(dissenting). After extolling the virtues of prospective only holdings in general and justifying the prospective only holding in Theama v. City of Kenosha, 117 Wis. 2d 508, 344 N.W.2d 513 (1984), the majority opinion concludes that Stacey Lea, Kimberly *48Ann, and Barbara Lynn Bell’s claims merit a special exception to the prospectivity holding in Theama on grounds that the children were “similarly situated” to the Theama plaintiffs and equitably should be given similar treatment. At 2. The majority states that: “The overarching concern present in a decision to create a new cause of action is that the change works equitable results, i.e., that the element of fairness is preserved. Fairness in this context is best defined by the principle that those parties ‘similarly situated’ are treated similarly.” At 9.1 would contend that the Bell children were not “similarly situated” to the Theama children by any standard previously used by this court, and that the majority decision creates an injustice to the defendant, Ronald E. Holup, by rendering a Pierringer release entered in good faith by his insurer and the Bell parents useless in this case, leaving Holup with no liability protection or a defense by his insurer. It is not explained in this record why Holup is not a party to the appeal unless it is that his insurer has been released from all further defense through the Pierringer release.
The decision to make a prospective only ruling involves the balancing of countervailing interests. Making a ruling prospective only recognizes that the interests of potential defendants as a group take priority over the interests of potential plaintiffs as a group before the new rule is recognized. The majority states exceptions to such a rule must distinguish the particular plaintiff before the court will except from the group of general plaintiffs who will generally be denied the cause of action. That particular plaintiff then would bear the burden of proving that he is so different from the general plaintiffs that the cause should be allowed.
*49If such exceptions are to be allowed, the criteria for allowing them should be clear. Without clear criteria, each case becomes a new “balancing” of countervailing interests. If every case involves this balancing on a “case by case” basis as suggested by the majority, “prospective” ruling is gutted of its meaning and goal. No particular trial judge or counsel could know what “similarly situated” persons are.
Harmann v. Hadley, 128 Wis. 2d 371, 384, 382 N.W. 2d 673 (1986), specifically determined that a new balancing was necessary when this court mistakenly rejected a petition for bypass containing the same issue that was eventually decided in another case. It was clearly a narrow case based purely on a procedural history mirroring the law-making case but for this court’s rejection of the issue earlier. In Harmann we excepted the plaintiffs from the prospective only holding of Koback v. Crook, 123 Wis. 2d 259, 276, 366 N.W. 2d 857 (1985), since the plaintiffs in Harmann were denied the opportunity to be the plaintiffs bringing about the new common law rule due to this court’s oversight in not accepting the bypass petition. We caused the Harmann plaintiffs not to be the first beneficiaries of the newly created cause of action by rejecting their bypass petition.
The majority now widens the exception one step and invites further steps. The majority allows the plaintiffs to proceed because the trial court recognized the cause of action before we did.1 This depended, however, *50not on the procedural timing at this court, but on the judicial activism of the particular trial judge. Other plaintiffs may have had their actions rejected at the trial court because that court exercised judicial restraint and did not attempt to “predict” what this court would do. They too would suffer because of a prospective only application. Additional plaintiffs’ attorneys, not willing to use the court’s and their clients’ time pursuing a claim not previously recognized in Wisconsin law, elected not to plead such a claim when a trial judge might have heard and accepted such a claim. The owners of such a claim, the children who lost parental consortium, would be the true victims, although it was trial counsel who elected not to pursue the claims.
Injustice can be found at every level when a claim is allowed prospectively or retroactively. However, in Theama the injustice to potential defendants and to the administration of justice in general was determined to be greater in comparison to the injustice suffered by potential plaintiffs. Such considerations were foreseeable and were considered when the rule of prospectivity was announced in the rule-making case. Injustice created by this court, as in Harmann, was not foreseeable, *51and therefore a narrow exception was created. The majority now whittles away at a prospective barrier raised to protect potential defendants by citing foreseeable hardships considered when the rule was announced. Although there are no hard and fast rules of when a new cause of action should be prospective only after a prospective only application is announced, that prospective application should be “hard and fast.” At 14.
