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William C. Altreuter
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Saturday, February 28, 2004

The CLE I was part of on Monday was on calculating damages in wrongful death actions, one of those topics that you never think you might become expert on until suddenly you realize that it's something you've been working on for two decades. New York is better than some states and worse than others in this area: although the statute limits recovery for wrongful death to "pecuniary loss", the jurisprudential notion of what that encompasses is pretty broad. For example, the loss of "love, nurture, care and guidance" that a child sustains as the result of the death of a parent is recoverable, and there is even a case floating around out there that talks about the value of these things to a grandchild. The value of this is difficult to quantify in economic terms, although there are studies, and there are economists that are prepared to speak to the question. The catch is that in order for there to be any sort of recovery for wrongful death, there must be provable pecuniary loss that is personal to the plaintiff. A husband's death means that a wife will sustain the loss of his economic contribution to the household, the death of a child means that the child's parents sustain the loss of the future support they could have expected from their child-- like that. You see where I'm going with this, right? It has long been the law that regardless of the emotional and economic relationship between two gay partners, the death of one did not result in provable economic loss to the survivor. I have, over the course of my professional life, had a few wrongful death claims dismissed on this basis myself. Happily, there is now New York decisional law that recognizes Vermont civil unions as forming the basis for a claim of pecuniary loss in the context of wrongful death actions-- an example of the very simple, humane effect that recognition of gay marriage will have. As Beth notes, this is a subject that draws strange opposition from all sorts of otherwise right thinking people. It is very hard for me to get my mind around why this should be so-- why anyone should care what someone else's sex life is like. Reading the polling data that Beth cites I can see why both Kerry and Edwards are trying to dodge the question-- their spines are both fairly new and still soft, after all, but wouldn't it be cool if Kerry actually had the guts to say something like, "I believe in lromance, I believe in love. I believe that when two people are in love they should be allowed to marry. I believe that marrage is a socially stabilizing force in society, and therefore I am in favor of allowing people who are in love to marry each other. I believe that religioius freedom is one of the most important principles we have in the United States, and I fully support the right of any religion to decide which marrages it wishes to sanctify, but I do not believe that it is the business of government to do any more than issue licences to people who wish to marry. To go further than that would be to set the government up as its own sort of religion-- which would be bad-- or to sanction the intrusion of government into our bedrooms-- which would be worse."

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