George v. Welch, No. 98CA1736.

• Docket Nº: No. 98CA1736.
• Citation: 997 P.2d 1248
• Case Date: November 12, 1999
• Court: Court of Appeals of Colorado

997 P.2d 1248

Edwin Bruce GEORGE, Plaintiff-Appellee,
v.
Wade Michael WELCH, Defendant-Appellant

No. 98CA1736.

Colorado Court of Appeals, Div. I.

November 12, 1999.

Certiorari Granted April 24, 2000.

997 P.2d 1250

J.J. Vick, Greeley, Colorado, for Plaintiff-Appellee

Wick Campbell Bramer Ukasick & Trautwein, LLC, Troy A. Ukasick, Kimberly B. Schutt, Fort Collins, Colorado, for Defendant-Appellant.

Opinion by Judge VOGT.

In this personal injury action, defendant, Wade Michael Welch, appeals the judgment entered on a jury verdict in favor of plaintiff, Edwin Bruce George. We affirm.

Plaintiff and his wife were involved in a multi-vehicle accident in which their car was struck by a car driven by defendant. They sued to recover damages for personal injuries, asserting claims for negligence and negligence per se as well as separate claims for loss of consortium.

Shortly after the action was filed, plaintiff's wife settled with defendant. She subsequently separated from plaintiff and moved to another state, but returned to Colorado to testify for plaintiff at trial.

At the conclusion of the trial, the jury returned a verdict in favor of plaintiff, awarding him damages in the amount of $120,000. Defendant's motion for a new trial was denied.

I.

Defendant first contends that the trial court erred in allowing the jury to consider plaintiff's claim for loss of consortium. We disagree.

Before trial, defendant filed a motion to "preclude any claim or evidence of loss of consortium" at trial. He asserted that the claim was barred by a release executed by plaintiff's wife when she settled. Additionally, he argued that, since plaintiff's loss of consortium claim was derivative of his wife's claims, plaintiff could not prevail because he could not establish that his wife would have met the threshold requirements under the Colorado Auto Accident Reparations Act (No-Fault Act) for bringing suit for her own injuries. The trial court denied the motion.

Plaintiff's wife testified that she was injured in the accident. However, there was no evidence that she needed medical treatment with a value in excess of $2500, as required under the No-Fault Act, § 10-4-714(1)(e), C.R.S.1999. Defendant moved for a directed verdict on the loss of consortium claim on this basis. The court denied the motion and instructed the jury on the elements necessary to establish loss of consortium. The verdict form did not indicate whether the jury found in favor of plaintiff on this claim or whether any portion of its damage award was for loss of consortium.

A.

Initially, we reject defendant's contention that plaintiff's loss of consortium claim was barred by the release signed by his wife.

A husband's loss of consortium claim arising out of injuries to his wife is separate and distinct from the wife's own claims arising

997 P.2d 1251

out of her injuries. See Crouch v. West, 29 Colo.App. 72, 477 P.2d 805 (1970)

By settling her own claims against defendant, plaintiff's wife was not thereby releasing defendant from liability as to claims belonging to her husband. Although the release states that it includes "a release of any and all claims for loss of consortium," it is signed only by plaintiff's wife, and contains nothing to indicate that she was authorized to release plaintiff's loss of consortium claim as well as her own. Further, the stipulation filed with the court at the time of settlement stated that the remaining parties understood and acknowledged that plaintiff's claims would not be "affected by, prejudiced, nor compromised in any manner" by the fact of his wife's settlement.

B.

Nor do we agree that, to establish his loss of consortium claim, plaintiff was required to prove that his wife suffered an injury that met the threshold requirements of the No-Fault Act.

The No-Fault Act provides that a person entitled to personal injury protection benefits may not recover for "damages for bodily injury caused by a motor vehicle accident" unless one of certain enumerated threshold requirements is met, including, as pertinent here, a reasonable need for medical services whose value exceeds $2500. Section 10-4-714(1)(e).

Although loss of consortium is a personal injury, it is not "bodily injury." See Lampton v. United Services Automobile Ass'n, 835 P.2d 532 (Colo.App.1992). Thus, § 10-4-714(1)(e) does not by its terms apply to loss of consortium claims. Defendant nevertheless argues that, because plaintiff's loss of consortium claim is derivative of his wife's bodily injury claim, the same defenses that would apply to her claim—including failure to meet the No-Fault threshold—should apply to plaintiff's loss of consortium claim as well.

Contrary to defendant's contention, a claim for loss of consortium is not necessarily derivative for all purposes. See Rains v. Kolberg Manufacturing Corp., 897 P.2d 845 (Colo.App.1994).

In Lee v. Colorado Department of Health, 718 P.2d 221 (Colo.1986), on which defendant relies, the supreme court held that a wife's claim for loss of consortium was a separate injury within the meaning of the Governmental Immunity Act, but was derivative for purposes of attributing her husband's contributory negligence to her. In analyzing the issue, the court acknowledged that "neither the derivative nor the independent approach is able to resolve all the conceptual problems that a claim for loss of consortium holds out for other areas of the law." Lee v. Colorado Department of Health, supra, 718 P.2d at 232. The court observed that it may be appropriate to consider the purpose of the statute at issue in determining whether to treat loss of consortium as an independent or as a derivative claim.

Looking to the legislative purpose of the No-Fault Act does not fully resolve the issue presented here. The stated purpose of the Act itself is to avoid inadequate compensation to victims of automobile accidents, see § 10-4-702, C.R.S.1999, and the Act is to be construed to further that remedial and beneficent purpose. Adams v. Farmers Insurance Group, 983 P.2d 797 (Colo.1999). On the other hand, the purpose of the threshold requirement in § 10-4-714(1)(e) is to keep minor claims from clogging the courts. See Bushnell v. Sapp, 194 Colo. 273, 571 P.2d 1100 (1977). Construing plaintiff's loss of consortium claim as derivative of his wife's claim in this case, as defendant urges, would be consistent with the latter purpose but not with the stated goal of the No-Fault Act as a whole.

For the reasons set forth below, we conclude that a spouse's loss of consortium claim is not derivative of the other spouse's bodily injury claim for purposes of the threshold requirements...