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There is no state of facts which reasonably may be conceived to justify a general rule denying a woman an action for loss of consortium, while recognizing the right in a man.
The trial court awarded the wife a recovery for loss of consortium based on her husband's injuries. The action was commenced in 1976 upon a cause arising in 1973. It was not until 1977 that the legislature expressly authorized the bringing of an action for loss of consortium by either spouse with the enactment of Vt. Stat. Ann. tit. 12, § 5431.
May a woman, as a matter of law, recover for loss of consortium based on her husband's injuries?
The court found that the wife's right to recovery in this case was determined by the common law. Vermont case law had declined to recognize a woman's right of action for loss of consortium; however, the cases had not foreclosed such recognition. The court stated that recent United States Supreme Court decisions had required scrutiny of gender-based classification to determine whether the classification served "important government objectives" and whether the classification was "substantially related" to the attainment of those objectives. The court concluded that it could not find any nonarbitrary distinction between the interests of the man and woman in their mutual society. There was no state of facts that could reasonably be conceived to justify a general rule denying a woman an action for loss of consortium, while recognizing the right in a man.