Federal Kemper Ins. Co. v. Karlet

• Decision Date: 25 February 1993
• Docket Number: No. 21312,21312
• Citation: 189 W.Va. 79,428 S.E.2d 60
• Parties: FEDERAL KEMPER INSURANCE COMPANY, Plaintiff, v. Herbert J. KARLET, Luanna Sue Karlet, Brian Karlet, Kelli Michelle Karlet, Charlotte Ball, as Administratrix of the Estate of Louia H. Martin and Charles Daniel Ball, Defendants.
• Court: West Virginia Supreme Court

Page 60

428 S.E.2d 60

189 W.Va. 79

FEDERAL KEMPER INSURANCE COMPANY, Plaintiff, v. Herbert J. KARLET, Luanna Sue Karlet, Brian Karlet, Kelli

Michelle Karlet, Charlotte Ball, as Administratrix

of the Estate of Louia H. Martin and

Charles Daniel Ball, Defendants.

No. 21312.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 13, 1993.

Decided Feb. 25, 1993.

Syllabus by the Court

When a person is bodily injured in an automobile accident, an individual other than the bodily-injured person may also suffer damages as a result of such accident through loss of consortium. The claim for loss of consortium by an individual other than the one suffering bodily injury as a result of an automobile accident is generally recognized as arising out of the claim for damages of the bodily-injured person. As a result, the claim of the bodily-injured person and the claim for loss of consortium are covered within the same per person limit of liability provisions under the automobile insurance policy. More specifically, when the per person limit of liability in a policy provides coverage for "all damages arising out of bodily injury sustained by one person as a result of one accident," both the claim of the bodily injured person and the claim for loss of consortium are covered within the same per person limit of liability, and recovery for both claims may not exceed the fixed amount of the maximum limit of damages under the per person limit of liability. If, however, there is language in the policy which includes loss of consortium as a separate bodily injury, such loss of consortium claim is entitled to a separate per person limit of liability.

R. Carter Elkins, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, for plaintiff.

Mark H. Hayes, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, for defendants.

James C. Peterson, West Virginia Trial Lawyers Ass'n, amicus curiae committee.

McHUGH, Justice:

This matter is before the Court upon certified question by the United States District Court for the Southern District of West Virginia for clarification as to whether minor children claiming loss of parental consortium are treated as separate injured persons, subject to separate "per person" and "per occurrence" insurance liability limits, based on language in an automobile insurance policy. ¹

I

Charles Daniel Ball and Herbert J. Karlet were the drivers of two vehicles involved in a collision in Wayne County, West Virginia, in the fall of 1990. Mr. Karlet's wife, Luanna, and son, Brian, were passengers in the vehicle he was driving, and all three of them were injured as a result of the accident. ² Mr. and Mrs. Karlet also have a daughter, Kelli, who was not a passenger in the vehicle.

The parties represent to this Court that Mr. Ball was the party at fault in the accident. The vehicle driven by Mr. Ball was owned by his grandmother, Louia H. Martin, ³ and was insured by Federal Kemper. The insurance policy issued by Federal Kemper to Mrs. Martin provides liability coverage limits of $100,000 per person and $300,000 per occurrence, and was in effect on the date of the accident.

The Karlets' children filed a loss of parental consortium claim for injury to the parent-child relationship as a result of the accident. ⁴ Due to the parties' dispute over the loss of parental consortium claim, Federal Kemper filed a declaratory judgment action in the federal district court seeking a declaration from the court that the loss of parental consortium claim asserted by the Karlets' children was included with the each person liability limits applicable to each of their injured parents. ⁵

The district court declined to render a declaratory judgment on the issue presented by Federal Kemper, and instead certified the following question to this Court: "Are minor children claiming loss of parental consortium treated as separate injured persons, subject to separate per person and per occurrence insurance liability limits, based on the language of Federal Kemper's insurance policy?" ⁶

II

In response to the certified question we must determine whether the minor children's claims of loss of parental consortium should be treated as separate bodily injuries under the per person limits of liability under the policy. Federal Kemper maintains that the loss of consortium claim asserted by the Karlets' children arises from the bodily injuries suffered by their parents in the accident, and that any claim they may have for loss of parental consortium is subject to the $100,000 per person limits of liability applicable to their parents' bodily injury claims. The Karlets contend that a child's claim for loss of parental consortium is a separate claim entitled to an independent per person recovery under the automobile insurance policy.

