Same Sex Couples and Personal Injury in PA

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By Lisa Vari on G+

Same-sex marriage reform, in the wake of federal same-sex marriage recognition and the decision of a Montgomery County official to being issuing marriage licenses to same-sex couples, appears to be moving forward with rapidity even in Pennsylvania, where it remains statutorily banned. Same sex marriage advocates, however recently learned that the process is not as smooth as it would have appeared a couple of weeks ago.

A Philadelphia Court of Common Pleas judge threw out a lawsuit raising claims for loss of consortium when a Temple University Health System didn’t remove a metal object after surgery. Jesseca Wolf sued for medical malpractice, and her partner Tammy Wolf filed for loss of consortium. The Judge dismissed the loss of consortium claim through a one page Order, stating that there can be no claim for loss of consortium where the two parties are not married. Because there is no same-sex marriage under Pennsylvania law, the couple, who had been together for over 20 years and held themselves out as married, are not legally married under Pennsylvania law and therefore Tammy is not entitled to a claim for loss of consortium.

Tammy and Jesseca Wolf argued in that denying them the ability to bring a claim for loss of consortium was unconstitutional in light of the Supreme Court ruling in U.S. v. Windsorstriking down DOMA, and that they should be entitled to take advantage of the growing national recognition of same-sex marriage rights. The attorneys for Temple, on the other hand, argued that it was not a question of same-sex vs. opposite-sex, but a question of married v. non-married. Under Pennsylvania law, according to precedent loss of consortium claims were only allowed to proceed when couples were legally married. A fiancé was denied the ability to make a claim when his intended (opposite sex) bride was injured on the morning of the day of their wedding.

The Wolf’s, although they conceded that the precedent in Pennsylvania was against them, argued that the national trend was in favor of expanding the ability to bring civil claims to same-sex couples who held themselves out as married.

At the moment, as state law stands in Pennsylvania, it is not likely that the Wolf’s will win their appeal to be able to bring a loss of consortium claim, unless their civil rights claims make it to the Supreme Court. However, if the ACLU lawsuit that was filed to strike down the Pennsylvania Defense of Marriage Act succeeds up to the state Supreme Court, then the pair would be able to be legally married, and then they could succeed in a subsequent lawsuit as a married couple.

Our team of Pittsburgh family law attorneys is actively following all developments with same sex marriage in Pennsylvania. Contact us today to discuss your case, whether you are in a same-sex or opposite sex relationship!