United States District Court, Southern District of Illinois
November 24, 1980
DOLORES NAVARRE, PLAINTIFF,
WISCONSIN BARGE LINE, INC., DEFENDANT.
The opinion of the court was delivered by: Beatty, District Judge.
This matter comes before the Court on the motion of
Defendant, Wisconsin Barge Line, Inc., pursuant to Rule 56 of
the Federal Rules of Civil Procedure, seeking an order
granting it summary judgment with respect to the asserted
cause of action of Plaintiff, Dolores Navarre, based on loss
On July 22, 1980, Plaintiff, a resident of the State of
Louisiana, filed an action against Defendant, a corporation,
with its principal place of business in St. Louis, Missouri,
seeking damages for loss of consortium from Ernie J. Navarre,
in the Circuit Court for the Twentieth Judicial Circuit, St.
Clair County, Illinois.
Thereafter, pursuant to 28 U.S.C. § 1441, Defendant removed
this action to the United States District Court for the
Southern District of Illinois. As there is diversity of
citizenship between the parties, jurisdiction is established
under the provisions of 28 U.S.C. § 1332.
Plaintiff premises her claim upon the recent holding of the
Supreme Court in American Export Lines, Inc. v. Alvez,
446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980), wherein an action
for loss of society, resulting from personal injury, was
recognized as arising under the General Maritime Law. Id. at
284, 100 S.Ct. at 1679, 64 L.Ed.2d at 293.
In Alvez, supra, the Court found it appropriate to extend the
reasoning of Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573,
94 S.Ct. 806, 39 L.Ed.2d 9; allowing recovery for loss of
society by a widow under the maritime wrongful death remedy
created by Moragne v. States Marine, 398 U.S. 375, 90 S.Ct.
1772, 26 L.Ed.2d 339 (1970); to a wife's loss of consortium
resulting from personal injuries sustained by her husband.
On February 26, 1977, Ernie J. Navarre suffered personal
injuries to his back while employed as a deckhand on board
Defendant Wisconsin Barge Line's motor vessel, the M/V MYRA
ECKSTEIN. Thereafter, a lawsuit was filed in the Twentieth
Judicial Circuit, St. Clair County, Illinois, on July 25,
1977, in which damages were sought under the provisions of
46 U.S.C. § 688 et seq., commonly called "The Jones Act", and the
General Maritime Law. This
action was resolved on May 31, 1979 and dismissed with
At the time of the accident, Ernie J. Navarre was not
married nor had he been prior thereto. Plaintiff's affidavit,
filed in opposition to the Motion for Summary Judgment,
establishes that she married Ernie J. Navarre in July of 1978
but that they had known one another for some time prior to the
The factual issue presented under Defendant's Motion for
Summary Judgment is whether Plaintiff can maintain an action
for loss of consortium when she was not married to Ernie J.
Navarre at the time of the February 26, 1977 accident.
In light of the recent decision of the Supreme Court in
Alvez, supra, this appears to be a case of first impression
under the General Maritime Law. Yet the principles employed in
the common law right of action for loss of consortium are
equally applicable here as to the relationship of the parties
which must exist at the time of the personal injury giving rise
to such right, e.g., Alvez, supra; Igneri v. Cie de Transports
Oceaniques, 323 F.2d 257 (2d Cir. 1963), cert. denied
376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969 (1964); Giglio v. Farrell
Lines, Inc., 424 F. Supp. 927 (S.D.N.Y. 1977); and Gilmore and
Black, The Law of Admiralty (1975) § 1-16.
The term "consortium" has been defined as a right which the
law recognizes, arising from the marital union, to have
performance by the spouse of all those duties and obligations,
in respect to the other, which were undertaken at the
commencement of the marriage relationship, e.g., Price v. Green
Transportation, 287 F.2d 363 (7th Cir. 1961); Albert v.
McGrath, 278 F.2d 16 (D.C. Cir. 1960); Arant v. Stover,
307 F. Supp. 144 (D.S.C. 1969); Alsop v. Eastern Air Lines, Inc.,
171 F. Supp. 180 (E.D.Va. 1959); Dini v. Naiditch, 20 Ill.2d 406,
170 N.E.2d 881 (1960); Wood v. Mobil Chemical Company,
50 Ill. App.3d 465, 8 Ill.Dec. 701, 365 N.E.2d 1087 (1977); Hoffman
v. Dautel, 192 Kan. 406, 388 P.2d 615 (Kan. 1964); Morey v.
Keller, 77 S.D. 49, 85 N.W.2d 57 (1957); Shreve v. Faris,
144 W. Va. 819, 111 S.E.2d 169 (1959).
The general rule, in cases of this nature, has always been
to require the existence of a lawful marriage at the time of
the accident which precipitated the loss, e.g., Domany v. Otis
Elevator Company, et al., 369 F.2d 604 (6th Cir. 1966) and
Wagner v. International Harvester Company, et al., 455 F. Supp. 168
(D.Minn. 1978). This same principle has equal applicability
to actions for loss of consortium based on the General Maritime
Yet Plaintiff argues that this Court should take into
consideration the fact that she knew Ernie Navarre before the
accident and that their relationship prior to February of
1977, with the subsequent marriage in July of 1978, creates a
question of fact as to whether she is entitled to damages for
loss of consortium. In support of her position, Plaintiff
relies solely on Sutherland v. Auch Inter-Borough Transit
Company, 366 F. Supp. 127 (E.D.Pa. 1973), wherein the Court
allowed a claim for loss of consortium even though the parties
were not married at the time of the accident.
The ruling in that case is clearly distinguishable from the
facts in the instant action. In Sutherland, supra, the parties
were engaged at the time of the personal injury and were
actually married less than a month thereafter.
Here the fact that Dolores and Ernie Navarre knew one
another at the time of the February, 1977 accident, and were
subsequently married eighteen months thereafter, does not
present the special circumstances which may allow a limited
modification of the general rule in unusual cases such as
This Court agrees with the general rule as stated in
Sartori v. Gradison Auto Bus Co., Inc., 42 Pa.D.& C.2d 781
(1967), wherein the Court of Common Pleas of Washington County,
Pennsylvania held, at 785: "(a) subsequent husband should not
acquire any right to sue for loss of consortium. He should not
be entitled to marry a cause of action".
Under the factual situation presented here, Plaintiff,
Dolores Navarre, does not have a right of action against
Wisconsin Barge Line for loss of consortium as she
was not married to Ernie J. Navarre before February 26, 1977.
This case does not require a determination as to whether
Plaintiff may maintain an action for loss of consortium, in
light of Alvez, supra, which arises out of a personal injury
accident occurring prior to the Supreme Court's decision
therein. This decision should not be read as determining this
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
the court finds that there is no genuine issue of material
fact, and that Wisconsin Barge Line, Inc. is entitled to
judgment as a matter of law. The Court further finds that
there is no just reason for delay of entry of final judgment
with respect to the claim of Dolores Navarre.
IT IS ORDERED that the motion of Wisconsin Barge Line, Inc.
for summary judgment be and is hereby granted and that this
cause is dismissed with prejudice at Plaintiff's costs.
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