Mass.-, 413 N.E.2d 690 (1980); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981). All other jurisdictions which have considered the issue have declined to so extend the common law. See generally Annot., 69 A.L.R.3d 528 (1976 & Supp.1981).

In Hankins v. Derby, this court similarly declined to recognize such an independent cause of action in the child. 211 N.W.2d at 585-86. While acknowledging the importance of a child’s interest in maintaining viable family relationships, and conceding that the asserted cause of action carried “great emotional appeal,” the Hankins majority declared that recognition of the child’s right of recovery was more properly an issue for legislative determination. 211 N.W.2d at 582, 585. In addition, the court stated that it was “inhibited” from recognizing such a cause of action by section 613.15, The Code 1971. 211 N.W.2d at 585. That statute, which remains unchanged in the current Code, provides:

Injury or death of spouse — measure of recovery. In any action for damages because of the wrongful or negligent injury or death of a woman, there shall be no disabilities or restrictions, and recovery may be had on account thereof in the same manner as in cases of damage because of the wrongful or negligent injury or death of a man. In addition she, or her administrator for her estate, may recover for physician’s services, nursing and hospital expense, and in the case of both women and men, such person, or the appropriate administrator, may recover the value of services and support as spouse or parent, or both, as the case may be, in such sum as the jury deems proper; provided, however, recovery for these elements of damage may not be had by the spouse and children, as such, of any person who, or whose administrator, is entitled to recover same.

The Hankins majority concluded that the quoted statutory provision “clearly permits recovery for all of the elements of damages asserted by plaintiff” 1 and that “[i]t limits proeedurally only the manner in which and the proper party by whom, the cause of action may be maintained. . . . ” 211 N.W.2d at 586. Thus, Hankins in fact determined that section 613.15 provided a statutory means of recovering damages for a child’s loss of parental consortium, but also held that, by operation of the statute, any claim for such damages on the child’s behalf must be brought by the injured parent or his estate.

B.

Plaintiffs advance two principal arguments in support of their contention that trial court erred in dismissing the claim of Linda’s children for loss of parental consortium. First, they urge that section 613.15, as interpreted in Hankins, be declared unconstitutional. Plaintiffs assert that the statute as interpreted violates the Equal Protection Clause of the fourteenth amendment by denying a child’s independent cause of action for parental consortium, while Iowa law otherwise permits a parent’s separate action for loss of a child’s consortium, see Iowa R.Civ.P. 8, as well as an independent action for loss of spousal consortium, see Fuller v. Buhrow, 292 N.W.2d 672, 674-76 (Iowa 1980); Acuff v. Schmit, 248 Iowa 272, 78 N.W.2d 480 (1956). Alternatively, plaintiffs ask this court to abandon the Hankins

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Bluebook (online)
311 N.W.2d 259, 1981 Iowa Sup. LEXIS 1052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weitl-v-moes-iowa-1981.