NJ Judge Allows Loss of Consort Claim for Domestic Partners

May 12, 2004 (PLANSPONSOR.com) - Lawyers representing four New Jersey workers suing their employers can amend their complaint to include a loss of consortium claim by one of the plaintiffs' domestic partners.

>The decision by Essex County, New Jersey Superior Court Judge James Rothschild Jr. opens the door for a legal test on loss of companionship – consortium – claims for domestic partners. Previously, consortium claims have been reserved for spouses only, according to a New Jersey Law Journal report.

>In the case, Buell v. Clara Maass Medical Center , four emergency medical technicians filed suit against Clara Maass Medical Center in Belleville, a subsidiary of St. Barnabas Health Care System for a variety of issues, including matters of whistleblower protection, hostile work environment and contractual claims.

>One plaintiff, Linda Henry, suffered a heart attack last September that she attributes to stress caused by her employer, the suit says. In April, her domestic partner, Judith Peterson, amended the original complaint to state she “lost the consort, companionship, society, affection, services, and support of her partner.”

>Rothschild allowed the amended complaint despite objections that such a move was in conflict with New Jersey legal precedents against the notion of loss-of-consortium damages for anyone but spouses. In particular, precedent does not allow loss of consortium claims under the statutes the defendants allegedly violated, the state Law Against Discrimination and the Conscientious Employee Protection Act.

>However, legal analysts dispute this contention and say the issue is ripe due to emerging redefinitions of familial relationships, such as the newly adopted Domestic Partnership Act (See  McGreevey Pens Garden State Same-Sex Partner Bill ). The Act, enacted by the New Jersey legislature in January, recognizes same-sex unions and grants such partners rights and benefits, such as allowing domestic partners to visit each other in the hospital, make critical health-care decisions, receive survivor benefits and receive state income deductions and inheritance-tax exemptions.

>Yet, not included in the rights granted in the Act is the right to recovery for loss of consortium.

>Plaintiffs in the New Jersey case are not completely alone. Last June, the New Mexico Supreme Court, in Lozoya v. Sanchez , ruled loss of consortium claims are not limited to married partners, but may be asserted by unmarried cohabitants who can prove an intimate familial relationship with the victim.