                                                                     FILED
                                                             COURT OF APPEALS OW I
                                                              STATE OF WASHINGTON

                                                         .20110CT 30 AN 9:01




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JESSICA VANCE and JUSTIN VANCE,)             No. 76092-1-1
husband and wife, and their marital      )
community,                               )   DIVISION ONE
                                         )
                  Appellants,            )
                                         )
                    v.                   )
                                         )
FARMERS INSURANCE COMPANY, )
                                         )
                  Respondent Intervenor,)
                                         )
MEHMET SOLAK and JANE DOE                )
SOLAK, husband and wife, and their )
marital community, if any; and           )
GABRIELLE MCMAUGH and JOHN               )   UNPUBLISHED OPINION
DOE   MCMAUGH,      husband  and  wife,  )
and their marital community, if any; and )
AMANDA B. YATES and JOHN DOE )
YATES, husband and wife, and their       )
marital community, if any; and JUSTIN )
VANCE, a married person; and             )
MAHLET A. GETACHEW and JOHN              )
DOE GETACHEW, husband and wife, )
and their marital community, if any; and )
DESTA WORKNEH and JOHN DOE )
WORKNEH, husband and wife, and           )
their marital community, if any; and     )
JASON SMITH and JANE DOE SMITH,)
husband and wife, and their marital
community, if any,

                Defendants.                  FILED: October 30, 2017
No. 76092-1-1/2

       SCHINDLER, J. — As a general rule, a spouse cannot bring a claim for loss

of consortium when injury to the spouse that causes the loss occurs before

marriage. Justin Vance appeals summary judgment dismissal of his claim for

loss of consortium. Justin cites an out-of-state case to argue that because he

and his spouse Jessica Vance were in a committed intimate relationship before

the marriage, he should be allowed to bring a claim for loss of consortium. We

adhere to the Washington Supreme Court decision in Green v. A.P.C., 136

Wn.2d 87, 960 P.2d 912(1998), and affirm summary judgment dismissal of his

loss of consortium claim.

       Justin Vance and Jessica King began dating in January 2008.

Approximately six months later, they got engaged and were living together.

       On November 6, 2010, Jessica was driving a rental car when a van rear-

ended the car. Jessica got out of the car. The driver, Mehmet Solak, got out of

the van. As Solak was giving his driver's license information to Jessica, the

driver of another car, Gabrielle McMaugh, collided with Solak's van, injuring

Jessica and Solak.

       After the November 2010 car accident, Jessica and Justin decided to get

married in Mexico on May 27, 2011.

       On May 7, 2011, Justin was driving his BMW southbound on Aurora

Avenue North. Jessica was in the front passenger seat. As Justin turned left into

a driveway, a car hit the BMW on the passenger side. Mahlet Getachew was the

driver of the car.




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No. 76092-1-1/3

       Jessica said the collision" Ireaggravated'" her right knee and bruised her

arm. Justin and Jessica cancelled the May wedding and the trip to Mexico. They

rescheduled the wedding for May 7, 2012 in Saint Lucia.

       On November 21, 2011, Jessica was driving on Interstate 405. Jessica

"T-boned" a truck with her car. The truck driver was Jason Smith.

       Jessica and Justin got married in Saint Lucia on May 7, 2012.

       On November 5, 2013, Justin and Jessica as husband and wife and on

behalf of the marital community filed a complaint for damages against Solak and

McMaugh for the car accident on November 6, 2010; Justin Vance and

Getachew for the car accident on May 7, 2011; and Smith for the car accident on

November 21, 2011.1 The complaint alleged the negligence of the defendants

caused "severe" injuries to Jessica. Jessica sought medical expenses, lost

earnings, property damage, and general damages. The defendants denied the

allegations and asserted affirmative defenses.

       In 2010 and 2011, Jessica was insured by Farmers Insurance Company

(Farmers). The insurance policy included underinsured motorist coverage. On

February 21, 2014, Farmers filed a motion to intervene in the lawsuit. The court

granted the motion.

       Justin filed a motion for summary judgment on loss of consortium. Justin

argued the undisputed facts showed he suffered loss of consortium as a result of

the car accidents. In opposition, the defendants and Farmers pointed out the

complaint did not allege a claim for loss of consortium and Justin was not married


      1 Justin and Jessica also sued the registered owner of the car McMaugh was driving,
Amanda Yates; and the registered owner of the car Getachew was driving, Workneh Desta.


                                             3
No. 76092-1-1/4

to Jessica at the time of the car accidents. The court denied Justin's motion for

summary judgment.

       Justin filed a motion to file an amended complaint to add loss of

consortium and negligent infliction of emotional distress. On February 10, 2015,

the court entered an order granting the motion to file an amended complaint

without prejudice to the defense filing motions "on legal sufficiency, relation back

and the statute of limitations."

       In answer to the amended complaint, Farmers asserted Justin cannot

"state a claim upon which relief can be granted" because Justin and Jessica were

not married when the car accidents occurred in 2010 and 2011.

