Metropolitan News-Enterprise


Thursday, March 31, 2005


Page 1


C.A. Upholds Right of ‘Life Partner’ to Bring Suit for Wrongful Death, Says 2005 Law Is Retroactive


By a MetNews Staff Writer


A retroactive feature of California’s domestic partnership law allows a local woman to sue Sherman Oaks Hospital and a physician affiliated with it for wrongful death even though the couple never registered as domestic partners under California law, this district’s Court of Appeal ruled yesterday.

Div. One, with Presiding Justice Vaino Spencer authoring the opinion, reinstated Connie Armijo’s suit against the hospital and Dr. Jamie Miles for alleged malpractice the plaintiff says resulted in the death of Dana Schwartz.

Armijo alleged in her complaint that she and Schwartz, who died in 2001, met in 1987 and decided six months later that they would commit to each other as “life partners and ‘spouses.’” They shared living expenses and bought a house together, where they resided until Schwartz’s death, but did not register as domestic partners under the 1999 legislation permitting such registration.

That law gave domestic partners limited rights with respect to health care and public employee benefits only. Legislation adopted in 2001, effective Jan. 1, 2002, gave domestic partners additional rights, including the right to sue for wrongful death, and legislation operative at the beginning of this year gave domestic partners nearly all of the rights of married persons.

A follow-up provision, enacted last year by AB 2580 while Armijo’s appeal was pending, includes a provision allowing persons who were not registered as domestic partners to sue for wrongful death if the death occurred prior to Jan. 1, 2002 and the plaintiff can prove that the couple met the statutory requirements for registration.

To register, the partners must be competent adults, share a common residence in the state, and not be married or in a domestic partnership with anyone else, and must not be related by blood in a way that would prohibit them from marrying.  They must be of the same sex unless one of them is over the age of 62 and receiving Social Security benefits.

Spencer, writing for the Court of Appeal, said Judge Richard Wolfe was correct when he dismissed the suit on the ground that the 2002 version of the law did not permit persons who had not registered from suing for wrongful death.

But the presiding justice also concluded that Armijo’s suit must be reinstated because the trial court’s ruling had not become final by the time AB 2580 became law and the Legislature clearly intended for the provision to apply retroactively.

That retroactivity is not unconstitutional, Spencer said, nor is it barred by Proposition 22, which precludes recognition of same-sex marriages in California. The defendants’ argument to the contrary, Spencer said, “is based on the faulty premise that the right to sue for wrongful death is an exclusive benefit of marriage.”

The case is Armijo v. Miles, B166050.


Copyright 2005, Metropolitan News Company