Woodland Hills personal injury attorney often has the unenviable task of explaining to clients that the courts recognize a spouse’s “loss of consortium” claim as a separate and independent tort. However, for insurance purposes, a loss of consortium claim is considered “derivative.” Therefore, under California Insurance Law, the “Per Person” limit applies—- not the “Per Accident” limit!
In the recent case of Jones v. IDS Property Casualty Ins. Co. (3rd Dist., 9-25-18), the Court examined the issue: “When a wife sues for loss of consortium after her husband is seriously injured in an automobile accident that is the defendant’s fault, is her claim subject to the same per person limit of the defendant’s insurance policy as her husband’s claim for bodily injury?” There was an applicable liability policy limit of $250,000 per person, and $500,000 per occurrence.
In that case, the policy language read: “The bodily injury liability limits for each person is the maximum we will pay as damages for bodily injury, including damages for care and loss of service, to one person per occurrence.” As the Court explained, the language made clear that the damages for bodily injury include loss of consortium. Further, the policy language provided that so long as only one person suffered bodily injury, the “Per Person” limit applied.
In Jones, the judgment awarded Mark Jones $1,350,000 and his wife Melanie Jones $150,000 for loss of consortium. The insurer contended that only the $250,000 limit applied. The plaintiffs argued that the $500,000 per occurrence limit applied and that they should receive the $250,000 plus the $150,000.
The insurer moved for summary judgment and argued that a single per person limit applied to both Mark’s injuries and Melanie’s loss of consortium resulting therefrom. It relied on United Services Automobile Assn. v. Warner (1976) 64 Cal.App.3d 957 (Warner) and Mercury Ins. Co. v. Ayala (2004) 116 Cal.App.4th 1198 (Ayala). Both cases held that a spouse’s claim for loss of consortium was subject to the same per person policy limit as the injured spouse’s damages. The insurer distinguished Abellon v. Hartford Ins. Co. (1985) 167 Cal.App.3d 21 (Abellon), in which a divided panel of the Fourth Appellate District, Division 1 reached a different result. The trial court denied the motion, finding that Abellon controlled—not Warner or Ayala.
The Rodriguez v. Bethlehem Steel Corp. Case
The Plaintiffs argued that since loss of consortium is an independent tort and not a derivative claim (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382), it is subject to a separate per person limit of the policy unless the policy clearly specifies that loss of consortium damages is aggregated with those of the injured spouse. They contended that the defendant’s policy did not contain the necessary language of aggregation.
The United Services Automobile Assn. v. Warner
In the Warner case, the limitation of liability portion of the policy read: “ ‘The limit of bodily injury liability stated in the declarations as applicable to “each person” is the limit of the company’s liability for all damages, including damages for care and loss of services, arising out of bodily injury sustained by one person as the result of any one occurrence; the limit of such liability stated in the declarations as applicable to “each occurrence” is, subject to the above provision respecting each person, the total limit of the company’s liability for all such damages arising out of bodily injury sustained by two or more persons as the result of any one occurrence.” The court found this language “clear and free from ambiguity. The ‘per person’ limit applies to ‘all damages, including damages for care and loss of services, arising out of bodily injury sustained by one person . . . .’ ” (Id. at p. 962.) The court found the term “loss of services” covered loss of consortium. “Loss of consortium is not only similar in kind to damage for loss of services in that it arises out of the bodily injury sustained by the injured spouse, but actually includes loss of services as one of its elements.” (Id.)
The Warner court noted that while the right to recover for loss of consortium had only recently been recognized, “the California courts have uniformly held that the ‘per person’ limit applies to claims for loss of services and other consequential damages to a person related to the person suffering bodily injury in an accident.” (Warner, supra, 64 Cal.App.3d at p. 962.) “While the policy language in the cited cases was not always identical with the language used in appellant’s policy, . . . the principle consistently followed has been that where one person was injured or killed in the accident or occurrence, the single injury limit applied, regardless of the number of persons damaged as a result of that injury.” (Id. at p. 963.) “The cause of action for loss of consortium does not arise out of a bodily injury to the spouse suffering the loss; it arises out of the bodily injury to the spouse who can no longer perform the spousal functions. It is the loss of conjugal fellowship, affection, society and companionship which gives rise to the cause of action.” (Id. at p. 964.)
The Abellon v. Hartford Ins. Co. Case
In Abellon, the majority held that the wife’s loss of consortium claim was a separate bodily injury and subject to the per occurrence limits of the policy. The policy language provided: “‘1. The most we will pay for all damages resulting from bodily injury to any one person caused by any one accident is the limit of Bodily Injury Liability shown in this endorsement for “each person.” 2. Subject to the limit for “each person,” the most we will pay for all damages resulting from bodily injury caused by any one accident is the limit of Bodily Injury Liability shown in this endorsement for “each accident.”’ ” (Id. at pp. 24-25.) The policy limits for bodily injury were $250,000 for each person and $500,000 for each occurrence. (Id. at p. 25.) The majority found the loss of consortium claim was a separate injury from that of the injured spouse. (Id.) “If [the insurer] wants to limit liability in accidents where loss of consortium damages are sought, it should expressly provide that such damages are subject to the ‘per person’ limitation.” (Id. at p. 33.)
Conclusion
Although Plaintiffs interpretation was a nice try in the Jones case, it is now accepted that the policy language at issue and in most liability policies sufficiently “aggregate” the claims so that the “Per Claim” limit applies rather than the larger “Per Accident” or “Per Occurrence” limit for loss of consortium claims. It is recommended that in every serious accident claim, the plaintiffs consult with an experienced personal injury attorney with an expertise in insurance coverage. It is absolutely critical to evaluate the “aggregate” language in the policy before ruling out the larger “Per Accident” limits.