       Plaintiff was not married to Jessica at the time Jessica Vance was
       involved in the accidents which form the bases for this matter.
       There is no cognizable legal claim in law or fact for loss of
       consortium and/or other damages claimed by Plaintiff Justin Vance.

       Following a mediation on March 17, 2015, Jessica settled her claims

against the defendants and Farmers.

       On May 21, Farmers filed a motion for summary judgment dismissal of

Justin's claim for loss of consortium and negligent infliction of emotional distress.

Citing Green v. A.P.C., 136 Wn.2d 87, 960 P.2d 912(1998), Farmers argued

because Justin was not married to Jessica at the time of the car accidents, as a

matter of law, he did not have a claim for loss of consortium.

       Mr. Vance's claims are based solely upon the injuries plaintiff
       Jessica Vance allegedly experienced as a result of the three
       separate motor vehicle accidents at issue in this lawsuit; Mr. Vance
       is not claiming that he suffered any personal injuries. However, Mr.
       Vance was not married to Jessica Vance at the time of any of the
       three accidents. As a result, he has no cognizable claims for loss



                                          4
No. 76092-1-1/5

        of consortium, and thus his claims for loss of consortium should be
        dismissed with prejudice as a matter of law.

        Farmers argued Justin could not establish negligent infliction of emotional

distress because the undisputed evidence showed he was not present at the first

car accident in 2010 or the third accident in November 2011, and he presented

no evidence of "objective symptomology relating to the second accident" in May

2011.

        Justin filed a cross motion for summary judgment. Justin conceded that in

Washington, unmarried persons are not entitled to loss of consortium. Justin

argued the court should follow the decision of the New Mexico Supreme Court,

Lozoya v. Sanchez, 133 N.M. 579,66 P.3d 948(2003), abrogated on other

grounds by Heath v. La Mariana Apartments, 143 N.M. 657, 180 P.3d 664

(2008), that recognizes loss of consortium for a partner in a committed intimate

relationship (CIR).

        In response, Farmers asserted the New Mexico Supreme Court decision

in Lozova "has not been adopted by any other jurisdiction." Farmers also

asserted the evidence "does not warrant a finding that a 'committed intimate

relationship' existed as a matter of law." In the alternative, Farmers argued there

were material issues of fact on whether Justin and Jessica could establish a CIR.

        At the hearing on the cross motions for summary judgment, Justin told the

court he was not "necessarily seeking... summary judgment on whether or not

a committed intimate relationship existed, but rather that we have the right to

present that evidence at trial should you rule in our favor today." The court




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No. 76092-1-1/6

denied Justin's motion for summary judgment. The court entered an order

granting summary judgment dismissal of "all claims by plaintiff Justin Vance."

       Jessica and Justin filed a notice of appeal to the Washington Supreme

Court of the "Order Denying Plaintiff Justin Vance's Second Motion for Summary

Judgment RE: Loss of Consortium & Related Claims" and the "Order Granting

Intervenor Farmers Insurance Company's Motion for Summary Judgment to

Dismiss All Claims of Plaintiff Justin Vance." The Supreme Court transferred the

appeal to this court.

       Jessica and Justin cite the New Mexico Supreme Court decision in Lozova

to argue unmarried persons in a CIR should have the right to assert a loss of

consortium claim. Farmers contends the Washington Supreme Court decision in

Green controls.

       We review a trial court's decision on summary judgment de novo. Michak

v. Transnation Title Ins. Co., 148 Wn.2d 788, 794,64 P.3d 22(2003). Summary

judgment is appropriate if, viewing the facts and reasonable inferences in the

light most favorable to the nonmoving party, no genuine issues of material fact

exist and the movant is entitled to judgment as a matter of law. Michak, 148

Wn.2d at 794-95.

       Loss of consortium is a claim for loss of society, affection, assistance, and

conjugal fellowship and loss or impairment of sexual relations in the marital

relationship. Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 773, 733 P.2d

530(1987); Ueland v. Pengo Hydra-Pull Corp., 103 Wn.2d 131, 132 n.1, 691

P.2d 190 (1984). A loss of consortium claim is an independent and separate



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No. 76092-1-1/7

claim, not a derivative claim. Oltman v. Holland Am. Line USA, Inc., 163 Wn.2d

236, 250, 178 P.3d 981 (2008).

       In Christie v. Maxwell, 40 Wn. App. 40, 47-48, 696 P.2d 1256 (1985), we

held the spouse in a marital relationship has the right to bring a loss of

consortium claim, but "there would be no injury to [the wife's] consortium rights

without the accompanying physical injury to her spouse, and the existence of the

marital relationship."

       In Green v. American Pharmaceutical Co., 86 Wn. App. 63, 68, 935 P.2d

652(1997), we held the general rule in Washington and the majority of courts in

other states is "that a spouse can bring a loss of consortium action only when a

marriage exists at the time of the tortious conduct and the resultant injury."

(Citing Christie, 40 Wn. App. at 47-48; Stager v. Schneider, 494 A.2d 1307(D.C.

