Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ledesma v. Brahmer

United States District Court, D. Nebraska

October 16, 2014

ANTONIO LEDESMA, as personal Representative for the Estate of Maria Ledesma (deceased) and as legal guardian of Nancy Osorio (a minor); and RICARDO OSORIO, Plaintiffs,
v.
RICHARD BRAHMER d/b/a BRAHMER TRUCKING, Defendant. RICHARD BRAHMER d/b/a BRAHMER TRUCKING, Counterclaimant,
v.
RICARDO OSORIO, Counterclaimant Defendant.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, Senior District Judge.

This matter is before the court on plaintiffs' motion for partial summary judgment, Filing No. 28, and on defendant/counterclaimant's motions for partial summary judgment, Filing No. 29, and in limine, Filing No. 37. Plaintiffs seek a declaration that plaintiff/counter-defendant Ricardo Osorio is the common-law spouse of Maria Ledesma (hereinafter, "the decedent"). Defendant/counterclaimant Richard Brahmer seeks summary judgment on certain items of the plaintiffs' damages. Brahmer also moves in limine to preclude the testimony of the plaintiffs' expert under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (1993). This is a wrongful death action involving a fatal car accident that occurred in Fremont County, Iowa, on March 18, 2012. This court has jurisdiction under 28 U.S.C. ยง 1332 (diversity of citizenship).

Plaintiff Antonio Ledesma is the personal representative of the decedent's estate and the guardian of the decedent's minor child. See Filing No. 1, Complaint, Ex. 1, Letters of Personal Representative, Order Appointing Guardian. Plaintiff Ricardo Osorio is alleged to be the surviving spouse of the decedent. Id., Complaint at 1. The plaintiffs are alleged to be residents and citizens of Tennessee. Id. Defendant Brahmer Trucking is a sole proprietorship owned and operated by Richard Brahmer, who is a resident and citizen of Nebraska. Id. at 1-2. This court earlier ruled that Iowa law applies to this action. See Filing No. 26, Memorandum and Order.

The plaintiffs allege that the defendant was negligent and proximately caused the decedent's death. Filing No. 1, Complaint at 4. The defendant has filed a counterclaim against plaintiff Ricardo Osorio alleging that Osorio's negligent actions caused the decedent's injuries and death. Filing No. 5. Ricardo Osorio asserts he is entitled to damages for loss of consortium as the common-law spouse of the decedent and seeks a declaration to that effect. In support of his motion he submits evidence that he and the decedent, Maria Ledesma, had lived together for nine years, held themselves out as husband and wife, and are parents of Nancy Osorio. See Filing No. 28, attachments. He concedes, however, that, although they held themselves out as married, they did not have a marriage certificate. Filing No. 28, Attachment 1, Brief at 2. The pleadings and evidence indicate that the couple resided in Tennessee; there are no allegations they resided elsewhere. See id., Attachment 3, Ledesma statement. The defendant opposes the motion, arguing that the purported "marriage" is invalid and Ricardo Osorio cannot maintain a claim for loss of consortium under Iowa law.

In his motion for partial summary judgment, the defendant contends that he is entitled to judgment in his favor on certain elements of the plaintiffs' purported damages. As noted, he contends plaintiff Ricardo Osorio cannot maintain a claim for loss of consortium. He next argues that undisputed evidence shows that the decedent's body was dismembered on impact and she died immediately thereafter and consequently cannot recover for conscious pain and suffering and other pre-death elements of damages.[1] Further, he argues that it is undisputed that there can be no recovery for the plaintiffs' decedent's loss of earning capacity because the plaintiffs have not provided any evidence to support the claim.[2] He also asserts that attorney fees are not available under Iowa law. His arguments are based, in part, on the plaintiffs' failure to comply with discovery requests.

In opposition to the motion, the plaintiffs have shown that they have since complied with several discovery requests and have produced the report of their expert, Alfred J. Marchisio, Jr., M.S., who will testify as to the value of the decedent's services. See Filing No. 34, Ex. 1. They do not address or challenge the defendant's contention that attorney fees are not recoverable unless authorized by statute or contract.

The defendant's motion in limine is directed at the plaintiffs' proposed expert testimony. The defendant argues that the evidence is inadmissible under Daubert, 509 U.S. at 593.

I. LAW

A. Standard of Review

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 5(c). To overcome a motion for summary judgment, the nonmoving party must present enough evidence to allow a reasonable jury to find in its favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In analyzing the evidence on a motion for summary judgment, this court must view the factual record and draw reasonable inferences in favor of the nonmoving party. Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). "Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate." Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir. 2004).

B. Loss of Consortium/Marital Status

Under Iowa law, the general rule is that a spousal claim for loss of consortium requires a marital relationship. Doe v. Cherwitz, 518 N.W.2d 362, 364 (Iowa 1994). Iowa courts do not recognize a claim for loss of consortium by a cohabiting partner in a marriage-like relationship. Laws v. Griep, 332 N.W.2d 339, 341 (Iowa 1983).

In Tennessee, marriage is controlled by statute, and common-law marriages are not recognized. Martin v. Coleman, 19 S.W.3d 757, 760 (Tenn. 2000) (declining to hold that unmarried couples may create an implied partnership simply by their continued cohabitation).[3] Tennessee will recognize a valid common-law marriage entered into in a jurisdiction where common-law marriages are sanctioned. Andrews v. Signal Auto Parts, Inc., 492 S.W.2d 222, 223 (Tenn. 1972).

Iowa recognizes both ceremonial and common-law marriages.[4] In re Marriage of Derryberry, 2014 WL 2884760, *2 (Iowa Ct. App. 2014); Conklin by Johnson-Conklin v. MacMillan Oil Co., 557 N.W.2d 102, 104 (Iowa Ct. App. 1996). The three elements necessary to find a common-law marriage are: (1) present intent and agreement to be married; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. Conklin, 557 N.W.2d at 105; In re Marriage of Winegard, 278 N.W.2d 505, 510 (Iowa 1979). The burden of proof is on the party asserting the existence of a common-law marriage. Conklin, 557 N.W.2d at 105. When one party is deceased, the party asserting the marriage must prove the elements of a common-law marriage by a preponderance of clear, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.