Bashaway v. Cheney Bros., Inc.
987 So.2d 93 (Fla. 1st DCA 2008)

Facts:

  • Judith Bashaway was in a longterm relationship with her partner, Melinda Garrison.
  • Melinda suffered injuries in an automobile accident and brought a civil action against appellees, Cheney Brothers, Inc.
  • Count III included a claim made by Judith for loss of consortium.

History:
The trial court dismissed the claim.

Issue:
Whether a same-sex relationship can become the equivalent of a valid marriage for purposes of a consortium claim.

Holding:
No. Affirmed.

Reasoning:

  • On appeal it was argued that:
    • (1) A claim for loss of consortium under the common law in Florida should turn on the seriousness of the relationship between the partners and not whether the partners are technically married.
      • However, the court held that loss of consortium is a “derivative right,” meaning it derives from a legal relationship.
      • Moreover, no Florida case has held, or even suggested, otherwise.
      • Thus, since gay couples can’t marry, there’s no claim for loss of consortium.
    • (2) Alternatively, it was argued that Florida common law should recognize an exception to the marriage requirement for same-sex partners because they are prohibited in Florida from becoming legally married.
      • The court held that they were without authority to carve out an exception because Florida’s clear public policy is that legal relationships are unattainable for same-sex couples.
      • “The emotional injury, no matter how deeply felt, however, does not give rise to the claim; instead, the existence of the legal relationship fosters the claim. ‘There has to be a line drawn somewhere, and absent legislation it would be improvident for this court to extend it.’”

Rule: A claim for loss of consortium is a derivative right and, as such, is inapplicable to same-sex couples.