1985); Sawyer v. Bailey, 413 A.2d 165(Me. 1980); Tremblay v. Carter, 390

So.2d 816 (Fla. Dist. Ct. App. 1980)). But we concluded the general rule did not

bar a claim for loss of consortium for an unknown latent toxic tort that the spouse

could not have discovered before marriage. Green, 86 Wn. App. at 68. The

Washington Supreme Court affirmed. Green, 136 Wn.2d at 103.

       The Supreme Court agreed the rule in Washington and the majority of

other states is that "a loss of consortium claim does not lie when the injury to the

spouse that caused the loss of consortium occurred prior to the marriage."




                                          7
No. 76092-1-1/8

Green, 136 Wn.2d at 101.2 A person should not be permitted to "marry a cause

of action" and "assumes... the risk of deprivation of consortium arising from any

prior injury." Green, 136 Wn.2d at 101. The court in Green adopted a narrow

exception to the rule where an unknown latent toxic injury to the affected spouse

was "latent and unknown" at the time of the marriage. Green, 136 Wn.2d at 101-

02. The court held,"Moss of consortium damages should be available for a

premarital injury if the injured spouse either does not know or cannot know of the

injury." Green, 136 Wn.2d at 102.3

        Justin does not contend the exception in Green applies. Justin cites

Lozova to argue a person in a CIR should be allowed to assert a loss of

consortium claim.

        In Lozova, the New Mexico Supreme Court held that "as a matter of first

impression under New Mexico law. . . a claim for loss of consortium is not limited

to married partners." Lozova, 133 N.M. at 582. The New Mexico Supreme Court

recognized the decision represented a minority view—"we note that no other



         2 See also LeFiell Mfg. Co. v. Superior Court of Los Angeles County, 55 Cal. 4th 275,
284-85, 282 P.3d 1242(2012)("Such a claim at common law" includes"'a valid and lawful
marriage between the plaintiff and the person injured at the time of the injury.' ")(quoting Hahn v.
Mirda, 147 Cal. App. 4th 740, 746 n.2, 54 Cal. Rptr. 3d 527(2007)); Holmes v. Maimonides Med.
Ctr., 95 A.D.3d 831, 831-32, 943 N.Y.S.2d 573(N.Y. App. Div. 2012)(A"'cause of action for loss
of consortium does not lie if the alleged tortious conduct and resultant injuries occurred prior to
the marriage.'")(quoting Anderson v. Eli Lilly Co., 79 N.Y.2d 797, 798, 588 N.E.2d 66(1991));
Feliciano v. Rosemar Silver Co., 401 Mass. 141, 142, 514 N.E.2d 1095(1987)("[T]hat value [of
marriage] would be subverted by our recognition of a right to recover for loss of consortium by a
person who has not accepted the correlative responsibilities'of marriage."); Gillespie-Linton v.
Miles, 58 Md. App. 484, 495, 473 A.2d 947(Md. Ct. Spec. App. 1984)("[W]e hold that only injury
to a marital relationship which exists at the time of the injury can support an action for loss of
consortium.")(emphasis in original).
         3 We also note the legislature has created a right for a child, parent, or spouse to bring an
action-for wrongful death where loss of consortium is an element of the recovery, RCW 4.20.020,
and a right for parents to recover for "loss of love and companionship" of their child, RCW
4.24.010, but has not allowed partners in a CIR to recover for loss of consortium.


                                                  8
No. 76092-1-1/9

State in the union currently allows unmarried cohabitants to recover for loss of

consortium." Lozova, 133 N.M. at 585.

      The New Mexico court adopted an eight-factor test for the jury to

determine "whether an intimate familial relationship exists for loss of consortium

purposes" and is "significant enough to recover." Lozoya, 133 N.M. at 588.

      "That standard must take into account the duration of the
      relationship, the degree of mutual dependence, the extent of
      common contributions to a life together, the extent and quality of
      shared experience, and ... whether the plaintiff and the injured
      person were members of the same household, their emotional
      reliance on each other, the particulars of their day to day
      relationship, and the manner in which they related to each other in
      attending to life's mundane requirements."

Lozova, 133 N.M. at 5884 (quoting Dunphy v. Gregor, 136 N.J. 99, 112, 642 A.2d

372(1994)).

       Unlike in the New Mexico case, the CIR doctrine in Washington is

equitable in nature. In re Marriage of Pennington, 142 Wn.2d 592,602, 14 P.3d

764(2000). The equitable CIR doctrine in Washington evolved to protect

unmarried parties who acquire property during their relationship. Pennington,

142 Wn.2d at 602. In determining the existence of a CIR, the court considers

several factors that are neither exclusive nor hypertechnical. Pennington, 142

Wn.2d at 601-02. No one factor is more important than another and the court

examines the particular circumstances of each case to determine if a CIR exists.

Pennington, 142 Wn.2d at 605.

       We adhere to the general rule in Washington that a spouse does not have

a claim for loss of consortium when the injury to the spouse that causes the loss


       4 Alteration   in original.


                                         9
No. 76092-1-1/10

occurs before marriage, and affirm summary judgment dismissal of Justin's claim

for loss of consortium.




                                              cc9.,i\i-eQ9,_,
WE CONCUR:




                                              1- 5e(ye.)R)a        •••••




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