Burr v. Pemco Mutual Insurance Company, No. 55006-3-I (WA 8/29/2005)

• Decision Date: 29 August 2005
• Docket Number: No. 55006-3-I,55006-3-I
• Court: Washington Supreme Court
• Parties: RUTH BURR, Appellant, v. PEMCO MUTUAL INSURANCE COMPANY, a domestic corporation; PROGRESSIVE NORTHERN INSURANCE COMPANY, a foreign corporation, Respondents.

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Unpublished Opinion

RUTH BURR, Appellant, v. PEMCO MUTUAL INSURANCE COMPANY, a domestic corporation; PROGRESSIVE NORTHERN INSURANCE COMPANY, a foreign corporation, Respondents.

No. 55006-3-I

The Court of Appeals of Washington, Division One.

Filed: August 29, 2005

Appeal from Superior Court of King County. Docket No. 03-2-12137-1. Judgment or order under review. Date filed: 09/24/2004. Judge signing: Hon. Jeffrey M Ramsdell.

Counsel for Appellant(s), Garth L. Jones, Stritmatter Whelan Withey ET AL, 413 8th St, Hoquiam, WA 98550-3607.

Ray W Kahler, Stritmatter Kessler Whelan ET AL, 413 8th St, Hoquiam, WA 98550-3607.

Karen Kathryn Koehler, Stritmatter Kessler Whelan et al, 200 2nd Ave W, Seattle, WA 98119-4204.

Counsel for Respondent(s), Deborah Lynn Carstens, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.

Douglas Fredrick Foley, Bullivant Houser Bailey PC, 805 Broadway St Ste 400, Vancouver, WA 98660-3310.

Jerret E. Sale, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.

ELLINGTON, A.C.J.

Ruth Burr's mother, Sheila Greytak, was run down and killed as she attempted to cross a street near her house. She was in a crosswalk, and the driver admitted liability. The driver's insurer paid its policy limits of $100,000 to the estate. Burr contends her loss of consortium claim triggers a separate $100,000 limit. We disagree and affirm the trial court's dismissal.

FACTS

After Sheila Greytak was killed by a car while she was in a crosswalk, the driver, Elise Hofstad, admitted liability. Hofstad was covered under an insurance policy issued by Progressive Northern Insurance Company. The limits of the policy were $100,000 for bodily injury for each person, and $300,000 for each accident.

The policy defined `bodily injury' as `bodily harm, sickness, or disease, including death that results from bodily harm, sickness, or disease.' Clerk's Papers at 65. The limits of liability section stated that `the amount shown for `each person' is the most we will pay for all damages due to a bodily injury to one (1) person.' Clerk's Papers at 68. The policy defined the bodily injury limit for `each person' to include the aggregate of claims made for such bodily injury and claims derived from such bodily injury, including, but not limited to, loss of society, loss of companionship, loss of services, loss of consortium, and wrongful death.

Id. (emphasis added).

Progressive paid its $100,000 limits to Greytak's estate. Thereafter, Burr filed a complaint against Progressive seeking declaratory relief and damages. She maintained that her claims for loss of society, companionship, services, and consortium were separate from the claims of the estate, triggering a separate $100,000 `each person' limit. Burr moved for summary judgment, and Progressive moved for judgment on the pleadings under CR 12(b) (6). The trial court granted Progressive's motion for judgment on the pleadings and denied Burr's motion for summary judgment.¹ This appeal followed.

DISCUSSION

Statutes in Washington create separate causes of action for wrongful death and survival claims. See RCW 4.20.010, .020 (wrongful death); RCW 4.20.046, .060 (survival); see also Otani v. Broudy, 151 Wn.2d 750, 755, 92 P.3d 192 (2004) (`wrongful death statutes govern postdeath damages of the deceased and the survival statutes govern predeath damages'). Loss of consortium claims are separate and not derivative. Green v. American Pharmaceutical Co., 136 Wn.2d 87, 101, 960 P.2d 912 (1998). Burr therefore contends that Progressive may not define loss of consortium claims as `derived from such bodily injury,' but must recognize her claim as a separate injury with its own $100,000 limit.

Progressive agrees that wrongful death and survival claims are independent legal claims, but asserts that, however such claims are classified for other purposes, an insurance policy may treat all claims arising out of the bodily injury of one person as falling within a single coverage limit. Grange Insurance Association v. Morgavi, 51 Wn. App. 375, 753 P.2d 999 (1988) is directly on point. William Morgavi had a claim for loss of consortium because of injury to his wife. A Grange insurance policy was available to indemnify the tortfeasor. The policy provided bodily injury coverage of up to $50,000 per person and $100,000 per occurrence. Grange offered $50,000 to the Morgavis for all of their damages and sought a declaratory judgment that it had no further exposure. The trial court ruled against Grange, but the appeals court reversed, holding that, where an insurance policy so provides, recovery for a loss of consortium claim may be limited to the single person limit available for the injuries to the spouse:

It has long been settled in this state that, absent different policy provisions, insurance indemnity for a claim for loss of consortium is restricted to the same single person limit of the policy available to indemnify for the spouse's injuries that occasioned the claim.

Morgavi, 51 Wn. App. at 376.

The Morgavi court considered whether cases holding loss of consortium claims to be independent and not derivative prevented insurers from confining recovery for loss of consortium to the limit for each injured person. The court held that the independent nature of the consortium claim for third party lawsuit purposes did not control an insurer's definition of a covered loss as including all injuries flowing from the bodily injury of one person:

Although both Reichelt and Lund held that loss of consortium was the basis for an independent claim on the part of the person suffering the loss, neither purported to alter settled insurance law. Christie, decided by the same court that decided Zoda, also dealt with the characteristics of a claim for loss of consortium. It distinguished Zoda by pointing out the difference between questions having to do with the claim, and those concerning insurance.

Id. at 377 (discussing Reichelt v. Johns Manville Corp., 107 Wn.2d 761, 733 P.2d 530 (1987), Lund v. Caple, 100 Wn.2d 739, 675 P.2d 226 (1984), Christie v. Maxwell, 40 Wn. App. 40, 696 P.2d 1256 (1985), and Zoda v. Mutual of Enumclaw Ins. Co., 38 Wn. App. 98, 684 P.2d 91 (1984)).

Morgavi thus controls the issue here. The fact that loss of consortium claims may provide the basis for an independent lawsuit does not prevent an insurer from treating them as derivative of bodily injury for purposes of setting its policy limits. Here, an average person purchasing insurance, giving a fair, reasonable, and sensible construction to Progressive's policy, would conclude that one $100,000 limit of coverage applied to all claims related to Burr's mother's death. See ...