ARACELI ARGUELLO & Another v. DRAPER PROPERTIES, INC.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-226

ARACELI ARGUELLO & another 1

vs.

DRAPER PROPERTIES, INC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs commenced this action against Draper

Properties, Inc. (Draper), alleging loss of parental consortium.

A judge of the Superior Court allowed Draper's motion to dismiss

filed pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754

(1974). The plaintiffs appeal from the judgment of dismissal.

We affirm.

Background. In 2015, while removing snow from the roof of

a building owned and controlled by Draper, Lucas Vicuna fell to

the ground and suffered serious injuries. In 2016, he filed a

negligence action against Draper in Superior Court (underlying

1Lucas Vicuna, as parents and next friends of their two
minor children.
case). In 2019, after three years of litigation and three weeks

before the scheduled trial date, Vicuna's counsel sent a letter

to Draper's counsel in order "to move things in [the] case."

Vicuna's counsel notified the company that he now also

represented Vicuna's two sons, and for the first time, that he

intended to file loss of consortium claims on behalf of the sons

and estimated damages for the claims as "well in excess of $1

million." In response to the letter, Draper filed a motion in

limine to preclude Vicuna's children from asserting claims for

loss of consortium or, in the alternative, to require joinder of

their claims with the underlying case pursuant to Mass. R.

Civ. P. 19 (a), 365 Mass. 765 (1974), regarding compulsory

joinder of indispensable parties. At a hearing held five days

before the trial, plaintiffs' counsel opposed the motion. He

told the judge that consortium claims were "[p]ossib[le]" and

that "we're only going to bring those claims if we prevail on

the issue of negligence in [the underlying] case." He also

stated, "we made a conscious decision not to [bring the

consortium claims]. . . . We made a strategic decision"

(emphasis added). The judge denied Draper's motion but

questioned why the consortium claims were not brought "with the

rest of the case." She noted that whether the children's

potential claims ultimately would be barred was "an issue that

would have to be decided [in the future]."

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A jury returned a special verdict in favor of Draper,

finding that Draper was causally negligent but that Vicuna was

seventy percent at fault due to his own negligence.

Accordingly, Vicuna's claim failed, and judgment entered in

favor of Draper. In 2021, after a panel of this court affirmed

the judgment in the underlying case, 2 Vicuna and Araceli

Arguello, as parents and next friends of their minor children,

and through the same counsel (plaintiffs' counsel), filed a

complaint in Superior Court against Draper alleging loss of

parental consortium. A judge granted Draper's Mass. R. Civ. P.

12 (b) (6) motion to dismiss, determining that the consortium

claims were barred because of the plaintiffs' "strategic

decision" to delay filing them until after the underlying case

was resolved.

Discussion. "We review the allowance of a motion to

dismiss de novo, accepting as true the facts alleged in the

plaintiff's complaint as well as any favorable inferences that

reasonably can be drawn from them" (citation omitted). Braley

v. Bates, 100 Mass. App. Ct. 259, 260 (2021). In evaluating a

motion to dismiss under rule 12 (b) (6), we generally limit our

consideration to "the allegations in the complaint, although

matters of public record, orders, items appearing in the record

2 Vicuna v. Draper Props., Inc., 99 Mass. App. Ct. 1132
(2021).

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of the case, and exhibits attached to the complaint, also may be

taken into account" (quotation and citation omitted). Schaer v.

Brandeis Univ., 432 Mass. 474, 477 (2000). To survive such a

motion, a complaint must plausibly suggest an entitlement to

relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636

(2008).

1. Loss of consortium claims were not exempt from

compulsory joinder. Loss of consortium claims have long been

deemed independent from underlying negligence claims. Diaz v.

Eli Lilly & Co., 364 Mass. 153, 157 (1973). "[A] party is not

barred from recovering from a negligent tortfeasor for his

independent [loss of consortium] injury because his spouse or

parent was more at fault than the party being claimed against."

Morgan v. Lalumiere, 22 Mass. App. Ct. 262, 271 (1986). See

Diaz, supra at 157. General Laws c. 260, § 7, which tolls the

statute of limitations on civil actions for minors and

incapacitated persons, gives minor children until three years

after they reach the age of majority to file claims for the loss

of consortium of an injured parent. 3 However, under rule 19 (a),

a person must be joined as a party in an action if "he claims an

interest relating to the subject of the action and is so

situated that the disposition of the action in his absence may

3 A tort action must be commenced within three years of its
accrual. G. L. c. 260, § 2A.

4
. . . leave any of the persons already parties subject to a

substantial risk of incurring double, multiple, or otherwise

inconsistent obligations by reason of his claimed interest."

The plaintiffs contend that the tolling statute was

intended to protect minor children who may be unable to

participate fully in litigation and thus that it conflicts

irreconcilably with the rule of compulsory joinder. They argue

that the statute preempts the rule, thereby rendering rule 19

inapplicable to minor plaintiffs. See Hermanson v. Szafarowicz,

457 Mass. 39, 45 (2010) (where there is "an irreconcilable

conflict" between statute and court rule, "the statute

supersedes the rule"). Whatever tension may exist between the

tolling statute and rule 19, we disagree that the conflict is

"irreconcilable." As in many other instances, tolling of the

statute of limitations does not shield a minor's complaint for

loss of consortium against all procedural challenges.

In Diaz, 364 Mass. at 162 n.29, which was decided while the

Massachusetts Rules of Civil Procedure were under consideration

but before the rules were adopted, the Supreme Judicial Court

stated that a defendant's right to insist that a consortium

claim be joined with the underlying negligence action "should be

very clear under Rule 19 ('Joinder of Persons Needed for Just

Adjudication') of our new Rules of Civil Procedure." Consistent

with that admonition, we conclude that rule 19 (a) conferred on

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Draper the right to request that the plaintiffs' consortium

claims be joined with the underlying tort case.

The plaintiffs assert that requiring minor plaintiffs to

prove loss of consortium at the same time as the underlying tort

case will result in trials that "take much longer and exhaust

more judicial resources." They claim that permitting separate

consortium claims will promote judicial economy. On the

contrary, allowing multiple plaintiffs to proceed with separate

consortium actions predicated on the same injury allegedly

caused by the same conduct by the same defendant invariably

would result in repeat litigation of overlapping factual and

legal issues. 4 Moreover, depending on the number and ages of

consortium plaintiffs, "a defendant may become liable for the

loss of consortium several years, perhaps even decades, after

the injury to the parent." Angelini v. OMD Corp., 410 Mass.

653, 658 (1991).

4 We disagree with the plaintiffs' contention that the
jury's special verdict in the underlying case precluded Draper
from relitigating the issues of negligence and causation in
their loss of consortium action. Judgment entered in the
underlying case based on the jury's determination that Vicuna
was seventy percent at fault for his own injuries. The
proportion of remaining fault the jury assigned to Draper on its
special verdict slip was not essential to the judgment and thus
not issue preclusive in future actions. See Jarosz v. Palmer,
436 Mass. 526, 533 (2002). See also Cambria v. Jeffery, 307
Mass. 49, 50 (1940) (finding that both parties contributorily
negligent in tort had no effect on judgment and thus no
preclusive effect in subsequent action between same parties).

6
Here, for example, given the tolling of the statute of

limitations for minor plaintiffs, each child would have until

his twenty-first birthday to sue Draper for loss of consortium.

Tindol v. Boston Hous. Auth., 396 Mass. 515, 517 (1986); G. L.

c. 260, § 7. Further, the children would not have to sue for

loss of consortium at the same time. Therefore, even though

their father commenced his negligence action against Draper in

2016, the older child would have until 2028 to pursue his loss

of consortium claim, while the younger could separately file his

complaint against Draper as late as 2034. 5 This arrangement

would be anathema to the principles of judicial economy.

We acknowledge the advantage to consortium plaintiffs to

tolling their claims until they are old enough to articulate

their loss of the "closeness, guidance, and nurture" from their

injured parent. See Ferriter v. Daniel O'Connell's Sons, Inc.,

381 Mass. 507, 516 (1980). Yet, in certain circumstances, a

minor plaintiff may be fully capable of participating in a

lawsuit. Alternatively, a third party could testify in support

of a claim for loss of consortium. See, e.g., Gottlin v.

Graves, 40 Mass. App. Ct. 155, 160-161 (1996) (third party

testified to her observations of child's distraught behavior

following her mother's injury in car crash). "It is fair to say

5 Vicuna's sons were nine years old and twenty-two months
old, respectively, when Vicuna was injured.

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that no extensive display of facts is required to demonstrate,

in light of ordinary human experience, an emotional or

psychological dependence by [children] upon [their parent]"

(citation omitted). Id. at 161. It is noteworthy that both at

the hearing on Draper's motion to dismiss and during oral

argument in this court, plaintiffs' counsel was unable to

identify any cases where consortium plaintiffs have litigated

their claims separately from the underlying negligence case.

2. The plaintiffs lost their claims by failing to timely

assert them. In Diaz, 364 Mass. at 163 n.30, the Supreme

Judicial Court "[left] open the possibility that in appealing

circumstances [a] consortium claim might be held to be lost if

not asserted by the time the negligence action is tried." The

motion judge reasoned that "[i]f ever there were 'appealing

circumstances' to warrant dismissing loss of consortium claims

that were not joined in the underlying negligence case, . . .

they are present here." We agree.

a. The plaintiffs' strategic decision not to file their

consortium claims with the underlying tort action effectively

deprived Draper of its right to seek joinder. A "consortium

claim, when asserted at all, will usually be presented together

with the negligence claim for the physical injuries." Diaz, 364

Mass. at 162. Here, the plaintiffs do not argue, nor could they

under the circumstances, that they did not have notice of their

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children's interests in the underlying case from its outset or

that timely filing of a consortium claim was otherwise not

feasible. Nevertheless, through their counsel, they made a

"strategic decision" not to raise even the possibility of

consortium claims during three years of litigation. Instead,

plaintiffs' counsel first broached the subject as a negotiation

tool in the underlying case three weeks before trial was to

commence. Even so, during the motion in limine hearing held

five days before trial in the underlying case, plaintiffs'

counsel told the judge that a consortium claim was only

"[p]ossib[le]." When the trial began, the plaintiffs still had

not filed claims for loss of consortium. In fact, they did not

do so until after Vicuna's appeal was denied by a panel of this

court, over five years after his negligence claim was filed.