The difficulty of finding a balance on a case by case basis is that such an analysis is highly fact oriented. Since this court cannot rule on all the potential cases that could have come under the new rule, it should attempt to direct both the lower court and the practitioner when to grant such an exception, when to bring such a claim, or when to settle a claim already in progress. In the instant case, it is clear that Mr. Bell has suffered a serious injury from which he may never recover. It is also clear that his children will lose his demonstrable love and companionship perhaps for the rest of their lives. When one hears such lamentable facts, it is easy to be tempted to find a way around the “rules” to allow compensation for the children, even though economic compensation can never substitute for the loss.
However, the Bell children come before this court as the single members of an entire class of children — all of which have been denied relief. Defendants too represent a class — the class of defendants whose rights have been protected by a prospective ruling. For the children, it is normal to be moved emotionally by pointing to their and their parents’ particular tragedy. Defendants, however, must point to their concerns as a class, not as individuals. Although the court previously determined that those class interests of the defendant of *52reliance and fairness were greater than the class of plaintiffs represented by the Bell children, the majority cannot bring itself to deny the Bell children a chance for a remedy. Yet, it cannot give a specific reason why these defendants are different than other protected defendants and should suffer liability where others are immune. In Harmann, the court concluded that the defendants were situated similarly to the defendants in Koback. The majority has not considered the defendants in this case but only the plaintiffs’ alleged similar situation.
One specific defendant, Ronald Holup, will suffer a specific as distinguished from a class harm because of the majority decision. Holup’s insurer, Home Mutual Insurance Company, relied on the law as it was before any suits in this case were commenced and settled with Mr. and Mrs. Bell. Home exhausted its entire policy limits leaving Holup without any right to further defense by Home by specific language in the policy. However, since Home secured a Pierringer release from Mr. and Mrs. Bell, the only parties with a recognized cause of action at the time, there were no possible claims of Holup for which he would need a defense. Now, through a third party action and subsequently direct action, Holup is being sued by the children. His insurer protected Holup in reliance on the law before the suit was started, and Holup must now defend against the children’s independent claims, even though what his insurer attempted to purchase for him was “complete” protection from suits. It is certain that at the time of the release Mr. and Mrs. Bell intended to relinquish all rights they had against Holup, and there was no intent for the children to sue. Even the Bell family attorney, who also served as the guardian ad *53litem, did not name Holup or Home in the original complaint.2
The majority states “we have found the fact that the trial judge ruled favorably, initially, on the status of the claim, and that the plaintiff children have persistently pursued their claim at each stage of the proceed*54ings, to be determinative.” At 14. Obviously, the majority does not consider a notice of claim or signing of a Pierringer release to be a stage of the proceedings, because it is clear that the children did not assert any rights at that stage. Both parties relied on the prior law, and, at least initially, respected the spirit of the release.3 Then, even though the children’s claim was not presented at the time the release was signed, subsequently those claims were demanded seeking a change in the law to enforce a new claim against Holup. The majority opinion labels the recognition of a claim by children for loss of society and companionship as a new cause of action.
Given this specific reliance by Holup, Home, Mr. and Mrs. Bell, and the Bell family attorney in entering a release contract, I see a specific instance of the injustice that prospective ruling is intended to prevent. Certainly if Home or Holup knew that this contract would not protect him to the limits of his policy, they could have exercised their option and demanded a full trial. Since Holup now has no protection whatsoever and no right to an insurer supplied defense, he gained nothing through this release contract insofar as the Bell children’s claims are concerned.4 Assuming Home Mutual wished to purchase the maximum protection given a limited fund *55for Holup, as any good insurer would, it may not have settled such a claim unless the Bell children were included.5 The exclusion of Home and Holup in the Bell family attorney’s first complaint seems to suggest that although the children were not named in the release, there was a tacit understanding that any potential interests the children might have had were relinquished by the release.6 The majority, however, would circumvent the intent of the contracting parties and allow the action to proceed against Holup.
When the majority places “similarly situated” in quotes, it must have derived some specific meaning from another case or source, so it is not a term of art conceived in this case. I believe the majority has tortured the concept of “similarly situated” as stated in Harmann and expanded that narrow exception to a prospective only ruling. The majority notes that this characterization was confirmed by Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 491, 387 N.W.2d 751 (1986). Harmann was decided because of a fortuitous event— this court’s denial of a petition to bypass on the same issue just five months before. Like the plaintiffs in Delvaux, there was no “fortuitous event” which prevented the Bell children from bringing the law making case. This is conceded by the majority in footnote seven of the majority opinion.