The insurance policy at issue in the present case provides bodily injury liability coverage of $100,000 each person, $300,000 each occurrence. The insurance policy also contains specific provisions relating to those limits of liability. The policy at issue expressly provides that "[t]he limit of liability shown in the Declarations for the coverage is our maximum limit of liability for each person injured in any one accident." More important, however, to the particular facts of this case, is the language in this policy which appears under the "LIMIT OF LIABILITY" provision, and states:

The limit of liability shown in the Declarations applicable to 'each person' is our maximum limit for all damages arising out of bodily injury sustained by one person as a result of any one accident. The limit of liability shown in the Declarations applicable to 'each occurrence' is our maximum limit for all damages arising out of bodily injury sustained by two or more persons as a result of any one accident.

One of the issues the certified question before us essentially raises is whether the minor children's claims for loss of parental consortium fall within the definition of bodily injury under the policy, and therefore would be subject to separate per person limits of liability. The insurance policy defines bodily injury as follows: " 'Bodily injury ' means bodily harm, sickness or disease, including death that results." The definition of bodily injury under this policy clearly does not include loss of consortium as a separate bodily injury.

The issue of whether minor children claiming loss of parental consortium are treated as separate injured persons subject to separate per person and per occurrence limits of liability is one of first impression for this Court. ⁷ In the cases we have reviewed from other jurisdictions, the insurance policy language relating to the per person limitation and defining bodily injury ⁸ varies to some degree. Yet, it appears to be fairly well-settled in other jurisdictions that where there is one person bodily-injured in an automobile accident and the automobile insurance policy contains a per person limitation which covers all damages arising out of bodily injury sustained by one person, the loss of consortium claim by either the injured person's spouse or child, who was not physically injured in the accident, is recognized as arising out of the claim of the bodily-injured person and subject to the per person limitation. See Weekley v. State Farm Mutual Automobile Ins. Co., 537 So.2d 477 (Ala.1989); Stillman v. American Family Ins., 162 Ariz. 594, 785 P.2d 114 (Ct.App.1990); Hauser v. State Farm Mutual Automobile Ins. Co., 205 Cal.App.3d 843, 252 Cal.Rptr. 569 (1988); Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 524 A.2d 641 (1987); Creamer v. State Farm Mutual Automobile Ins. Co., 161 Ill.App.3d 223, 514 N.E.2d 214 (1987); Lepic v. Iowa Mutual Ins. Co., 402 N.W.2d 758 (Iowa 1987); Gillchrest v. Brown, 532 A.2d 692 (Me.1987); Santos v. Lumbermens Mutual Casualty Co., 408 Mass. 70, 556 N.E.2d 983 (1990); Bain v. Gleason, 223 Mont. 442, 726 P.2d 1153 (1986); Allstate Insurance Co. v. Pogorilich, 605 A.2d 1318 (R.I.1992); Richie v. American Family Mutual Ins. Co., 140 Wis.2d 51, 409 N.W.2d 146 (Wis.App.1987). ⁹ See also 8A John Alan Appleman,Insurance Law and Practice § 4893 (1981); Jane M. Draper, Annotation, Consortium Claim of Spouse, Parent or Child of Accident Victim as Within Extended "Per Accident" Coverage Rather than "Per Person" Coverage of Automobile Liability Policy, 46 A.L.R. 4th 735 (1986 & Supp.1992); Annotation, Construction and Application of Provision in Liability Policy Limiting the Amount of Insurer's Liability to One Person, 13 A.L.R. 3rd 1228 (1967 & Supp.1992). Contra Allstate Ins. Co. v. Fibus, 855 F.2d 660 (9th Cir.1988) (automobile policy which provided up to $100,000 for damages for bodily injury to any one person in one occurrence, and which did not expressly aggregate consortium claims with underlying bodily injury claims, would be interpreted to provide separate coverage for consortium claim); Abellon v. Hartford, 167 Cal.App.3d 21, 212 Cal.Rptr. 852 (1985) (although wife's cause of action arose from bodily injury to her husband, the injury suffered was personal to the wife and an injury to one's emotional and psychological state should be treated no differently than an injury to one's physical well-being); BILODEAU V. LUMBERMENS MUTUAL CASUALTY CO., 392 MASS. 537, 467 N.E.2D 137 (1984)¹⁰ (the phrase "injured person" included a loss-of-consortium claimant and the loss-of-consortium claimant must be considered a separate person from the bodily-injured person).

In Pogorilich, ¹¹ the Supreme Court of Rhode Island recognized that the loss of consortium claim by a spouse who has not suffered a bodily injury is a derivative action, and found that the "each person" limitation therefore applies. In so finding, the court explained:

The term 'each person' is the total limit for all damages arising out of bodily injury to one person in any one motor vehicle accident. It is undisputed that in the case at bar [the husband] was the only person who suffered...