Abellon v. Hartford Ins. Co.

Decision Date17 April 1985
Citation212 Cal.Rptr. 852,167 Cal.App.3d 21
CourtCalifornia Court of Appeals
PartiesJeanne Claire B. ABELLON, Petitioner and Appellant, v. HARTFORD INSURANCE COMPANY, Defendant and Respondent. D000971. Civ. 31154.

James A. McIntyre, Virginia R. Gilson, and McInnis, Fitzgerald, Rees, Sharkey & McIntyre, San Diego, for plaintiff and appellant.

Morris, Polich & Purdy, Michael M. Edwards, and Richard R. Sooy, Los Angeles, for defendant and respondent.

STANIFORTH, Associate Justice.

Jeanne Claire B. Abellon (Jeanne) appeals a partial summary judgment in favor of Hartford Insurance Company (Hartford), declaring that under a policy issued by Hartford the total policy limit applicable to the claims of Jeanne and her husband Carlos is the "per person" limit of $250,000.

The fundamental issue posed in this appeal is whether a spouse's claim for loss of consortium is subject to a "per person" liability limitation or a "per occurrence" limitation under a general liability insurance policy.

FACTS

On February 19, 1980, a driver of a tractor-trailer owned by Ron's Delivery Service collided with Carlos' car. As a result of the accident, Carlos lost sight in one eye and suffered severe brain damage. Jeanne suffered the loss of her husband's consortium.

Ron's Delivery Service was insured under a truck liability policy issued by Hartford. Carlos brought suit against Ron's Delivery Service for the personal injuries he sustained. Jeanne sought damages for loss of services and loss of consortium. A stipulated judgment between the Abellons and Ron's Delivery Service was entered in favor of Carlos in the amount of $750,000 and in favor of Jeanne in the amount of $250,000.

Hartford paid the $250,000 policy limits on Carlos' claim but refused to pay Jeanne's $250,000 claim on two grounds: (1) as a matter of law Hartford's liability under the terms of the insurance policy was limited to $250,000, which had already been paid; and (2) the stipulated judgment in favor of Jeanne was not binding upon Hartford. Hartford moved for summary judgment in this matter and the lower court granted partial summary judgment on the first issue submitted. The court dismissed the action and Jeanne appeals.

DISCUSSION
I

The trial court's findings of fact are undisputed, including the finding Jeanne suffered a loss of consortium as a consequence of the serious injuries her husband Carlos sustained. The sole question before this court is whether Jeanne's injury is an injury subject to the "per person" limitation or the "per occurrence" limitation of the policy.

The relevant policy language provides:

"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.' "

The policy limits for bodily injury are $250,000 for each person and $500,000 for each occurrence.

Jeanne contends her claim for loss of consortium is a separate bodily injury caused by the accident which is subject to the $500,000 "per occurrence" limit. On the other hand, Hartford asserts Jeanne's claim is governed by the same "per person" limit applicable to her husband. Hartford claims that upon Carlos' receipt of the $250,000 "per person" policy limit, all claims were exhausted and the insurance company was under no obligation to pay Jeanne's claim.

II

Hartford urges Jeanne's loss of consortium is derived from the injuries Carlos sustained and her consequential damages are therefore subject to the "per person" limitation. Hartford's contention has been negated by the California Supreme Court in Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669. There the court acknowledged loss of companionship, emotional support, love, felicity and sexual relations as real and direct injuries to the claimant. (Id., at p. 400, 115 Cal.Rptr. 765, 525 P.2d 669.) The court stressed the personal and direct injury inflicted upon a wife suffering loss of her husband's consortium, stating:

" 'There certainly is no doubt today that the wife of a husband who has been incapacitated suffers great pain and endures constant anguish, particularly if she is denied the opportunity to have children.... When a person is injured either intentionally or negligently, to the extent that such person can no longer be a companion and is no longer capable of giving love, affection, society, comfort and sexual relations to his or her spouse, that spouse has suffered a direct and real personal loss.' " (Ibid.)

Conforming to the holding in Rodriguez, in Lantis v. Condon, 95 Cal.App.3d 152, 157, 157 Cal.Rptr. 22 (hg. den.), the appeal court stated:

"Although the wife's cause of action 'arises' from bodily injury to her husband [citation], the injury suffered is personal to the wife [citation]."

The court concluded an injury to one's psychological and emotional state should be treated no differently than an injury to one's physical well-being. (Id., at p. 157, 157 Cal.Rptr. 22.)

"Loss of her husband's consortium impairs a wife's interests which are wholly separate and distinct from that of her husband: ' "... the wife's loss is just as real as it is distinct. She can no longer enjoy her legally sanctioned and morally proper privilege of copulation or procreation, and is otherwise deprived of her full enjoyment of her marital state. These are her rights, not his." ' (Rodriguez, supra, 12 Cal.3d at p. 405 [115 Cal.Rptr. 765, 525 P.2d 669], quoting from Yonner v. Adams (1961) 53 Del. 229 [167 A.2d 717, 728], italics original.) Thus, the injury incurred can neither be said to have been 'parasitic' upon the husband's cause of action nor can it be properly characterized as an injury to the marital unit as a whole. Rather, it is comprised of Anne's own physical, psychological and emotional pain and anguish which results when her husband is negligently injured to the extent that he is no longer capable of providing the love, affection, companionship, comfort or sexual relations concomitant with a normal married life. (See Rodriguez, supra, 12 Cal.3d at p. 400 [115 Cal.Rptr. 765, 525 P.2d 669], quoting from Clouston v. Remlinger Oldsmobile Cadillac, Inc. (1970) 22 Ohio St.2d 65 [51 Ohio Ops.2d 96, 258 N.E.2d 230, 235].) From the vantage point of the negligent defendant, Anne is simply a foreseeable plaintiff to whom he owes a separate duty of care. (See Rodriguez, supra, at pp. 399-400 [115 Cal.Rptr. 765, 525 P.2d 669].) If the injury she suffered were a broken leg while riding in a vehicle driven by her contributorily negligent husband, there would be no question but that his contributory negligence would not destroy or mitigate her right to full recovery.

