Bender v. Peay

• Decision Date: 05 April 1982
• Docket Number: No. 1-481,1-481
• Citation: 433 N.E.2d 788
• Parties: Alan D. BENDER, Ivan Bender, Defendants-Appellants, v. Jerry PEAY, Plaintiff-Appellee. A 154.
• Court: Indiana Appellate Court

Page 788

433 N.E.2d 788

Alan D. BENDER, Ivan Bender, Defendants-Appellants, v. Jerry PEAY, Plaintiff-Appellee.

No. 1-481 A 154.

Court of Appeals of Indiana, First District.

April 5, 1982.

George A. Porch, Bamberger, Foreman, Oswald & Hahn, Evansville, for defendants-appellants.

John A. Hamilton, David A. Bunner, Bunner, John & Heathcotte, Evansville, for plaintiff-appellee.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

Alan and Ivan Bender appeal from the Warrick Superior Court's denial of their motion for summary judgment on Jerry Peay's claim for loss of consortium of his wife, her medical expenses, and his lost earnings occasioned by her injuries. We reverse.

STATEMENT OF THE FACTS

On January 12, 1978, Barbara Peay, Jerry Peay's wife, was driving a 1969 Cadillac automobile in a westerly direction on a snow-covered county road in Posey County, Indiana. Alan Bender was driving a pick up truck which belonged to his father, Ivan Bender, in an easterly direction on the same road. The vehicles collided head-on near the crest of a small hill. Mrs. Peay sustained injuries in the accident which required hospitalization and surgery.

Mrs. Peay sued Alan and Ivan Bender for her personal injuries, medical expenses, and property damage. This suit was tried in the Vanderburgh Circuit Court and judgment was entered against Mrs. Peay on August 31, 1979. There was no appeal from that judgment.

Jerry Peay filed suit against Alan and Ivan Bender on December 5, 1979. In Count I of his complaint, which is the only count involved in this appeal, Peay sought damages for the loss of consortium of his wife resulting from her injuries received in the January 27, 1978, automobile collision, his wife's medical expenses, and his own lost wages allegedly resulting from her injuries. Alan and Ivan Bender moved for summary judgment on Count I of the complaint contending the judgment of the Vanderburgh Circuit Court in Mrs. Peay's action was dispositive of Count I. The supporting affidavit filed with the motion for summary judgment submitted to the Warrick Superior Court the entire certified record of the Vanderburgh Circuit Court in Cause No. 5780 in Mrs. Peay's personal injury claim. The record of Mrs. Peay's suit was made a part of the record in the case at bar. A motion in opposition to the motion for summary judgment was filed by Jerry Peay. The trial court denied summary judgment and certified the issue for interlocutory appeal.

ISSUE

We have restated the sole issue raised by the Benders in this appeal as follows:

Whether a husband may maintain a separate action for loss of his wife's consortium after the wife's action for her injuries resulted in a judgment adverse to her claim.

DISCUSSION AND DECISION

The Benders contend first that Jerry Peay's claim is derived from his wife's personal injury claim and thus was extinguished by the termination of her claim in their favor and second that even if Mr. Peay's claim is not derivative, the doctrine of collateral estoppel bars his claim. Judge Neal in his dissenting opinion addresses only the second contention raised by the Benders. Although we do not quarrel with his accurate discussion of the general rules of res judicata, we do not believe it is necessary to apply those rules to the present case since we find the prior adjudication of Mrs. Peay's claim precludes Mr. Peay's claim for loss of consortium.

In the present case, Mrs. Peay fully litigated her claim for damages for personal injuries against the Benders. That action resulted in a jury verdict adverse to her claim. A general verdict is a finding in favor of the prevailing party on all the material issues in the case. Harker v. Gruhl, (1916) 62 Ind.App. 177, 111 N.E. 457, trans. denied; 21 I.L.E., Negligence § 221 (1959). "A general verdict against a party is a finding against him upon all issues of which he assumed the affirmative." Scoopmire v. Taflinger, (1944) 114 Ind.App. 419, 430-31, 52 N.E.2d 728. Further, it has been held in negligence actions that a general verdict for the defendant amounts to a finding that the defendant was free from negligence or that the plaintiff was guilty of contributory negligence. Siivonen v. City of Oneida, (1970) 33 A.D.2d 934, 306 N.Y.S.2d 278; Snider v. Jennings, (1968) 11 Mich.App. 562, 161 N.W.2d 594; Jones v. Kline, (1955) Ohio App., 73 Ohio L.Abs. 354, 137 N.E.2d 611. Also, it has been held that a general verdict in favor of the defendant imports that all issues submitted to the jury were found in favor of the defendant. LeBlanc v. Bray, (1975) 168 Conn. 92, 357 A.2d 926. Thus, the verdict in favor of the Benders in Mrs. Peay's case established that the Benders were not liable for her injuries. If Benders were not liable for Mrs. Peay's injuries, how can they be liable to Peay for loss of his wife's consortium?