A core principle of compulsory joinder is that a party

should not be exposed to the risk of multiple or inconsistent

obligations that may occur if closely related matters are

litigated separately. See Mass. R. Civ. P. 19 (a).

Underpinning the rule compelling joinder of consortium claims

with an underlying tort action is the right to "adjudicate[e] in

an economical and consistent way the various losses that befall

a family when one of its members is injured." See Restatement

(Second) of Judgments § 48, Reporter's Notes to comment a

(1982). The prospect of trying essentially the same case twice

9
before two different juries subjected Draper to a "substantial

risk of incurring double, multiple, or otherwise inconsistent

obligations." 6 Mass. R. Civ. P. 19 (a). The plaintiffs'

tactical decision not to disclose their children's claims until

the eve of trial in a three year old tort action put Draper in

an untenable position. Although Draper quickly cobbled together

a motion in limine, the consortium claims were still

hypothetical, and the judge denied joinder and deferred

preclusion of the consortium claims. The plaintiffs' ploy thus

effectively deprived Draper of its right to seek compulsory

joinder. See Santagate v. Tower, 64 Mass. App. Ct. 324, 334

(2005) ("Intrinsic to any equitable barring of [a] claim on the

grounds of delay . . . is the requirement that there be

disadvantage to another flowing from that untimeliness"

[citation omitted]).

b. The pretrial order denying joinder in the underlying

case does not govern this appeal. The plaintiffs further assert

that the judge's decision on Draper's motion in limine in the

underlying case was a final order that foreclosed Draper from

relitigating the issue of joinder or seeking dismissal of the

6 We disagree with the motion judge's particular
determination that compulsory joinder was implicated here
because the jury in the subsequent consortium action "may well
reach a result inconsistent with the jury result in the first
case." Rule 19 (a) concerns legal obligations, not legal
results.

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consortium claims. See Bellermann v. Fitchburg Gas & Elec.

Light Co., 470 Mass. 43, 60 (2014), S.C., 475 Mass. 67 (2016)

(offensive issue preclusion requires "full and fair opportunity

to litigate the issue in the first action" and prior

determination which was "essential to the underlying judgment"

[citations omitted]). We disagree.

Plaintiff's counsel told the motion in limine judge that a

consortium claim was only "[p]ossib[le]." He made it clear that

the decision to oppose joinder was strategic. As discussed

above, the judge denied Draper's requests to preclude the

consortium claims or to join them with the jury case scheduled

to begin five days later, which undoubtedly would have caused

significant delay in that already three year old matter.

However, she noted that whether the consortium claims ultimately

would be barred was an issue that would have to be decided in

the future. Given the pressing circumstances, the judge's

practical approach was understandable. The plaintiffs' failure

to raise their claims in a timely manner made it impracticable

for the judge to grant Draper's rule 19 (a) motion and require

the claims to be tried together. Thus, we do not read her order

as intended to be the type of fully considered decision that

would have preclusive effect on future litigation of the issues.

See Bellermann, 470 Mass. at 61-62.

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c. The complaint does not plausibly suggest entitlement to

relief. The plaintiffs made a strategic decision to wait over

five years after the underlying case was initiated to file their

claims. They gambled that Massachusetts law exempted them from

rule 19 joinder and used the consortium claims as a bargaining

chip for settlement. In the interim, Draper litigated the

underlying case to a successful jury verdict and affirmance of

that verdict in this court. Although it does not speak directly

to the consequences of a party's failure to join litigation when

on notice of a claim and where joinder is otherwise compulsory,

rule 19 is rooted in equity. See Reporter's Notes to Rule 19,

Mass. Rules of Court, Rules of Civil Procedure, at 35 (Thomson

Reuters 2024). We agree with Draper that the plaintiffs'

strategy contravened the core principles of rule 19 (a), and

constituted the very scenario contemplated by Diaz, 364 Mass. at

163 n.30. Permitting this strategy to succeed under the

particular facts and procedural posture of this case would

render the compulsory joinder rule ineffectual and unfairly

prejudice Draper. See id. ("in appealing circumstances the

consortium claim might be held to be lost if not asserted by the

time the negligence action is tried"). Cf. Santagate, 64 Mass.

App. Ct. at 333 (equitable defense of laches available where

"there has been unjustified, unreasonable, and prejudicial delay

12
in raising a claim"). We conclude that the plaintiffs "lost"

their claims by consciously failing to assert them, and

13
therefore their complaint cannot plausibly suggest entitlement

to relief.

Judgment affirmed.

By the Court (Neyman,
Brennan & Toone, JJ. 7),

Clerk

Entered: September 30, 2024.

7 The panelists are listed in order of seniority.

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