(Wilkins v. Sawyer (1965) 232 Cal.App.2d 458, 462 [42 Cal.Rptr. 817]....) There is no reason why injury to her psychological and emotional state should be treated any differently than injury to her physical well being. (Cf. Macon v. Seaward Const. Co., Inc., supra, 555 F.2d 1, 2.) The law protects equally her sex life and her leg." (Lantis v. Condon, supra, 95 Cal.App.3d 152, 157-158, 157 Cal.Rptr. 22, italics added.)

Authorizing coverage and recovery by more than one injured person is, patently, the prime reason the "per occurrence" paragraph is placed in the policy. To merge Jeanne's injury with that of her husband under the "per person" limitation would not "achieve coverage for the losses to which the policy relates." (Employers Cas. Ins. Co. v. Foust, 29 Cal.App.3d 382, 386, 105 Cal.Rptr. 505.) Such an interpretation would defeat the public policy of this state as expressed by the Supreme Court in Rodriguez. Loss of consortium is a distinct and individual injury. By merging Jeanne's injury with that of her husband, her injury, in effect, becomes derivative and noncompensable under the terms of the insurance contract, thus effectively negating public policy.

The reasoning of Rodriguez and Lantis supports the inevitable conclusion Jeanne has suffered an independent, nonparasitic personal injury as a result of an automobile accident negligently caused by Hartford's insured. She is a second person injured by the accident.

III

Did Jeanne sustain a "bodily injury"? In the final analysis, this is a question of fact. It involves a medical or psychological problem of proof rather than purely a question of law. In Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 929, 167 Cal.Rptr. 831, 616 P.2d 813, the Supreme Court reasoned:

"In our view the attempted distinction between physical and psychological injury merely clouds the issue. The essential question is one of proof; whether the plaintiff has suffered a serious and compensable injury should not turn on this artificial and often arbitrary classification scheme."

But because of a definitional morass surrounding the use of the words "physical" and "mental," it is often difficult to accurately predict what types of injuries will be considered worthy of compensation. "Even doctors have a difficult time distinguishing between 'mental' and 'physical,' because every emotional disturbance has a physical aspect and every physical disturbance has an emotional aspect. [Citation.]" (Comment, Negligently Inflicted Mental Distress: The Case For An Independent Tort (1971) 59 Geo.L.J. 1237, 1241, fn. 24.) 1 Modern California case law addressing this issue as a legal proposition has determined (1) bodily injury can and does result from emotional distress and (2) the injury so sustained may be compensable.

In Employers Cas. Ins. Co. v. Foust, supra, 29 Cal.App.3d 382, 385, 105 Cal.Rptr. 505, the court held:

"The sole question before us involves the proper compass of the term ...

To continue reading

Request your trial
52 cases
  • SL Industries, Inc. v. American Motorists Ins. Co.
    • United States
    • New Jersey Supreme Court
    • 17 Junio 1992
    ...symptoms justifies the conclusion that both mental and physical injuries are bodily injuries. See Abellon v. Hartford Ins. Co., 167 Cal.App.3d 21, 212 Cal.Rptr. 852, 855-57 (1985); Levy v. Duclaux, 324 So.2d 1, 10 (La.Ct.App. 1975) NPS Corp., supra, 213 N.J.Super. at 551, 517 A.2d 1211. We ......
  • Aim Insurance Co. v. Culcasi
    • United States
    • California Court of Appeals Court of Appeals
    • 10 Abril 1991
    ...harm caused by emotional distress is nevertheless "bodily injury." However, the court cited only two cases: Abellon v. Hartford Ins. Co. (1985) 167 Cal.App.3d 21, 212 Cal.Rptr. 852 and Agarwal v. Johnson (1979) 25 Cal.3d 932, 160 Cal.Rptr. 141, 603 P.2d 58. Neither remotely supports the cou......
  • Molski v. Gleich
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 10 Octubre 2002
    ...to California courts, claims for emotional distress typically "involve" a physical component. See, e.g., Abellon v. Hartford Ins. Co., 167 Cal. App.3d 21, 212 Cal.Rptr. 852, 855 (1985) ("Even doctors have a difficult time distinguishing between `mental' and `physical,' because every emotion......
  • Chatton v. National Union Fire Ins. Co.
    • United States
    • California Court of Appeals Court of Appeals
    • 28 Octubre 1992
    ...on Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928, 167 Cal.Rptr. 831, 616 P.2d 813 and Abellon v. Hartford Ins. Co. (1985) 167 Cal.App.3d 21, 26, 212 Cal.Rptr. 852, the trial court held that "Emotional Distress is included in the [CGL] policy definition of bodily injury." N......
  • Request a trial to view additional results
1 books & journal articles
  • Insurance Law
    • United States
    • California Lawyers Association California Litigation Review (CLA) No. 2018, 2018
    • Invalid date
    ...States Automobile Assn. v. Warner (1976) 64 Cal.App.3d 957, 963.27. Ibid. quoting Warner, supra, 64 Cal.App.3d at p. 964.28. (1985) 167 Cal.App.3d 21.29. Mercury Ins. Co. v. Ayala (2004) 116 Cal.App.4th4th 1198; Mid-Century Ins. Co. v. Bash (1989) 211 Cal.App.3d 431; Hauser v. State Farm Mu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT