Mass. Gay Marriage Has Property/Casualty Effects

Just one day after getting married under the state’s new same-sex marriage law, a Massachusetts lesbian couple filed a medical malpractice lawsuit asking that one of the women receive damages because doctors failed to detect breast cancer in her spouse.

The lawsuit claims “loss of consortium” for Cindy Kalish because of the advanced breast cancer in her new wife, Michelle Charron.

Loss of consortium is a legal claim long available to spouses, but only newly available to gay and lesbian couples since the state began allowing same-sex marriage last month.

While much of the attention surrounding insurance and gay marriage has focused on life and health contracts, this loss of consortium lawsuit provides a glimpse into the kinds of property casualty issues involving gay unions that Massachusetts and perhaps other states can expect.

“I think there will be tons and tons of incidental issues, and this apparently is the first one,” said Boston lawyer Steven Schreckinger.

Among the possible causes of action, in addition to loss of consortium, are those for wrongful death, emotional distress or dramshop. There are also prohibitions against discrimination based upon marital status.

To date, the Massachusetts Division of Insurance has not issued any advisory or bulletin on the effect of gay marriage on insureds or insurers. Chris Goetcheus, DOI spokesman, said that insurers would be expected to follow the “post-Goodridge” law. Goodridge was one of the successful plaintiffs in the court case that established the rights of gays to marry in the state.

Massachusetts insurance experts may be watching what happens in workers’ compensation. Previously barred gay and lesbian families will now be entitled to benefits. Also, in the event of the workplace death of a spouse of a same-sex couple, the surviving gay spouse while unmarried will be entitled to two-thirds of the deceased’s employee’s working wage, as is the case with heterosexual spouses.

Paul Meagher, president of the Massachusetts Workers’ Compensation Rating Bureau in Boston, said his insurer organization was just beginning to look at what impact gay marriages would have. He did note that the state’s workers’ comp laws are “pretty tight over loss of consortium” and downplayed that as an area of claims concern.

In the realm of auto insurance, insurers now offering a 5 percent multiple cars discount for married couples owning two or more vehicles will be required to extend that discount to gay couples.

One little known legal protection afforded married couples is that the surviving spouse of a deceased registered professional—including an insurance agent or broker—is entitled to carry on the business under the supervision of another professional. Gay spouses of insurance agents in Massachusetts now have that benefit as well.

In the area of employee benefits, Massachusetts is expected to treat same sex spouses equally under state tax laws, allowing employers to offer health and other benefits on a pretax basis. Now that marriage is available to same-sex couples in one state, some observers think employers elsewhere may face more pressure from workers to match the benefits available in Massachusetts.

According to stateline.org, a news service that tracks state issues, some legal scholars predict a flurry of lawsuits targeting the federal Defense of Marriage Act, which bars federal recognition of gay marriages and sanctions laws in 39 states banning gay marriage.

According to stateline.org, legal challenges most likely will be waged by same-sex couples who live in Massachusetts now, marry, and then move away or travel across state lines. Possible scenarios triggering legal action include: an employer’s refusal to extend health care benefits to the spouse of a gay employee; a gay couple prohibited from filing a joint income tax return; or a married couple in a car accident in which one is seriously injured or killed and the other is denied hospital visitation privileges or the ability to file a wrongful death lawsuit.

Associated Press, stateline.org and Andrew G. Simpson Jr. contributed to this report which originally appeared in the Insurance Journal East print edition for June 7, 2004.