## Facts

- Marie Fitzgerald’s husband was injured while working on a construction project owned or controlled by the defendants.
- Fitzgerald sued the defendants in a separate action seeking damages for loss of consortium resulting from her husband’s injuries.
- The circuit court dismissed the complaint for failure to state a claim because Wisconsin law then did not recognize a wife’s independent consortium claim.
- While Fitzgerald’s appeal was pending, the Wisconsin Supreme Court decided *Moran v. Quality Aluminum Casting Co.* (1967), overruling prior authority and recognizing a wife’s cause of action for loss of consortium.
- The appeal raised whether *Moran* applied to Fitzgerald’s already-filed case and whether a consortium claim must be brought together with the injured spouse’s personal-injury claim.

## Issues

1. Whether the rule recognizing a wife’s cause of action for loss of consortium applies retrospectively to cases pending or arising before the rule was announced.
2. Whether a wife’s loss-of-consortium claim must be joined with her husband’s personal-injury action, rather than pursued as a separate suit.

## Decision

- The Wisconsin Supreme Court reversed the dismissal and remanded for further proceedings.
- The court held that *Moran* applies retrospectively to existing causes of action not barred by limitations, including cases pending on appeal.
- The court announced that, when feasible, a wife’s consortium claim should be joined with the husband’s personal-injury action; separate suits are disfavored.
- The joinder requirement was treated as prospective in effect, so Fitzgerald’s pre-*Moran* separate action was not barred for failure to join.

## Legal Principles

- Under Wisconsin’s general retroactivity rule for overruling decisions, new judicial rules apply retrospectively unless a recognized exception justifies limiting the decision to prospective operation.
- Reliance on a prior rule as a basis to avoid tort liability, without more, is generally insufficient to justify purely prospective application.
- A spouse’s consortium claim is distinct but arises from the same underlying tort as the injured spouse’s bodily injury claim; joinder is favored to avoid duplicative litigation and inconsistent determinations on liability and causation.
- Courts may pair retrospective recognition of a cause of action with procedural requirements (such as joinder) applied prospectively to manage future litigation.

## Conclusion

The court held that the newly recognized wife’s loss-of-consortium claim applied to pending and non-time-barred cases, reversed the dismissal of Fitzgerald’s complaint, and directed that future consortium claims be joined with the injured spouse’s personal-injury action when feasible.


Fitzgerald v. Meissner & Hicks, Inc., 38 Wis. 2d 571, 157 N.W.2d 595 (Wis. 1968)