Although the majority opinion cites other decisions where exceptions were made to' a “prospective only” *56rule, the “exceptions” were announced in the case that made the change in the rule with the justification for the exception.7 This limited prospectivity approach avoids a “case by case” erosion of an announced rule, and gives clear guidance to the lower courts.
If the majority opinion is not based on a similar procedural history, the majority must base its definition of “similarly situated” plaintiffs on the factual similarities of Theama plaintiffs and the litigants in the instant case. To that end, I will review the facts of these cases.
In Theama, Mr. and Mrs. Theama and their children, Tracy and Terry, by their guardian ad litem, were suing the city of Kenosha together in one suit. All of the consortium claims were joined with the personal injury claim of Mr. Theama, the physically injured party. None of the claims of any of parties had been settled, and the city of Kenosha had denied the claims of both the parents and the children and was defending against both the legal basis and the merits of all the claims. No releases were signed by the Theama parents or children when this court finally considered the case.
On March 5, 1982, Bernard and Sandra Bell signed a Pierringer release of Home Mutual and Ronald Holup, prior to the filing of any complaint in this action. The original complaint, filed on April 27,1982, did not name *57Holup or Home Mutual as parties. The guardian ad litem for Stacey Lea, Barbara Lynn, and Kimberly Ann Bell, was not appointed until April 27, 1982, even though he represented the Bell family before that date, at least at the time the release was executed. Holup and Home Mutual were joined as third-party defendants in a complaint for contribution joined as third-party defendants in a complaint for contribution by Wisconsin Power and Light which was filed on May 20, 1982. These third-party contribution claims were dismissed on October 21, 1982, for any claim of contribution resulting from a judgment for the parents by virtue of the Pierringer release. The trial court ruled that contribution claims that might arise from judgments for the children, while not yet recognized by law, were not dismissed by virtue of the release. On September 19, 1983, the children alone, by their guardian, filed an amended complaint naming Home Mutual and Holup as first party defendants against the children’s claims. On October 25, 1983, the trial court signed an order dismissing Home Mutual Insurance Company for (1) all claims by any party by virtue of exhaustion of its policy limits, $25,000; and (2) the lack of any further duty to defend Ronald Holup. By this same order, the trial court attempted to dismiss Holup for all claims of Bernard and Sandra Bell by virtue of the Pierringer release. However, since Bernard and Sandra Bell never filed suit against Holup, this dismissal was not necessary. The plaintiffs’ family attorney and guardian ad litem, objected to this order because Bernard and Sandra Bell never brought suit against Holup and dismissal was therefore inappropriate.8 However, the record does not *58reflect that the order was rescinded, or any change was made in the order, and therefore Home Mutual Insurance is no longer a defendant in this action.
These facts indicate that the Bell children were not “similarly situated” procedurally or chronologically to the Theama children. Given that fact, “similarly situated” can mean anything from “identical to” or “having brought a cause of action for loss of parental consortium any time after the accident happened in Theama,” i.e., after June 27, 1978. Of course, the latter interpretation would greatly decrease the realm of the prospectivity.
In Theama, 117 Wis. 2d at 525-26, we recognized that: “Because each child of an injured parent would possess his or her own cause of action, multiple lawsuits could potentially arise from one occurrence. However we note that in the instant case, the claims of the minor children were combined with those of the father and mother. Therefore, the issue of multiple claims is not before us in this case.”
Although Theama specifically declined to rule on the issue of multiple claims, the facts of the instant case clearly involve multiple claims being brought against a tortfeasor who would otherwise be dismissed by virtue of a Pierringer release. Therefore, the question of multiple claims is directly before the court. The Bell children cannot cite Theama to justify multiple claims; Theama specifically declined to decide the issue. The Bell chil*59dren are therefore dissimilarly situated from the Theama children, since the facts that the Bell children base their claim on raise an issue that did not need to be decided to grant the Theama children their cause of action.
The majority can reach the result it did if it considers the issue of multiple claims immaterial. However, a specific discussion of the multiple claims issue should be undertaken. A sub silentio ruling without considering the precedent would lead to speculation on the exact meaning of the majority opinion. I would require mandatory joinder of the children’s claims for loss of a negligently injured parent’s consortium.
