Case Could Extend Similar Rights to Homosexuals : Permission to Sue Over Deaths of Lovers Urged

The state Supreme Court was urged Wednesday to give live-in partners the same right to sue over a partner’s death as married people in a case that could extend similar rights to homosexual lovers and possibly even close friends and business partners.

Led by Chief Justice Rose Elizabeth Bird, some justices seemed willing to allow suits by live-in lovers--which would be a major step beyond rulings like the so-called Marvin case that held that unmarried partners who break up can collect palimony in some instances.

But as the court held unusually lively arguments in a courtroom packed with lawyers and observers, Justice Malcolm Lucas, for one, said a broad ruling could place courts in a “swamp.”

The generally conservative justice said, however, that an “even stronger case could made” that homosexuals should be able to sue over a partner’s death. Noting the state does not recognize marriages among gays, Lucas said, “Homosexuals, although they may wish to marry, are precluded from doing so.”

New Issues Raised

The case Wednesday raised issues that have hardly been touched by courts in California and across the nation. It stems from a suit by Richard C. Elden, who was a passenger in a car driven by his fiancee, with whom he had been living. The woman was thrown from the car in a 1982 accident in Pasadena and died several hours later.

Elden, an artist who now lives in Minneapolis, sued Richard Louis Sheldon, who drove the other car, for emotional distress resulting from the death, and the loss of his fiancee’s “consortium,” a term that refers to the love and support provided by a mate.

A Superior Court judge threw out the suit. A Court of Appeal, affirming that ruling, held that there was no right to sue. That decision affirmed longstanding law that an unmarried person has no right to sue over the death of a partner--no matter how long the couple lived together, and regardless of whether they had a close, stable relationship.

Lawyers who argued against allowing such suits made several references to the state’s “policy” of promoting marriage. State support of marriage is reflected, for example, by a statute that says only married people can collect for their mates’ wrongful death.

Marriage is the “very backbone, the very fabric of society,” said Patrick A. Mesisca, one of the defendant’s lawyers.

Two Justices Disagree

But two justices disputed Mesisca’s argument that the public would believe the court was voicing disapproval of marriage if the justices allow such suits.

Justice Allen Broussard scoffed at the suggestion, saying, “It’s a matter of whether the court is going to continue to turn its back on significant numbers of people in very meaningful relationships.”

Bird noted that under Mesisca’s reasoning, a couple that had been married for an hour would have greater legal rights than two people who lived together for 25 years.

“What public policy is advanced by that?” the chief justice asked.

Bird, like other justices, did appear to see problems with allowing such suits: How, for example, could courts define a “stable relationship” among unmarried people?

“What does that mean?” Bird asked. “Do you have to live together one month, two years, have a joint bank account?”

“Leave it to the jury to decide the issue,” said Michael L. Robins, who represented Elden.

But urging the justices to consider “the adverse economic impact” of a broad ruling, Peter J. Godfrey, also representing the defendant, said that allowing unmarried couples the right to sue could open the way for suits by a best friend or close business partner of someone who died because of another person’s negligence.

Troubling Prospect

Some justices seemed troubled by that thought.

“Aren’t you inviting us into a swamp?” Lucas asked the plaintiff’s lawyer.

Lucas said that if Robins’ view were adopted, students of Christa McAuliffe might be able to sue if they watched the Challenger explode on television last week and if the space shuttle disaster resulted from negligence.

“You have to draw the line somewhere,” Justice Edward A. Panelli said, referring to the policy favoring marriage.

“It’s not the policy of the court we’re dealing with. It’s the policy of the public,” Robins said, pointing out that cohabitation is increasingly accepted, with about 2 million couples nationwide living together.