Our conclusion that Mr. Peay's loss of consortium claim is precluded by the adjudication of Mrs. Peay's claim is derived from the nature of a loss of consortium claim. In Arthur v. Arthur, (1973) 156 Ind.App. 405, 296 N.E.2d 912, trans. den., this court recognized the derivative nature of a loss of consortium claim. The plaintiff-wife in Arthur brought a loss of consortium claim against Ira E. Arthur. The plaintiff's husband, Lemuel, had been injured while he and Ira were unloading a load of logs from Ira's truck. Lemuel and Ira were hauling the logs for Kenneth Welty. Lemuel filed a workmen's compensation claim for his injuries against Welty. The Industrial Board approved an agreement between the parties that Lemuel was to receive compensation payments. Subsequently the plaintiff filed her action against Ira. Ira's motion for summary judgment was granted by the trial court, and the plaintiff appealed. On appeal, Chief Judge Hoffman recognized the derivative nature of the plaintiff's claim and framed the issue before the court as follows:

"However, a cause of action for loss of consortium derives its viability from the validity of the claim of the injured spouse against the wrongdoer. Where, for example, the claim of the injured spouse against the alleged tort-feasor has been abrogated by statute, the right of the other spouse to recover for loss of consortium cannot exist. Stainbrook v. Johnson Co. F. Bur. etc., et al. (1954), 125 Ind.App. 487, 122 N.E.2d 884 (transfer denied). Thus, the crucial issue in the instant case is whether Lemuel has a valid cause of action against Ira."

Id., 156 Ind.App. at 406, 296 N.E.2d at 913. Thus, this court determined whether Lemuel had a valid claim against Ira, for if he did not have such a claim his wife would not have a claim for loss of consortium. It was found in Arthur that a material issue of fact as to whether Lemuel had a valid claim against Ira existed and thus the entry of summary judgment was reversed.

The dissent in contending that Arthur v. Arthur, supra, is not controlling in the instant case states at 796:

"The issue was whether the plaintiff's husband had a valid cause of action against the fellow employee who allegedly caused his injury; if not the plaintiff's loss of consortium action was likewise invalid. This conclusion results from the fact that the remedy provided by the Workmen's Compensation statute is exclusive of all others, even those belonging to dependents and next of kin. Ind.Code 22-3-2-6. The issue was whether the plaintiff's claim was abrogated by statute, not whether it was foreclosed by res judicata."

A close examination of Arthur shows this court did not hold the plaintiff's loss of consortium claim to be abrogated by the predecessor of Ind.Code 22-3-2-6. ¹ Rather, the court determined whether the injured spouse's claim was abrogated by statute. If it was so abrogated, the loss of consortium claim would be invalid because of its derivative nature.

The fact that a loss of consortium claim derives its viability from the injured spouse's claim has been further exemplified in the recent case of Clouse v. Fielder, (1982) Ind.App., 431 N.E.2d 148. In Clouse, the husband's and wife's claims were jointly tried. The jury returned a verdict for the wife on her personal injury claim but failed to return a verdict for the husband on his claim for loss of consortium. The trial judge treated the non-verdict as an adverse verdict and entered judgment against the husband. After discussing the derivative nature of a loss of consortium claim, we reversed and remanded the case for a new trial only on the issue of the husband's damages saying at 160:

"In order for James to recover he must prove both liability and damages. In this case liability of Clouse for Georgia's injuries was established when the jury rendered a verdict for Georgia. The uncontradicted evidence in the record shows that those injuries caused James to lose to some extent his wife's services. Thus, when liability has already been determined and the evidence of loss of services or consortium is uncontradicted, a new trial for damages only will be required." (Citations omitted.)

See also, Lee v. Lafayette Home Hospital, Inc., (1980) Ind.App., 410 N.E.2d 1319, trans. denied (holding that the parents' action for loss of services of and medical expenses for their child, allegedly resulting from medical malpractice on the child, was derived from the child's malpractice claim and, therefore, subject to the provisions of the Indiana Medical Malpractice Act).

Since a loss of consortium claim derives its viability from the injured spouse's claim for injuries, we fail totally to understand how a defendant could be liable to one spouse on a loss of consortium claim when it has already been determined he or she did not cause the other spouse's injuries. To hold otherwise by applying the rules of res judicata and indulging in hair splitting technicalities, such as failure of the defendants to seek joinder of the claims or technical definitions of "privity," is to promote form over substance. Common sense and logic demand a holding which...