Theama, 117 Wis. 2d at 511, recognized that a child’s cause of action was logically implied by Shockley v. Prier, 66 Wis. 2d 394, 225 N.W.2d 495 (1975), which allowed a parent to recover for the loss of a negligently injured child’s consortium, and Moran v. Quality Aluminum Casting Co., 34 Wis. 2d 542, 150 N.W.2d 137 (1967), which allowed a wife to recover for the loss of her negligently injured husband’s consortium. However, Shockley concluded: “that a parent may maintain an action for loss of aid, comfort, society and companionship of an injured minor child against a negligent tort-feasor provided, and on condition, that the parent’s cause of action is combined with that of the child for the child’s personal injuries.” Id. at 404. (emphasis added.) Moran, 34 Wis. 2d at 558, also concluded “that a wife may maintain an action for loss of consortium of her husband against a negligent tort-feasor provided, and on condition, that her cause of action is combined with that of her husband for his injuries.” (Emphasis added). Although the Moran rule was modified by Fitzgerald v. Meissner & Hicks, Inc., 38 Wis. 2d 571, 581-82, 157 Wis. *602d 595 (1968), it did not consider the possibility that some claims might be barred by a different statute of limitations, since the statute is the same for husband and wife.9 It would only be logical to extend these join-der requirements to a child’s cause of action for loss of a negligently injured parent’s consortium. Because each parent suing for the loss of a child can only have one claim, the maximum claims possible under Shockley is three, one for the actual physical injury, and one for each parent’s loss of the child’s consortium. However, the number of claims possible under Theama is limited only by the parents’ previous proclivity to procreate. Since the multiple claim problem is exponentially greater with children, the need to limit its exercise is much greater.10 Logic dictates that if children are *61granted the same rights as parents for consortium, then they should be bound by the same limitations.
Theama also depended on precedent from three other jurisdictions to support the cause of action. See Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981); and Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980). Since Theama was published, three other courts recognized the cause of action. See Ueland v. General Metals Company, 103 Wash. 2d 131, 691 P.2d 190 (1984); Hay v. Medical Center of Vermont, 145 Vt. 533, 496 A.2d 939 (1985); Rosen v. Zorzos, 449 So. 2d 359 (Fla. Dist. Ct. App. 1984). Of these six jurisdictions, two [subsequently] have totally overruled the child’s cause of action for their negligently injured parents’ consortium. See Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf R.R. Co., 335 N.W.2d 148 (Iowa 1983) *62overruling Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981); Rosen v. Zorzos, 467 So. 2d 305 (Fla. 1985) overruling Rosen v. Zorzos, 449 So. 2d 359 (Fla. Dist. Ct. App. 1984). Of the four other jurisdictions retaining the child’s cause of action for their negligently injured parent’s consortium, two, the Ueland and Hay cases, require joinder of the child’s claim to control multiple claims. In addition to the jurisdictions that Theama cited as rejecting such a cause of action, at least three other jurisdictions have considered and denied such a cause of action since Theama was published, expressing concerns about the multiplicity of claims. Lewis v. Rowland, 287 Ark. 474, 701 S.W.2d 122 (1985); Huter by Huter v. Ekman, 137 Ill. App. 3d 733, 484 N.E.2d 1224 (1985); Sanders v. Mt. Sinai Hospital, 21 Ohio App. 3d 249, 487 N.E.2d 588 (1985).
Section 803.03(2)(a), Stats., requires joinder of related claims, including loss of consortium claims, but only if those principal claims are actually brought. In the present case, the parents actually settled their claim and the children are proceeding against Holup independently. If Holup had not settled with the parents and the parents sued, he would have known three years from the date of the injury whether the children were going to sue him, because the children would have been required by sec. 803.03(2)(a)5 to join with the underlying claims of Mr. Bell. Under the present system of statutes of limitations, a child suing for loss of consortium has three years to bring his claim if his parent sues within those three years. Under sec. 803.03(2)(a), the child is a mandatory party to the action, and the child’s claim would be dismissed if brought independently if his parent sued. However, if his parents do not sue, but settle or allow their underlying claim to be extinguished after *63the three year statute of limitations passes, the child can sue two years after the age of majority, possibly 20 years after the injury to the parent. Section 893.16 (1983-84). This disparate treatment of claims subjects the settling tortfeasor to disparate statutes of limitations. Where the parent has allowed the underlying claim to lapse, the tortfeasor may not have investigated the underlying claim for possible defenses. If sued by a child independently 19 or 20 years later, the tortfeasor may be unable to perform such an investigation sufficient to mount a defense to the underlying claim, and therefore be subject to liability to the child.
It is also unclear whether sec. 803.03(2)(a), Stats., requires an independent action for a child’s loss of a negligently injured parent’s consortium to be joined with another independent action by other children. Although it is defined as derivative from the principle claim where the principle claim has not been adjudicated, a child’s claim for loss of a negligently injured parent’s consortium has no relationship with other such claims. Therefore, independent lawsuits could be brought against the tortfeasor years after the injury. The first suit would establish the liability of the tortfeasors by determining whether the physically injured party would have been able to recover for damages for the underlying injury and the damages for the first child to sue. Remaining children could then sue on the basis of the liability established. If any defendant attempted to dispute that liability, he would be estopped from denying the liability by the record of the first case. See e.g., Leimert v. McCann, 79 Wis. 2d 289, 293, 255 N.W.2d 526 (1977), (“The doctrine of estoppel by record prevents a party from litigating again what was actually litigated or might have been litigated in a former *64action.”) Damages of any remaining children, however, could be at issue in every remaining suit, and it would be the option of that child (if of majority) or his guardian ad litem to independently litigate those damages.
All these considerations would have a chilling effect on settlements. Insurers and tortfeasors have no way of predicting what a verdict might be for consortium eighteen or nineteen years after the underlying injury occurred, and insurers will be unable to decide what premium to charge for such an exposure. It will take nineteen years from the date of Theama to determine what “experience” insurers have with loss of consortium claims to enable them to set a premium that accurately reflects the losses.
The majority recognized these concerns by making Theama prospective only. At 7. The amount of litigation generated might not be realized for years and extin-guishment or limitation of the cause of actions for a child’s loss of a negligently injured parent’s consortium that already accrued would truly work an injustice.
Making joinder mandatory, as Shockley wisely did, would return predictability to the action and encourage settlements. Suits or settlements would have to be brought within the statute of limitations for the underlying claim of the parent, three years. Section 893.54(1), Stats. This would allow the legislature to study the effects of the cause of action, its costs and use, and respond appropriately over three years rather than nearly two decades.
We have previously stated as a standard that to be an exception to the prospective application of a new rule of the common law, the “but for” rule applies. That rule is that but for a chance yet determinative circumstance, the cases which seek the exception should have been or *65would likely have been the cases that would have proved the rule. Harmann, 128 Wis. 2d at 386. Theama was already in the court of appeals when the trial court in this case favorably ruled for these plaintiffs and, therefore, the procedural position of the Bell case would not fit the standard.
The result of the majority making this case an exception to the Theama prospective application leaves litigants and attorneys in a quandry as to what we mean when we say a new cause of action in the common law will apply to the case in which it is promulgated and prospectively only as to all other cases. We, therefore, have, as a result of this case, no rule.
Accordingly, I dissent, and would affirm the court of appeals decision.
I am authorized to state that Mr. JUSTICE WILLIAM A. BABLITCH joins this dissenting opinion.
Plaintiffs complained that “but for” the trial court’s favorable finding, they would have been the law-making case and would have enjoyed the prize of being the only case to be allowed a retrospective application of the rule as Theama was. The record does not reflect this, however.
*50The trial judge entered a memorandum decision on February 16, 1983. However, under sec. 809.10, Stats., this decision was not a final order from which either plaintiff or defendant could appeal. Therefore, even if this decision were adverse to the plaintiffs, no appeal could have been commenced until a final order had been entered. Although the plaintiffs “knew” they would win the issue at the trial court, the trial court had not yet effected a change in the law.
The petition for review in Theama was accepted on March 9, 1983, one week before the final order was signed by the trial court on March 16,1983. There was, therefore, no point where the petitioners could have attempted an appeal to this court before Theama, even if the trial court’s ruling had been adverse to them.
In a hearing before the court on October 10, 1983, the Bell family attorney stated:
“Your Honor, we made an appearance before the court on October 3rd, asking the court that the pleadings be amended so that we could introduce new defendants in the cause of action. One of the defendants that we asked the court to allow us to have in this cause of action was Home Mutual Insurance Company. We ask that they be part of the cause of action action for two reasons. Reason No. 1 is that the court had made a ruling that the children are now parties in their own right. Because of this, they have a claim against Home Mutual Insurance Company. A release was signed by both Bernard Bell and Mrs. Bell, who are two of the defendants releasing Home Mutual, but no release was signed by the children because at that time there was no determination as to whether or not the children had a separate and distinct cause of action.
