Appeals Court Upholds No Consortium Claim for Same-Sex Partners

Diego Madrigal

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The First District Court of Appeals recently upheld a lower court's ruling that same-sex partners could not maintain a consortium claim because under Florida law, a consortium claim is based on legal status that can only be achieved by marriage.  Florida Statutes Section 741.212 prohibits marriage of homosexual couples.   In Bashaway v. Cheney Bros., Inc., a woman brought a consortium claim for injuries sustained by her same-sex partner.  Cheney Brothers moved to have that claim dismissed and the trial court granted it.  The woman then appealed to the appellate court.
    In the appeal, the woman argued two main points: 1) that the basis of a consortium claim should be based on how serious a relationship is, and 2) that there should be an exception for homosexual couples because they could not meet the existing legal requirements to bring such a claim.  
    In its rejection of the arguments, the court said that although courts have historically enlarged the right to a consortium claim, all those extensions applied to people who had a familial relationship.  Here there was not one.  Also, they pointed out that there are many close relationships, such as siblings, that also could not bring a consortium claim.  It also said that since a consortium claim derives from an injury to a 3d person with whom there exists a LEGAL relationship, there could not be consortium in this case.  The legislature had clearly stated through 741.212 that they were not extending legal relationships to gay couples.  The court stated “we cannot see how a court in Florida could ignore the clear import of the Florida legislation.”  
    It will be interesting to see if this case is appealed to the Florida Supreme Court.  If it is appealed then that Court must decide whether they want to circumvent the clear intention of the legislature.  If they decide to do so, they would be labeled as “activist judges” and perhaps be used to get voters out for the constitutional amendment for the protection of traditional definition of families that is being placed on the ballot in November.    How this situation plays out is yet to be seen.  What are your opinions?