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ALBERT NORMAN et al., Plaintiffs
vs.
GENERAL MOTORS CORPORATION, Defendants.
 
Case:
No. CV-R-84-453-ECR
 
Location:
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA
 
Date:
February 18, 1986
 
Attorneys:
Lawrence J. Semenza Reno Nevada for Plaintiff.
Robert Story Reno Nevada for Defendant.
 
Court:
Edward C. Reed Jr.
 
Author:
The Hon. Justice Reed JR.
 

Defendant General Motors (GM) moves this Court for partial summary judgment arguing that essential elements are missing from two of plaintiffs' claims for relief. GM argues (1) that Albert Norman's claim for defamation must fail because no publication occurred and (2) that Caroline Norman's claim for loss of consortium must fail because she was not married to Albert Norman. In opposition Albert Norman asserts that sufficient facts exist to survive a summary judgment on whether GM did in fact publish the alleged defamatory material. Caroline Norman argues that a valid marriage is not an essential element for a claim of loss of consortium.

Summary judgment is only appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Ybarra v. Reno Thunderbird Mobile Home Village 723 F.2d 675 677 (9th Cir. 1984). The evidence must be viewed in the light most favorable to the non-moving party. Franklin v. Murphy 745 F.2d 1221 1235 (9th Cir. 1984). Further in deciding this diversity case this Court is bound to apply the law of the Nevada Supreme Court. Erie R. Co. v. Tompkins 304 U.S. 64 82 L. Ed. 1188 58 S. Ct. 817 (1938).

GM first argues that although Norman's fifth claim for relief alleges that GM defamed him discovery has revealed that Norman cannot prove publication an essential element to any claim of defamation. GM asserts that Norman's interrogatory answers reveal a reliance on statements made by GM employees Mike Hutton and James Patterson to Albert Norman. GM further asserts that at Albert Norman's deposition Norman testified that only GM personnel were present when the alleged defamatory accusation of his "involvement with narcotics" (the alleged defamatory statement) was made and that employees of a corporation cannot "publish" to each other. In his opposition to the motion for summary judgment Norman argues that he is not merely relying on the interview with GM personnel to support his defamation claim but also relies on the distribution of Security Officer daily report notes and memos to Gonyo of the police department and the Consolidated Narcotic Unit (CNU). Norman further asserts that distribution to non-interested GM employees supports his assertion of publication.

To be actionable there must be a publication of the defamatory material. GM is correct that publication cannot occur when the communication is between officers agents and employees of a corporation. See Jones v. Golden Spike Corp. 97 Nev. 24 27 623 P.2d 970 971 (1981). Thus our inquiry would possibly have ended here if this were the only publication asserted. However Norman also points to the distribution of alleged defamatory material to the CNU.

Mike Hutton admitted at his deposition that GM discussed Norman with the CNU. GM argues however that because the CNU requested the information it cannot form the basis of any defamation claim. However Norman alleges in his complaint that GM's information initiated any investigation by the CNU. Although GM denies this the allegations of Norman's complaint absent competent contradicting evidence must be accepted as true for the purposes of this motion. International Union of Bricklayers v. Martin Jaska Inc. 752 F.2d 1401 1405 (9th Cir. 1985). Thus the release of information to the CNU may not have been privileged and may supply the necessary publication to Norman's defamation claim. Accordingly the fifth claim for relief should not be dismissed.

GM next argues that plaintiff Caroline Norman cannot maintain a claim for loss of consortium because she was not married to Albert Norman at the time of his termination. In the sixth claim for relief Caroline Norman asserts a loss of consortium based upon the alleged injuries suffered by Albert Norman. GM argues that Nevada would not recognize a loss of consortium claim for two cohabiting adults and therefore this Court should dismiss the sixth claim for relief.

There is no dispute in the facts that the Normans were not married at the time the alleged incidents took place which form the basis for this suit. There also is apparently no dispute that the Normans were however living together and continued to live together until and after their marriage on November 27 1984.

The question presented before this Court is whether an essential element of a loss of consortium claim is proof of a valid marriage. The question has not been decided in Nevada but nevertheless this Court must determine how the Nevada Supreme Court would decide the issue.

Nevada clearly recognizes a cause of action for married couples based upon a loss of consortium. See General Electric Co. v. Bush 88 Nev. 360 498 P.2d 366 (1972). The claim for consortium covers such "intangible interests as 'love companionship affection society sexual relations solace and more.' Id. At 367 498 P.2d at 370 quoting Millington v. Southeastern Elevator Co. Inc. 22 N.Y. 2d 498 293 N.Y.S. 2d 305 239 N.E. 2d 897 (1968). While several state courts have explicitly refused to recognize a loss of consortium claim by an unmarried plaintiff Court which have recognized such a claim have been faced with a plaintiff who was a part of a significant and meaningful relationship. This Court finds that if faced with the question the Nevada Supreme Court would not arbitrarily deny a claim for loss of consortium to a plaintiff who had been involved in a significant relationship.

In order to sustain a cause of action for loss of consortium this Court finds that the burden is on Caroline Norman to demonstrate that her nonmarital relationship with Albert Norman was both stable and significant. Evidence of a stable and significant relationship can be demonstrated by the duration of the relationship whether the parties have a mutual contract the degree of economic cooperation and entanglement exclusivity of sexual relations and whether there is a family relationship with children. See Grant v. Avis Rent-A-Car System Inc. 158 Cal.App.3d 813 204 Cal.Rptr. 869 (1984).

The only facts presented by competent evidence to support the significance of the pre-marital relationship is as follows. The Normans were married by a Justice of the Peace on November 27 1984. First Interrogatory at 2. They have lived together since December 1981 and have held themselves out as husband and wife since March 1982. See Affidavit of Caroline and Albert Norman. By agreement Albert Norman received an interest in insurance and employment benefits of Caroline Norman on March 9 1982. Id. The Normans state that they have always intended to be and remain married for the rest of their lives. Id. Plaintiffs did not submit any additional evidence as to the significance and stability of their relationship.

Albert Norman was discharged from GM on December 31 1983. Therefore the Normans had been living together for two years and holding themselves out as husband and wife for approximately twenty-one months. It does not appear to this Court that even if a loss of consortium claim would be allowed for unmarried cohabitants that the Normans have demonstrated that the non-marital relationship was both stable and significant. See e.g. Butcher v. Superior Court 139 Cal. App. 3d 58 188 Cal. Rptr. 503 (1983) (Eleven-year relationship prior to accident supported a cause of action for loss of consortium by an unmarried cohabitant). In Bulloch v. United States 487 F. Supp. 1078 (D. N.J. 1980) the case relied on by the Normans the plaintiffs had been married well over 20 years before divorcing. At the time of the accident the Bullochs had been living together and planned on remarrying. They also had raised two children together. In contrast the facts in the case before this Court simply do not support a loss of consortium claim for Caroline Norman. Even viewing all of the facts in the light most favorable to the Normans as we must no loss of consortium claim is appropriate as a matter of law. Thus the sixth claim for relief should be dismissed. Accordingly GM's motion for partial summary judgment should be denied in part and granted in part.

IT IS THEREFORE HEREBY ORDERED that summary judgment is DENIED as to Norman's fifth claim for relief and GRANTED as to Norman's sixth claim for relief.