“Subsequent to that time it has been determined that they do have a separate and distinct cause of action, and therefore, on that basis, Your Honor, we ask that Home Mutual be made a party defendant.”
At the same hearing, the attorney for Home Mutual, argued:
“We have a $25,000 policy. That sum has been paid, and as a matter of fact, interestingly enough, the negotiations of the settlement was (sic) made by [the Bell family attorney], and he arranged a settlement where he got the complete policy limits ... It is my claim that at the time it was the idea of the parties that that would be a complete release of all parties, but I suspect that the release does not support that.”
These statements show that the Bell family attorney acting as representative for the parents, negotiated a settlement agreement for the entire $25,000. Then later he had himself appointed guardian ad litem and for the first time brought suit on behalf of the children.
See Footnote 1, supra.
Home Mutual’s policy contained a clause stating:
“We will defend any suit or settle any claim for these damages as we think appropriate, but we will not defend or settle after our limit of liability for this coverage has been reached.”
On the basis of this clause, and the payment of Home’s limits, it was dismissed from defending the suit on October 25,1983. As noted by plaintiffs’ counsel at oral argument, Holup did not file a brief with this court and did not appear at argument.
At the October 13 hearing, the attorney for Home Mutual, expressed his consternation:
“Home has done what every insurance company is urged to do, and when it does, it damns you if you do, and it damns you if you don’t.”
See supra note 1.
See e.g., In Interest of J.V.R., 127 Wis. 2d 192, 202, 378 N.W.2d 266 (1985) states:
“This is the first opportunity this court has had to consider the requirements of sec. 48.18(2), Stats. Accordingly, this ruling shall have only prospective effect, except that this ruling shall apply to this case and to other cases which have not been finalized on the date of the release of this opinion if the juvenile properly objected to the form of the waiver petition at the time of the waiver hearing. It would be contrary to public policy to reopen completed cases for which direct review is no longer available.”
The Bell family attorney in his letter of October 14, 1983, stated:
*58“We object to this Order on the following grounds. Paragraph 2 states that all causes of action of Bernard W. Bell and Sandra Bell vs. Ronald E. Holup shall be dismissed on the merits without costs. There is no cause of action in this case of Bernard W. Bell or Sandra Bell against Ronald E. Holup. Ronald E. Holup was brought into this matter as a 3rd party defendant. Any Order dismissing Ronald E. Holup in this matter is therefore inappropriate.” (Emphasis added).
Fitzgerald, 38 Wis. 2d at 581-82 allowed the wife to proceed under the following circumstances:
(1) Where the wife joins the husband’s claims where the husband has already started a suit.
(2) If the husband’s claim has already gone beyond trial, the wife can only sue loss of consortium other than the loss of the husband’s services.
(3) “In the event the husband has not commenced an action the wife should be allowed to pursue her cause of action individually and assert all of the elements of loss of consortium. The elements of loss of society, affection, and sexual companionship are personal to her and quite apart from a similar claim of the husband. If the wife separately recovers for loss of consortium, including a loss of the services of her husband, he then would be barred from a recovery of this same item in his independent subsequent action.” Id. at 581.
For instance, if two parents were both injured in the same car accident, and they had nine children at the time of the accident who were not involved, 22 claims would be generated from the two physical injuries. Since each child would have a claim for each parent’s consortium, 18 consortium claims would be generated by the children. The parents would have claims for each other’s consortium and *61for their own physical injuries. Under the rules of Fitzgerald v. Meissner & Hicks, Inc., 38 Wis. 2d 571, 575, 157 N.W. 2d 595 (1968), (allowing independent spousal recovery for consortium if the physically injured spouse does not sue, a broadening of the Moran rule), and the majority opinion of this case, (allowing independent unjoined actions for a child’s claim for a negligently injured parent’s consortium), if the claims for physical injury were settled, any of the remaining 20 consortium claims could trigger a full trial on liability issues.
If there is a possibility of negligence by more than one defendant, these 20 consortium claims would be multiplied by the number of defendants. If there were five defendants, as in the current case, 100 claims for consortium would be generated. Any cross claims for contribution would add even more claims. All would arise from one incident. It makes settlement on a piecemeal basis prohibitive.
Under the current formulation, all claims against all possible tortfeasors would have to be settled to avoid a full trial on liability. See generally, Note, Child May Recover for Loss of Parent’s Society and Companionship, 68 Marq. L. Rev. 174, 182 (1984).