MEMORANDUM OPINION AND ORDER
This matter is before the Court upon the motion of defendant Air Florida, Inc. to dismiss the claim of the male plaintiff for loss of consortium on the ground that since the plaintiffs were not yet married at the time the female plaintiff was injured, such a claim is not cognizable under relevant law. The female plaintiff was injured in the crash of an airplane in Washington, D.C. on January 13, 1982. She was a passenger aboard the airplane; after its crash into the 14th Street Bridge (which spans the Potomac River) she was rescued and survived, with injuries. She has sued the defendants for such injuries, and her husband seeks relief for damage to his "right to enjoy the love, services, and affection of his wife." For the reasons which follow, the motion shall be granted and the claim of the male plaintiff shall be dismissed.
This evidently is a question of first impression in this jurisdiction. Nonetheless, issues concerning the rights of unmarried cohabitants, including the right to maintain a consortium action, have received increasing judicial attention in recent years and no doubt will continue to do so. See generally, Marvin v. Marvin, 18 Cal. 3d 660, 683, 557 P.2d 106, 134 Cal. Rptr. 815 (1976) (noting "pervasiveness" and "social acceptance" of nonmarital relationships). Indeed, census data shows that the number of unmarried cohabitants has increased greatly over the past two decades, "representing," according to one commentator, "a trend which is likely to continue." Meade, Consortium Rights of the Unmarried: Time for a Reappraisal, 15 Fam. L.Q. 223, 224 (1981). Plaintiffs ask this Court to follow the recent authority from other jurisdictions which have allowed a spouse to maintain a consortium claim for injuries to the spouse suffered before marriage. Whatever wisdom and logic there might be in allowing such a cause of action, however, this Court is not free to fashion new theories of relief, but is bound by what the highest state court in the relevant jurisdiction would rule, were this claim before that tribunal. See generally Steorts v. American Airlines, Inc., 207 U.S. App. D.C. 369, 647 F.2d 194, 196-97 (D.C. Cir. 1981); United States v. Gower, 164 U.S. App. D.C. 98, 503 F.2d 189, 191 (D.C. Cir. 1974); see also Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938).
Plaintiffs have lived together since November, 1980. Memorandum in Support of Motion for Leave to File Second Amended Complaint, at 3. During this entire time they have resided in the Commonwealth of Virginia. Plaintiff's Answer 2(b) to First Interrogatories of Defendant Boeing Co. In April, 1981, plaintiffs purchased, jointly, the home in which they since have lived. Memorandum in Support of Motion for Leave to File Second Amended Complaint, at 3. They were formally engaged in June, 1981, and in December, 1981, set the date for their wedding. Id. They were married on May 15, 1982, as they had planned. Id.
To the extent that this can be analogized to a typical consortium claim, it presents a choice of law question in that two jurisdictions are potentially interested: the District of Columbia (the site of the wrong to the female plaintiff) and the Commonwealth of Virginia (the plaintiffs' domicile and, accordingly, the domicile of the relationship upon which the consortium claim is founded). Linnell v. Sloan, 636 F.2d 65, 67 (4th Cir. 1980) (applying District of Columbia choice of law rules); Miller v. Holiday Inns, Inc., 436 F. Supp. 460, 462 (E.D. Va. 1977); Card v. American Brands Corp., 401 F. Supp. 1186, 1188 (S.D.N.Y. 1975); Brookley v. Ranson, 376 F. Supp. 195, 198 (N.D. Iowa 1974); McVickers v. Chesapeake & O. Ry. Co., 194 F. Supp. 848, 848-49 (E.D. Mich. 1961). Where there is a conflict among the laws of the potentially interested jurisdictions, the choice of law principles of the District of Columbia (in accordance with the Restatement, Second, of the Law of Conflict of Laws) provide that the law governing the claim will be the law of the state with the most significant relationship to the matters at issue. Hitchcock v. United States, 214 U.S. App. D.C. 198, 665 F.2d 354, 360-61 (D.C. Cir. 1981); In Re Air Crash Disaster at Washington, D.C. on January 13, 1982, 559 F. Supp. 333 (D.D.C. 1983) (Memorandum Opinion on law governing consolidated trial).
Neither jurisdiction has yet allowed a consortium action by a person not married to the injured party at the time of injury. As such, the Court will determine whether the laws of the two jurisdictions that would govern this action are in conflict by examining their laws controlling typical consortium claims. This is appropriate since plaintiff does not assert a different cause of action or seek a different remedy; he only asks that the loss of consortium law be extended to apply to his circumstances.
The laws are in conflict. The District of Columbia recognizes the right of the spouse of an injured person to maintain an independent suit for damages for loss of consortium. See, e.g. Hitaffer v. Argonne Co., 87 U.S. App. D.C. 57, 183 F.2d 811 (D.C. Cir.), cert. denied, 340 U.S. 852, 95 L. Ed. 2d 624, 71 S. Ct. 80 (1950). In Virginia, however, the husband of an injured woman does not have that right. The Virginia Code provides that:
In an action by a married woman to recover for a personal injury inflicted on her she may recover the entire damage sustained including the personal injury and expenses arising out of the injury, whether chargeable to her or her husband, notwithstanding the husband may be entitled to the benefit of her services about domestic affairs and consortium . . . and no action for such injury, expenses or loss of services or consortium shall be maintained by the husband.